Four years ago, Americans watched our national language start to shift, with symptoms that included a president who claimed fake news and alternative facts, and extremists who spoke hate-filled worlds into being by creating languages of mutually reinforcing propositions that sealed the speakers off from the rest of the infosphere. Our national conversation splintered, profoundly hampering our ability to move forward and address problems of the future. And America did fail to address the problems the future brought, from privacy, to social media, to domestic terrorism, to a global pandemic that raged unabated because those in power were not willing to craft language that helped citizens come to grips with a new and deadly context.
Watching the recent presidential inaugural address, and particularly poet laureate Amanda Gorman’s ringing language, I was struck again by the simplicity of the idea: to handle the problems of the future, we will need to develop language that helps us cooperate, language to name the problems we are facing, language like “all people are created equal” that serves as a building block on which we can place other norms, expectations, and bits of language.
Law is language, a very special kind. It is our language of cooperation, which we use to face the challenges of the future. Humans have a superpower. We are a super-cooperative species, and our method of cooperation is the crafting of symbols, webs of meaning, bits of culture, hashtags, and more. We cooperate at the hundred-million-person scale through symbols and texts like the United States Constitution. Phrases like “all [people] are created equal” have given us the purpose, as Gorman recited, to build a better union. We make progress by upgrading our language of law, by inventing new words and phrases that refresh ideas of justice, that call injustices into the light. The invention of that language is the invention of law. It is the path by which we come to grapple with new things.
Technologies emerge and shift the context for human interaction and social institutions at a stunning pace, leading people to ask whether law can keep up with technology. Social media among others has done this with devastating effects, as the events of the past weeks have proven. Extremists have found their bile amplified by algorithms, suicides have increased among children, political divisions have deepened, and more and more people are lacking the support of a community that is necessary for human thriving, leaving them at the mercy of communities of conspiracy theorists who speak cancerous narratives into being.
In the midst of these challenges of the future, techno-utopians tell us that law has only a reactionary role to play, that law can’t keep up with technology, and that only big tech companies can solve the problems they created. It’s propaganda. The country is not divided because tech is uncontrollable, companies have merely created the lie that it is, and the very purpose of that lie is to stave off even the most reasonable legal restraints. Now the companies that fostered disinformation and misinformation, who have poisoned and plundered our national language for profit find at the very last minute that they can take action after all, after it is all far too late.
Those companies are wrong. The force that constrains them is the same as it has always been: humans banding together. People describe the wrongs that they experience like the Capitol Riots, Charlottesville, Qanon, and Cambridge Analytica, then name them in legal terms such as sedition, insurrection, conspiracy, and invasion of privacy. We develop webworks of meanings that package the varied systemic injustices that infect our culture (especially our culture of the workplace, policing, and incarceration) under the linguistic banners of #MeToo and Black Lives Matter.
If law were just dusty codes in books, written after the fact, it would be true that it cannot keep up. But that is not at all what law is. Laws emerge from community language, societal norms that form as people live together. These norms become codified as judicial opinions, statutes, and administrative rules, but they are born as an attempt by people to develop a language of cooperation, an assertion of what is fair and right between us. New technologies such as self-driving cars, the internet, social media, or blockchain change the context for human interaction, and people create new norms for new ways of living together. The challenge is to build better norms, better reasons why we build technology, and an “all people are created equal” for the future. Law has often seen itself as a backseat driver, forced into a role of ineffective nagging as technologists move fast and break democracy. But once we understand that the role of law is to provide a guiding why for the development of technology, we can be about our task. Australia and New Zealand have acted promptly to curtail the spread of social-media-propagated violence. Germany has effectively constrained Nazi propaganda over Facebook, directly in the face of Facebook’s claims it could not be done. The European Union has not only passed, but passed, tested, reworked, and restated law on personal data and privacy, a model that is now being copied by US states tired of waiting for Congress to act.
The past several years have served as a masterclass in how attacks twisting our national language can erode our legal institutions to the point of making the world wonder whether the United States follows the rule of law at all. The opposite lesson is worth learning. We must prize, amplify, innovate, and develop the language we use to describe how we can work together to solve the problems of the future, not least of which is the problem of those who have seized our national language and undermined democracy for profit. Not only can our language keep pace with our experience, but we can sprint ahead, finding new ways to talk about the responsibilities of these companies, and turning their innovation once again to the task that Amanda Gorman laid out for us of building a union with purpose.