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The First Amendment in the Second Gilded Age - The 2018 Mitchell Lecture
Here is the video of my April 13, 2018 Mitchell Lecture at Buffalo Law School, entitled "The First Amendment in the Second Gilded Age."
This lecture describes the political economy of free expression in our Second Gilded Age. It explains how we pay for the public sphere in the digital age. I argue that the recent Facebook/Cambridge Analytica scandal typifies the central problem of securing freedom of expression in the Second Gilded Age.
First, the key players who set the basic rules of free expression are not nation states but powerful private actors like Facebook who effectively act as the governors of digital spaces.
Second, free speech is not really free at all. Freedom of speech depends on an infrastructure of free expression, and that infrastructure must be paid for in one way or another. In the early 21st century, people pay for free speech through a grand bargain only vaguely understood by most people: In return for the ability to speak to anyone at anytime, people agree to increasingly effective and powerful surveillance of their online lives. In short, in the Second Gilded Age, the infrastructure of digital free expression is also the infrastructure of digital surveillance. The two are one and the same.
Near the end of the lecture I discuss possible reforms, including my idea of treating some kinds of digital companies as information fiduciaries.