The Outset Amendment Inward The 2Nd Golden Age

I convey posted my latest essay, The First Amendment inwards the Second Gilded Age, on SSRN. It is based on the 2018 James McCormick Mitchell Lecture I gave at Buffalo Law School inwards Apr of 2018. 

Here is the abstract:

How practise nosotros pay for the digital world sphere? In the Second Gilded Age, the respond is primarily through digital surveillance too through finding e'er novel ways to brand coin out of personal data. Digital capitalism inwards the Second Gilded Age features an implicit bargain: a seemingly unlimited liberty to utter inwards central for the correct to surveil too manipulate destination users.

To protect liberty of vocalisation communication inwards the Second Gilded Age nosotros must distinguish the values of gratis vocalisation communication from the judicially created doctrines of the First Amendment. That is because the practical liberty to utter online depends on a privately owned too operated infrastructure of digital communication to which the First Amendment does non apply. As a result, the protection of digital gratis aspect has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, inwards the Second Gilded Age, the judicially created doctrines of First Amendment police pull kicking the bucket nearly of import equally potential obstacles to reform. They create constitutional difficulties for attempts to regulate individual infrastructure owners inwards lodge to protect gratis vocalisation communication values too personal privacy.

Protecting liberty of vocalisation communication inwards the Second Gilded Age requires us to focus on the political economic scheme of digital speech: how nosotros pay for the digital world sphere, the dangers the digital political economic scheme creates for destination users, too the kinds of reforms that would best protect their interests inwards vocalisation communication too privacy.

This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explicate how the weather condition that brand gratis vocalisation communication possible convey changed from the twentieth to the twenty-first centuries. That tilt is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies brand their coin too how they touching Earth sphere inwards the process. The scandal too highlights a cardinal work for liberty of vocalisation communication inwards the Second Gilded Age: Digital privacy undergirds our liberty of expression, simply the mode nosotros pay for liberty of aspect perpetually threatens our digital privacy too subjects us to dangers of manipulation too overreaching.

The groovy irony is that an era that promised unbounded opportunities for liberty of aspect is too an era of increasing digital command too surveillance. The same technological advances let both results. The essay concludes past times briefly introducing a reform proposal advocated inwards my previous work: that nosotros should consider digital media companies equally information fiduciaries who convey duties of care, confidentiality, too loyalty toward their destination users.