Infernal Machine   /   September 24, 2014

Virtual Assembly and the Legal Limits of Digital Dualism

John D. Inazu

What are the implications of the First Amendment’s right of assembly to the lives we increasingly lead online? I have spent a fair amount of time over the past few years exploring the meaning and significance of “the right of the people peaceably to assemble,” but I have only recently begun to consider its applications in an online context. My first effort to think about “virtual assembly” was in an article published last year in the Cornell Law Review from which the following reflections are drawn.

The Scope of the Assembly Right

While many people may think of the right of assembly as covering temporal gatherings like a school celebration or a political protest, its scope is far broader. Protecting the moment of expression often requires protecting the group that makes that expression possible. Put differently, the verb “assemble” in the text of the First Amendment presupposes a noun—an assembly. And while some assemblies occur spontaneously, most do not. Most assemblies emerge from people who come together long before they hold protests or conventions. Our “pre-political” and “pre-expressive” groups enable our ordinary activities to develop into extraordinary ones. And those groups are among the most vulnerable to government monitoring and interference.

These observations extend to our online groups, differently embodied and displaced though they are. In fact, the virtual dimensions of assembly may yield insights for how we understand more traditional assemblies and the legal protections that we assign to them. Consider, for example, how our online groups may serve as early indicators of possible infringements of the right of assembly. One of the reasons that government officials usually ignore our most informal offline groups is that these groups often lack visible boundaries—there are often no membership lists or widely available indicia of the individuals who constitute “the group.”

But the boundaries are more pronounced online. A Facebook group lets us know who is in and who is out. Even the most informal Facebook group signals a more concrete form of exclusion and embrace than its offline counterpart. Our private boundary lines are more publicly visible online, and that visibility is more likely to attract the attention of government officials.

Virtual Assembly as Community

Despite their more pronounced boundaries, I was initially skeptical of the deeper significance of online groups. I am not on Facebook or Instagram, and I only recently succumbed to the professional pressure of Twitter. I knew that online connections could facilitate otherwise improbable interactions, and that they could simplify logistics and efficiencies for everything from flash mobs to political protests. But I was less certain about other questions, such as whether meaningful relationships and ways of life could really flourish online.

My thinking began to change when I came across Howard Rheingold’s work. Rheingold started writing about online communities in the early 1990s, which in virtual time places him somewhere in the vicinity of Plato. But he wrote movingly—and convincingly—of the deep social connections and communities fostered by online interactions. Other writers described the emotional shelters that online groups created for pregnant women, cancer patients, drug addicts, and numerous other affinity groups. I discovered online gaming communities and online churches, and not all of them seemed flaky.

There are, of course, plenty of shallow and harmful online groups. But as Rheingold noted in 1993, “it is dangerous to mindlessly invalidate the experiences of a person for whom Internet communication is not a luxury but a lifeline.”

These kinds of observations helped frame my approach to the project of virtual assembly, and to the legal, cultural, and normative questions that followed. I learned a great deal about the ways in which online groups contribute to important First Amendment interests like identity formation, self-governance, and dissent.

I also learned that the dynamic line between virtual and non-virtual groups often frustrates efforts to draw legal and cultural distinctions between them. Many of us use online connections to sustain relationships that begin offline.  And many relationships that begin online move offline. Online dating services lead to offline relationships. Business relationships initially formed through social networking sites lead to in-person meetings and partnerships. Lawyers who find clients in online worlds represent them in offline proceedings. (And, of course, lots of bad things can also happen when online relationships migrate offline.)

The connections between our online and offline groups suggest that we need to think carefully about the constitutional protections for those groups. Protecting values like identity formation, self-governance, and dissent depends on protecting the boundaries of these groups. But these protections are not cost free. Resistance to monitoring can complicate legitimate law-enforcement efforts. Exclusive groups can weaken antidiscrimination norms and hinder equality of opportunity. Deep attachments that we form with others can complicate our psychological ability to exit from groups. (As one example, I’m discovering the nontrivial psychological pressure that prevents me from “unfollowing” someone on Twitter.) We have been weighing these costs and benefits in our offline groups for some time, and it will be important to extend these considerations online as well. The online context might call for modified doctrinal applications. It might also cause us to rethink our existing offline frameworks.

Looking Back as We Look Ahead

The law is an imperfect and limited resource, online and off. Many of the looming questions may well be resolved by institutional and technological design rather than by legal doctrine. But recognizing that some ideals are largely beyond judicial competence should not cause us to cut short our normative aspirations for law. In the case of our online groups, we can meet some of the challenges that lie ahead by looking back: to the right of the people peaceably to assemble.