Hallin Spheres, Overton Windows, Constitutional Interpretation, and Online Platforms (oh my!)

Hallin Spheres, Overton Windows, and certain theories of constitutional interpretation[1] are all ways of thinking about what can and cannot be argued successfully, or at all, within different contexts. They are very applicable to our current discussion about online platforms and the types of speech they contain. This post aims to briefly describe all three, and how they might apply to online speech. One thing that seems to follow from thinking about the Internet and online platforms through these lenses is that the widening of participants that the Internet brought tends to increase the types of arguments that can be had and tends to decrease the amount of consensus available. While I am generally optimistic about the change as a way of accelerating social progress and bringing more, previously marginalized people into the "room where it happens," some people and ideas were marginalized for very good reason. Implementing global platforms or communities inclusively, but only towards progress seems possible but I don't yet know of a good example of it being done successfully at scale. (If you know of more, I'd love to hear about them!)

Hallin Spheres
Daniel Hallin is a journalist and professor of media systems who wrote The Uncensored War: The Media and Vietnam about the way journalists covered the Vietnam war through a description of three spheres of ideas on which journalists report. At the two extremes are the sphere of consensus, for ideas journalists assume their readers accept and agree with; and the sphere of deviance, for ideas that the journalists believe their readers disagree with vehemently. Between the two is the sphere of legitimate controversy where a journalists assumes her readers believe that there may be debate. These spheres come together like a donut, with the sphere of deviance outside the donut, the sphere of legitimate controversy making up the dough, and the sphere of consensus, the hole in the middle (the Canadian in me can't help but think of it as the Timbit of consensus).

Hallin observed that within the spheres of deviance or consensus, journalists would deviate from "objective" journalism in a variety of ways, such as adopting sphere of consensus views without challenge, excluding sphere of deviance sources and ideas from any mention in their stories, and generally reinforcing the divisions between the spheres. For more specifically on Hallin Spheres and the effect of the the Internet on mainstream media ability to maintain them, see Jay Rosen,  Audience Atomization Overcome: Why the Internet Weakens the Authority of the Press (more on that below). A diagram from Hallin's book discussing the spheres is below from Google Books.

From Hallin, Daniel, The Uncensored War: The Media and Vietnam,
University of California Press (1989), p 117.


The Overton Window
Joseph Overton was writer and think tanker who proposed the window as a metaphor for understanding which ideas are viable from a political perspective in a certain community. Ideas in the window are viable and can be debated and adopted. Ideas outside the window cannot. Overton appears to have seen the window along a continuum of more and less government intervention (which many on the right would call "less free" and "free") and believed that while the window constrained policy discussions, it was political and social forces that could change whether ideas were inside or outside of the window. The Overton Window has been in the news a lot lately as a way to explain that normalizing extremely radical ideas can move the whole window towards those ideas and thereby move some slightly less radical ideas into the center of the window. For example, see Politico's How an Obscure Conservative Theory Became the Trump Era’s Go-to Nerd Phrase and Vox Media's description.

Image of the Overton Window from
Wikipedia.
Constitutional Interpretation
I've had a harder time coming up with a good source or pithy name for these same ideas in constitutional interpretation. The first time I learned about them was in an Advanced Constitutional Law class I was lucky to take from Professor Lawrence Lessig. My recollection / understanding is as follows, but all errors are mine, not his. First off, the Constitution is made of words. A lot of constitutional law is about interpreting those words and how they might apply to situations in a particular case. For example, is death by a particular lethal injection "cruel and unusual punishment" and therefor illegal under the Eighth Amendment? There are a bunch of different ways to go about this and some significant disagreement among jurists, however the question that Lessig was asking was, is there a context behind all of this that makes some thoughts thinkable by the Supreme Court Justices, while others are not?[2] For example, how do all but one of the Justices in Plessy v. Ferguson, not understand that separate is not equal, whereas almost sixty years later, all of the Brown v Board of Education Court does? Compare:
"The object of the [fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced." Plessy v Ferguson, 163 U.S. 537, 544 (1896)
with:
"To separate [students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. ... We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal." Brown v Board of Education, 347 U.S. 483, 494-5 (1954)
For more on these cases, listen to the difference between the oral arguments in Plessy and Brown, and read Justice Harlan's dissent in Plessy.  In the language of Hallin Spheres, segregation being detrimental and not "equal," moved from pretty close to the sphere of deviance for the Court, to the Sphere of consensus. And, there have been similarly important, radical, and progressive shifts in Supreme Court understanding of specific words in the constitution in many other areas that I care about.[3]

Enter, the Internet
As Jay Rosen and Shaun Lau have said better than I ever could, the Internet and its propensity to allow for many more speakers to join the conversation[4] have had a significant effect on windows and spheres in the mainstream media, on internet media, and in society at large.

Rosen gives a great description of Hallin Spheres and argues that the "audience's" increased ability to talk among themselves and talk back to bigger media players weakens the big media players ability to maintain the spheres without challenge:
"Now we can see why blogging and the Net matter so greatly in political journalism. In the age of mass media, the press was able to define the sphere of legitimate debate with relative ease because the people on the receiving end were atomized— meaning they were connected “up” to Big Media but not across to each other. But today one of the biggest factors changing our world is the falling cost for like-minded people to locate each other, share information, trade impressions and realize their number. Among the first things they may do is establish that the “sphere of legitimate debate” as defined by journalists doesn’t match up with their own definition. ... what’s [] happening is that the authority of the press to assume consensus, define deviance and set the terms for legitimate debate is weaker when people can connect horizontally around and about the news." Jay Rosen,  Audience Atomization Overcome: Why the Internet Weakens the Authority of the Press
Lau makes the same point before expanding on it to a bigger point about how internet communities affect discourse in this excellent thread. He's writing about how Jemelle Hill's description of Donald Trump as a white supremacist was seen by ESPN as in the sphere of deviance, whereas many on the Internet disagreed. You should go read it.
Among the many good points Lau and Rosen make is that Hallin Spheres are also about understanding consensus. As more people are included in a community, the sphere of legitimate controversy tends to grow. As it grows, it likely takes some space away from the sphere of consensus. As Lau says:
"Put only Montagues in a room, and you have consensus. Now put a few Capulets in. 'What happened to all the consensus?' The answer is that there never was consensus; there was only agreement among those with access or those represented by those with access. "Internet pushback" when the internet- and very specifically twitter- is more meritocratic than, let's say large corporations like ESPN? That's not "the internet" pushing back. It's those who you didn't allow in the room before we forced our way in via new technology. PEOPLE." From @NoTotally Twitter thread, Sept. 15, 2017.
Both of these observations mean that it can be harder to create spheres of consensus, that it is harder to maintain them once created, and that we might expect spheres of legitimate controversy to grow.[5]

This is good?
Years of forward societal progress based in part on expanding and shifting the Overton Window and sphere of legitimate controversy may make you think, this is great! But hold on, some ideas are in the sphere of deviance for a reason. Racism is one good and sadly timely example. Same with some people. The Internet and its platforms have created many spaces for marginalized people to congregate and become less marginalized by removing gatekeepers who might enforce spheres and windows to exclude.[6] On the internet, nobody needs permission to speak. Again, that's often good progress. But, some groups are marginalized for a very good reason. Nazis are a good and sadly timely example. Bringing racism and Nazis back into the window is VERY, VERY BAD, and yet the relative lack of speech gatekeepers in the U.S. Constitution, on the Internet, and on many Internet platforms may make this more likely. This is not a malfunction, but a design feature of the Internet and many of its platforms.

What can online platforms and communities do?
It is worth noting that spheres and windows are a bit of a misnomer for these phenomenon because not only can they be different sizes in different communities, they can also be pretty permeable along the edges and can change size or permeability. Just as importantly, they can change shape. There is nothing that says that a particular society, medium, or context needs to treat all ideas that are equidistant from the center of consensus as equal. The sphere need not be a sphere, it can be oblong and irregular. The window can be slanted and weird looking. In other words, it is not a law of nature that determines that two ideas that are believed by a similar number of people need to be treated the same. That said, I don't know of many good examples outside of heavily editorial ones with a relatively small set of content producers, that have been able to be both extremely inclusive and progressive towards what I think are the "right" kind of marginalized ideas while keeping out the ones that I think are marginalized for very good reason (and I use "I" here as a measure because different people differ quite a bit on these judgments).[7] If anything, there are concerns that attempts to suppress speech by groups that should be marginal are often used against those that shouldn't.[8]

Many of the larger Internet platforms are trying, with varying degrees of success and failure, to do this right, as I was when I worked at Google and Twitter. That said, I don't have a great example of a platform or community that is working exactly as I would like. And it seems like that is a big and worthy challenge. Anyhow, there is probably a whole 'nother post from me on this, but that's for another day, this one is already long enough.

P.S. If you have examples of platforms or communities doing this extremely well at scale, please forgive me for not including them and help me fix my error by pointing me towards them @amac.



[1] I am an expert in none of these, but I have found them to be very useful concepts. [return]
[2] One of the questions that Professor Lessig asked that I think is really interesting, but not quite on point for this post is "What is the thing that we can't really consider today because it almost unthinkable, but our grandchildren will think is so obviously true that it is unthinkable to debate against?" [return]
[3] For example, see Obergefell v. Hodges, 576 U.S. ___ (2015). [return]
[4] This has clearly not been uniform progress. Even as the speech gatekeepers have receded and allowed more people to speak, harassment, trolling, aggressive spamming, false flagging, and other techniques are being used to suppress speech and drive speakers, particularly those who have historically been marginalized, away from these platforms. [return]
[5] I also believe that these two effects have negatively impacted trust in institutions more generally.  [return]
[6] See note 4. [return]
[7] Spam or illegal content might be good examples of this at some of the major services. [return]
[8] See e.g. Daphne Keller, Inception Impact Assessment: Measures to further improve the effectiveness of the fight against illegal content online, Comment to the European Commission, March 29 2018 (discussing the potential for disparate impact of rules requiring internet platforms removal of terrorist content).[return]

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