By Jeff Stein
In earlier writings for this seminar, I have claimed that left projects may be, at best, distorted and stunted by the currently unhealthy speech environment and, at worst, overwhelmed by pathologies that metastasize under current conditions. Assuming these claims are true, I argue in this post that at least one form of critical praxis should be the creation of the conditions for recursive publics where communicative action might flourish. Notwithstanding some of the uncharted aspects of operation of recursive publics, today’s speech environment is undoubtedly a “space at risk.” Thus, our critical praxis must focus on the development of a more egalitarian speech environment, which necessitates more egalitarian communication architectures.
- The Ideal of Communicative Action and a Healthy Public Sphere
To guide my imagination of a healthier speech environment, I turn to the theories developed by Jürgen Habermas, particularly his Theory of Communicative Action. For Habermas, the “inherent telos” of communication is mutual understanding; thus, Habermas distinguishes “communicative action” (speech acts oriented towards mutual understanding) with “strategic action” (coordination that is “dependent on the influence—functioning via non-linguistic activities—exerted by the actors on the action situation and on each other”). As philosopher Joseph Heath explains: “The point [of the theory of communicative action] is not to deny that speech acts can be performed with the intention to mislead or confuse, but rather to affirm that an orientation toward mutual understanding is an enabling precondition of communication systems in general.”
Moreover, communicative action is, in Habermas’s telling, a building block of “the public sphere,” which itself acts as a “network for communicating information and points of view,” filtering and synthesizing streams of communication into “topically specified public opinions.” The “communication structure” that facilitates the public sphere must itself reflect the inherent telos of communication, enabling participants in the public sphere to engage in coordinating speech acts free of coercion, constraints, and (self-)deception. Indeed, Habermas notes, “structures of a power-ridden, oppressed public sphere exclude fruitful and clarifying discussions,” thus undermining the legitimacy of the resulting public opinion. Instead, “[b]efore it can be captured by actors with strategic intent, the public sphere together with its public must have developed as a structure that stands on its own and reproduces itself out of itself.”
While this last observation in particular—emphasizing a habitually regenerative and democratic vision for modifying and maintaining the structures of communication—helps us imagine the types of healthier ecologies that could promote mutual understanding and legitimate will-formation, the Habermasian view has been criticized. For example, Chantal Mouffe and Ernesto Laclau argue that “the inadequacy of the Habermasian approach is [revealed] by problematizing the very possibility of the notion of the ‘ideal speech situation’ conceived as the asymptotic ideal of intersubjective communication free of constraints, where the participants arrive at consensus by means of rational argument.” Mouffe, for her part, adopts a “Lacanian approach” to argue that “discourse itself in its fundamental structure is authoritarian since out of the free-floating dispersion of signifiers, it is only through the invention of a master signifier that a consistent field of meaning can emerge.”
Aside from my larger skepticism about Mouffe’s hegemonic project—which seeks to place power and antagonism at the center of democratic politics—I think that this view underestimates the ability of collectives to democratically invent and re-invent structures with morphing “master signifiers”; indeed, “the [development of the] Internet itself, as well as its associated tools and structures,” rebut Mouffe’s assumptions about the fundamental nature of communication structures. A more productive critique—and one that ultimately supports the Habermasian vision of the public sphere as critical to democratic legitimation—comes from Professor Nancy Fraser, who offers (amongst others) two important observations about the shortcomings of Habermas’s original formulation: (1) his “assumption that it is possible for interlocuters in a public sphere to bracket status differentials and to deliberate ‘as if’ they were social equals;” and (2) his “assumption that the proliferation of a multiplicity of competing publics is necessarily a step away from, rather than toward, greater democracy.”
On the first point, Fraser is right to note that “it would be more appropriate to unbracket inequalities in the sense of expressly thematizing them—a point that accords with the spirit of Habermas’s later ‘communicative ethics.’” And on the second point, Fraser aptly describes the importance of “a plurality of competing publics” in a stratified society, given that dominant members of society will likely act to subordinate oppressed minorities in a “single, comprehensive public sphere.” Thus, Fraser advocates for the creation of subaltern counterpublics, which “signal that they are parallel discursive arenas where members of subordinated social groups invent and circulate counterdiscourses.” As we will see, these crucial addenda to Habermas’s theoretical framework can inform our imaginary of recursive publics, which in turn might provide a theoretical framework for fostering communicative action.
- Recursive Publics and Lessons from the Early Internet
If a modified version of Habermas’s theory—one that deliberately centers substantive equality and the expressive freedom of oppressed minorities—provides a useful framework, how might we operationalize its tenets through critical praxis? One way forward might be the deliberate development of “recursive publics,” a concept crystallized by Professor Christopher Kelty to describe features of early Internet communications architecture. For Kelty, a “recursive public” is “a public that is vitally concerned with the material and practical maintenance and modification of the technical, legal, practical, and conceptual means of its own existence as a public; it is a collective independent of other forms of constituted power and is capable of speaking to existing forms of power through the production of actually existing alternatives.” In other words, the shared project of the public’s participants is expressed through processes for modifying, moderating, and controlling not only the substance of communication but the architecture of the space in which the communication takes place. “Free” software is a paradigmatic example of a recursive public, as free software necessarily includes the “freedom to modify the program to suit [one’s] needs,” which in turn necessitates “access to the source code.” Kelty’s naming of recursive publics, however, stemmed not only from a desire to describe systems qua public spaces, but also out of a desire to describe the values that these infrastructures inculcate in participants:
People—even (or, perhaps, especially) those who do not consider themselves programmers, hackers, geeks, or technophiles—come out of the experience [of participating in recursive publics] with something like religion, because Free Software is all about the practices … It is a practice of working through the promises of equality, fairness, justice, reason, and argument in a domain of technically complex software and networks…”
In short, Kelty describes spaces that democratically and iteratively modify themselves in pursuit of an ideal speech situation. Moreover, the idea of “recursion” is especially provocative, as it does more work than simply describing the processes that allow participants to modify architecture and outputs; in fact, it gestures at continual critique expressed through practice. As Benthall notes, recursion should be understood as including “the drive to extend [the public’s] logic … If standards are open, then the source code should be next. If the source code is open, then the hardware is next. If the companies aren’t open, then they’re next.” Seen this way, participation in the recursive public demands critical praxis.
This critical praxis, Professor Yochai Benkler suggests, can be guided by the design choices of the early Internet. In the beginning, Benkler notes, the Internet was “biased in favor of decentralization of power and freedom to act,” featuring “an integrated system of open systems.” Notably, for our purposes, the early Internet was “designed to resist the application of power from any centralized authority;” thus, the pathologies that currently arise (due to privatized bottlenecks, hegemonic platforms, and subsequent circulation of communication through oligarchic mass media) were unable to pervade the freer, decentralized ecology. But according to Benkler, all of this has changed with the rise of centralizing forces, like the domination of Apple’s iOS app store model, and the use of mobile cellular networks as the primary physical infrastructure of Internet access (thus allowing ISPs to move Internet design towards the highly mediated telephonic communication model and further away from the decentralized early Internet). Given these architectural shifts, Benkler argues that future Internet design should include user-owned platforms: spaces that are “self-organized, distributed, discursive arrangements independent of market, state, or other well-behaved sources of accreditation or empowerment.”
The concept of recursive publics, then, might do real work in guiding our critical praxis moving forward. Creating the conditions for these spaces—which would not only give participants the ability to collectively address pathologies but could also spread egalitarian values—should be prioritized. There are, of course, major hurdles. One is a matter of education: distribution of knowledge to participate in all of the processes of recursive publics. Another is the distribution of individual access to technological tools to enable such participation. Yet another will involve hard questions about how recursive publics relate to each other in a decentralized communications ecology. Further, each recursive public—including those conceived of as counterpublics where subordinated social groups might flourish—will struggle to (or decide whether to) define the “boundaries of the demos.”
These conceptual and practical challenges, important as they are, should not discourage a critical praxis focused on overhauling communications architecture. In fact, many left projects—from Butler’s emphasis on the performative promise of the assembly to other left attempts to constitute a “people”—will struggle to get off the ground until our current architecture is deconstructed and rebuilt so as to allow communicants to engage with each other free of the distorting influence of today’s social media platforms and mass media companies. While the current theory of recursive publics may not offer all of the solutions, I argue that it usefully directs technologists, academics, and activists to imagine and build new spaces that could bring about more egalitarian communications.
 Bernard Harcourt, The Space of Praxis: An Introduction, Praxis 13/13 (May 4, 2019), https://blogs.law.columbia.edu/praxis1313/bernard-e-harcourt-the-space-of-praxis-an-introduction/.
 See generally 1 Jürgen Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society (Thomas McCarthy trans., Beacon Press 1984) (1981).
 Joseph Heath, Communicative Action and Rational Choice 23 (2001).
 Jürgen Habermas, On the Pragmatics of Communication 221 (1998).
 Heath, supra note 3, at 23.
 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 360 (William Rehg, trans. MIT Press 1996) (1992).
 Id. at 362.
 Id. at 364.
 Chantal Mouffe, Deliberative Democracy or Agonistic Pluralism?, 66 Social Research 745, 751 (1999).
 See infra for a discussion of “recursive publics,” which “are publics concerned with the ability to build, control, modify, and maintain the infrastructure that allows them to come into being in the first place,” like free and open-source software. Kelty, supra note 4, at 7; see also Yochai Benkler, The Wealth of Networks 62 (2006) (describing commons-based peer production projects in which “the inputs and outputs of the process are shared, freely or conditionally, in an institutional form that leaves them equally available for all to use as they choose at their individual discretion.”). As Sebastian Benthall has argued, these recursive publics can serve as loci for experimentation and striving towards a Habermasian ideal. See Sebastian Benthall, Designing Networked Publics for Communicative Action, 1 Interface 1, 18 (2015).
 Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy, 25 Social Text, 56, 62 (1990).
 Id. at 64.
 Id. at 66.
 Id. at 67.
 See Sebastian Benthall, The Recursive Public as Practice and Imaginary, Digifesto (May 25, 2013), https://digifesto.com/2013/05/25/the-recursive-public-as-practice-and-imaginary/.
 Kelty, supra note 4, at 28.
 Richard Stallman, The GNU Project (1998), https://www.gnu.org/gnu/thegnuproject.html.
 Kelty, supra note 4, at x—xi (emphasis added).
 Benthall, supra note 80.
 Benkler, supra note 6, at 19, 20.
 Though early digital communities certainly encountered virtual sexual violence and other harms to community members. See Jullian Dibbel, A Rape In Cyberspace: How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database into a Society, Village Voice (Dec. 23, 1993), https://www.juliandibbell.com/texts/bungle_vv.html.
 Id. Other physical architectural changes have helped drive centralization, like the phasing out of “legacy telephone copper wire” and the move to cable broadband. Id. at 22. Just as “recursive” logic suggests that digital infrastructure should become increasingly “open,” Benthall, supra note 80, we might query the extent to which truly recursive publics can exist without collective ownership and management of all physical infrastructure that undergirds the public, down to fiber optic cable. As we have discussed this year, Hardt and Negri’s call to move beyond property certainly has its limitations. See, e.g., Mikhaïl Xifaras, The Role of the Law in Critical Theory, Praxis 13/13 (Dec. 2, 2018), https://blogs.law.columbia.edu/praxis1313/mikhail-xifaras-the-role-of-the-law-in-critical-theory-the-role-of-property-in-the-commons/. However, when infused with Fraser’s call to center pre-existing inequalities, as well as Camille Robcis’s imaginary of institutions inspired by psychotherapy practice, see Camille Robcis, Radical Psychiatry, Institutional Analysis, and the Commons, Praxis 13/13 (Dec. 4, 2018), https://blogs.law.columbia.edu/praxis1313/camille-robcis-radical-psychiatry-institutional-analysis-and-the-commons/, it may be possible to develop a “recursive” logic for physical infrastructure of communications.
 Benkler, supra note 6, at 30.
 Antoinette Scherz, The Legitimacy of the Demos: Who Should Be Included in the Demos and on What Grounds?, Living Reviews in Democracy (2013), https://www.ethz.ch/content/dam/ethz/special-interest/gess/cis/cis-dam/CIS_DAM_2015/WorkingPapers/Living_Reviews_Democracy/Scherz.pdf.