By Jeff Stein
In this post, I will claim that improvements to the speech environment are central to the projects that we’ve been engaging with this year. I will argue that this conclusion follows from a text that ostensibly places the health of the speech environment (including online or “virtual” publics) at the periphery of its argument: Judith Butler’s Notes Toward a Performative Theory of Assembly. Notwithstanding this feature of the text, I argue that its project depends on systems that enable productive speech that maximizes opportunities for mutual understanding.
Butler’s illustration of the assembly, including its performative significance and temporal elements, prompts two observations that bolster my claim: (1) regardless of the assembly’s unique importance, it is dependent on and intertwined with the larger speech environment; (2) if assemblies occur in “virtual” public spaces, as Butler suggests, then we must investigate that nature of those virtual spaces to consider whether they will support “an assembly of the people on the grounds of equality.” Ultimately, I query whether the current speech environment will support Butler’s conception of physical and virtual assemblies, given its many inegalitarian features.
Butler implores us to think of the assembly itself as vital to any larger egalitarian project. For Butler, assemblies are “assertion[s] of plural existence” that “open the way to a form of improvisation in the course of devising collective and institutional ways of addressing induced precarity.” In their telling, assemblies allow for recognition, for presenting “a public insistence on existing and mattering.” Moreover, assemblies are the enactment of a “we” that congeals “prior to” the articulation and vocalization of “political demands.” “The ‘we’ voiced in language,” Butler writes, “is already enacted by the gathering of bodies, their gestures and movements, their vocalizations, and their ways of acting in concert.” Crucially, while Butler admits that assembly and speech may bleed together, their thesis depends on the idea that “the assembly is already speaking before it utters any words.”
This expressive performativity—this assertion that we are a “people,” or “the people” or “still the people”—deserves analysis in its own right. But just as Butler is right to note that an assembly may “speak” before words are uttered, any project that centers the power of assemblies must not elide the communication and organization that necessarily precedes the assembly’s performance of precarity and solidarity. That is, verbal and visual communication, supported by physical and digital infrastructures, precede the assembly, just as the assembly precedes the political and social demands of “the people.”
Communications scholars have researched the “complex ecology” of speech production and its salient role throughout the life cycle of an assembly. For example, Professors Zeynep Tufekci and Christopher Wilson documented “a complex intertwining of multiple online and offline spheres” in relation to the January 25, 2011 Tahrir Square demonstrations. Notably, Tufekci and Wilson found that nearly half (48.4%) of protestors “first heard about the Tahrir Square demonstrations through face-to-face communication” but that “[i]nterpersonally oriented media,” like Facebook (28.3%) and telephone (13.1%) “were the next most common first sources.” Moreover, their research revealed that “texting … was rarely the means by which someone first heard about the protests (0.8%), even though it was used widely for sharing information about the protests (46%).”
Thus, the assembly is directly shaped by the current infrastructures that mediate speech production. Even protestors who do not initially hear of a spontaneous assembly via social media platforms or messaging apps necessarily participate in an assembly influenced by those media. As Tufecki notes, Internet communications affect “all members of that society, whether a person uses the internet or not … Who is visible? Who can connect with whom? How does knowledge or falsehood travel? Who are the gatekeepers? The answers to each of these questions will vary depending on the technologies available.” If the assembly is to be an expression of “the people” —who persist through precarity and experience new, improvised forms of being together—then we must consider the visibility and connectivity of individuals before they assemble.
Butler, for their part, claims that “we know that social networking produces links of solidarity that can be quite impressive and effective in the virtual domain.” But there is good reason to believe that the dominant Internet communications infrastructures distort “the people” who assemble in physical and virtual spaces. Social media platforms leverage their “network-making power” (i.e., their ability to control the structure mediating networks) in ways that implicate offline and online assemblies: many platforms “force or nudge” people to use real names, but primarily enforce such policies against political activists and journalists (in some cases, at the behest of governments); inspired by advertising, attention-seeking, and legal (i.e., intellectual property-related) imperatives, platforms use opaque algorithms to determine what content gets promoted, censored, or buried; complex and inequitably-applied content-moderation policies often result in oppressed minorities—particularly women and people of color—feeling unsafe and harassed when using platforms to communicate or consume media.
Other features of online communications and infrastructure call into question the formation of a “people” through “virtual” assembly. For some time now, the Internet itself has been a “simulacrum of the Internet, where the only real things [are] the ads”; at times, a majority of Internet traffic is simply “bots masquerading as people.” And even though activists use Facebook and other social media platforms, at least in part, “as a coffee shop, which scholar Jürgen Habermas famously idealized as the cornerstone of a critical public sphere,” these digital coffee shops are not connected by public thoroughfares; indeed, twenty years ago, scholars began to observe the disappearance of “sidewalks in cyberspace” and the problematic nature of private ownership of Internet bottlenecks. Today, large swaths of digital infrastructure—“internet service providers (ISPs), web-hosting services, Domain Name System (DNS) registrars and registries, cyber-defense and caching services (such as Cloudflare and Akamai), and payment systems (such as PayPal, Mastercard, and Visa)”—are privately owned. Thus, not only is the digital coffee shop exclusionary and manipulative in nontransparent ways, travel to the digital coffee shop is mediated by a series of private gatekeepers who are driven by capitalist imperatives and susceptible to government pressure.
Given these features of modern digital communications, I question the generative force of physical and virtual assemblies without a reassessment of the architectures and infrastructures that necessarily contribute to the formation of assemblies. Indeed, as Butler recognizes, “[a]s long as the state controls the very conditions of freedom of assembly, popular sovereignty becomes an instrument of state sovereignty, and … the freedom of assembly has been robbed of both its critical and its democratic functions.” This critique must be extended to the powerful private entities that mediate offline and online assemblies. If assemblies are to do independent work in collective struggles for a more egalitarian future, we must tend to the inegalitarian online spaces and infrastructures that intervene before “the people” can improvise moments of being together, whether physically or virtually.
 Judith Butler, Notes Toward A Performative Theory of Assembly 154, 181 (2015).
 Id. at 16, 22.
 Id. at 37.
 Id. at 182.
 Id. at 157.
 Id. at 156.
 Id. at 181.
 It is worth noting a temporary intersection with the ideas of Chantal Mouffe, who describes her project of “left populism” as “a discursive strategy of construction of the political frontier between ‘the people’ and ‘the oligarchy’, [that] constitutes, in the present conjuncture, the type of politics needed to recover and deepen democracy.” Chantal Mouffe, For a Left Populism 5 (2018). Mouffe’s hegemonic political project rests on “the establishment of a chain of equivalence among the demands of the workers, the immigrants and the precarious middle class, as well as other democratic demands, such as those of the LGBT community. The objective of such a chain is the creation of a new hegemony that will permit the radicalization of democracy.” Id. at 24. Irrespective of the normative appeal of this project—which some seminar participants critiqued as “appropriation of Carl Schmitt for left emancipatory theory”—any formation of “the people” and “the establishment of a chain of equivalences” necessarily follows from the same complex speech ecology that Butler elides. See, e.g., Selya Benhabib, Brief Reflections on Populism (Left or Right), Praxis 13/13 (Feb. 10, 2019), https://blogs.law.columbia.edu/praxis1313/seyla-benhabib-brief-reflections-on-populism-left-or-right/; Jean L. Cohen, What’s Wrong with the Normative Theory (and the Actual Practice) of Left Populism?, Praxis 13/13 (Feb. 7, 2018), https://blogs.law.columbia.edu/praxis1313/jean-l-cohen-whats-wrong-with-the-normative-theory-and-the-actual-practice-of-left-populism/.
 Zeynep Tufekci & Christopher Wilson, Social Media and the Decision to Participate in Political Protest: Observations From Tahrir Square, 62 J. Comm. 363, 365 (2012).
 Id. at 376.
 Id. at 370.
 Zeynep Tufekci, Twitter and Tear Gas 117 (2017).
 Butler, supra note 3, at 153.
 See Manuel Castells, Communication Power (2009); see also Anthony Cuthbertson, Who Controls The Internet? Facebook and Google Dominance Could Cause The ‘Death Of The Web’, Newsweek (Nov. 2, 2017), https://perma.cc/Z98U-92ES (noting that “[s]ites and services owned and operated by Facebook and Google-such as WhatsApp, YouTube and Instagram-now account for over 70 percent of all internet traffic, compared to a joint market share of around 50 percent in early 2014”) (citing Andre Staltz, The Web Began Dying in 2014, Here’s How, Stalz.com (Oct. 30, 2017), https://perma.cc/DB7N-DS9Q).
 See Tufekci, supra note 18, at 142.
 See, e.g., Tim Wu, The Attention Merchants: The Epic Scramble to Get Inside Our Heads (2016); Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday (Aug. 2, 1999), https://firstmonday.org/ojs/index.php/fm/article/view/684/594 (“[W]hat’s at stake is the control of the scarcest resource of all: our attention. Conscripting that makes all the money in the world in the digital economy, and the current lords of the earth will fight for it.”).
 See generally Matthew Scherb, Free Content’s Future: Advertising, Technology, and Copyright, 98 Nw. U. L. Rev. 1787 (2004); see also Jean G. Vidal Font, Sharing Media on Social Networks: Infringement by Linking?, 3 U. P.R. Bus. L.J. 255, 267 (2012).
 See generally Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (2015); Tufekci, supra note 19, at 159 (“The platforms’ algorithms often contain feedback loops: once a story is buried, even a little, by the algorithm, it becomes increasingly hidden. The fewer people see it in the first place because the algorithm is not showing it to them, the fewer are able to choose to share it further, or even to signal to the algorithm that it is an important story. This can cause the algorithm to bury the story even deeper in an algorithmic spiral of silence.”).
 See Emily Chang, What Women Know About the Internet, N.Y. Times (Apr. 10, 2019), https://www.nytimes.com/2019/04/10/opinion/privacy-feminism.html (“It isn’t just that real-life harassment also shows up online, it’s that the internet isn’t designed for women, even when the majority of users of some popular applications and platforms are women. In fact, some features of digital life have been constructed, intentionally or not, in ways that make women feel less safe”).
 See Max Read, How Much of the Internet Is Fake? Turns Out, a Lot of It, Actually, N.Y. Mag. (Dec. 26, 2018), https://nymag.com/intelligencer/2018/12/how-much-of-the-internet-is-fake.html (“Studies generally suggest that, year after year, less than 60 percent of web traffic is human; some years, according to some researchers, a healthy majority of it is bot. For a period of time in 2013, the Times reported this year, a full half of YouTube traffic was ‘bots masquerading as people,’ a portion so high that employees feared an inflection point after which YouTube’s systems for detecting fraudulent traffic would begin to regard bot traffic as real and human traffic as fake. They called this hypothetical event ‘the Inversion.’”).
 Tufekci, supra note 19, at 138; see also Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (describing social media platforms as the “modern public square,” and noting that “[t]hese websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”).
 See Noah D. Zatz, Note, Sidewalks in Cyberspace: Making Space for Public Forums in the Electronic Environment, 12 Harv. J.L. & Tech. 149, 207 (1998) (describing “existing bottlenecks in the organization of cyberspace: search engines and directories, the ISP of the target server, and the Domain Name Service (‘DNS’) server of the audience member.”).
 Jack M. Balkin, Free Speech Is A Triangle, 118 Colum. L. Rev. 2011, 2014–15 (2018).
 Butler, supra note 2, at 163.