Towards the Institutions of Freedom: the European Public Discourse in the Digital Era

The digital revolution has transformed the dissemination of messages and the construction of public debate. This article examines the disintermediation and fragmentation of the public sphere by digital platforms. Disinformation campaigns, that aim at assuming the power of determining a truth alternative to reality, highlight the need to enhance the traditional view of freedom of expression as negative freedom with an institutional perspective. The paper argues that freedom of expression should be seen as an institution of freedom, an organizational space leading to a normative theory of public discourse. This theory legitimizes democratic systems and requires proactive regulation to enforce its values. Viewing freedom of expression as an institution changes the role of public power: this should not be limited to abstention but instead has a positive obligation to regulate the spaces where communicative interactions occur. The article discusses how this regulatory need led to the European adoption of the Digital Services Act (DSA) to correct DPs through procedural constraints. Despite some criticisms, the DSA establishes a foundation for a transnational European public discourse aligned with the Charter of Fundamental Rights and member states’ constitutional traditions.