Digital Constitutionalism and Online Content Moderation: Moving Beyond Discourse

This paper critically engages with the legal literature on ‘digital constitutionalism’, understood as the academic and political project of articulating constitutional values (fundamental rights, rule of law, checks and balances, democracy) in the operations and practices of the Internet. In the tradition of legal pluralism and systems theory, it argues that the project has explanatory power in the digital age. Building on the Teubnerian account, the paper presents two propositions: 1) it identifies private regimes in cyberspace that are producing norms that perform constitutional functions (such as self-restraint) and/or involve constitutional arenas, processes, or structures; and 2) offers a case study in social media platforms regarding content moderation to exemplify the emergence of these transnational constitutional norms. The paper concludes with some final thoughts on the need to bring more specificity and substance to the conceptual apparatus of ‘digital constitutionalism’.