Free Speech and the Digital Age

Section 1, Spring 22

Schedule Information

Enrollment: 0/16
Credits: 3
Day Time Room Start Date End Date
  • M
  • 1540-1740
  • WB121
01/24/2022 04/25/2022

Course Description

Never has it been easier for the powerful to privilege certain individuals or specific information over others. Companies, including social media giants like Facebook, Snapchat, and Twitter, have the power to filter, block, and deprioritize “fake news,” deep fake videos, hate speech, threats, spam, and other types of online activity. They can deactivate or shadow ban accounts, leaving the banned none the wiser. In the face of pressure from European governments and the EU Commission, content platforms are changing their terms of service agreements to ban certain forms of hate speech and extremist speech and doing so in a way that result in censorship creep at a global scale. How should companies address conflicting interests when activity implicating free expression is on the line? Content platforms are global, and thus the challenges to free expression and other interests are global. In our digital age, private companies have enormous power over our expressive opportunities. That power stems in part from control over our personal data. Tech companies amass massive amounts of information about each and every one of us. That data is often used to manipulate our thoughts, beliefs, and expressive opportunities. Even if the massive reservoirs of personal data are not exploited in troubling ways, companies often fail to secure or design them in ways that do not serve our best interests as citizens. In the past, debates about free expression largely (but not exclusively) focused on concerns about governmental censorship and surveillance. And not just because the First Amendment only applies to state action: power over free expression largely resided in the hands of the state. Free speech doctrine and debates also included the expressive implications of broadcasters and cable companies, to be sure, yet the citizen-government relationship captured much of the discussion. Today, private actors wield enormous power over free expression, power that is arguably as total or comprehensive as that of governments. Online intermediaries are aptly described as the “speech police” or the new “speech governors.” In the past, emerging technologies revolutionized discourse—from the printing press and mail to the telegraph, telephone, and television. Law and norms adapted to meet new challenges for free expression. Now, as then, emerging technologies have changed the expressive landscape. Digital technologies arguably have a more expansive reach and control over the data and expression than their predecessors. This seminar will explore questions related to the technological systemization of the powerful granting privilege to itself, with a focus on free expression. How has the shift in power to tech companies impacted expressive opportunities? Is the shift empowering or imperiling digital expression? Rebecca MacKinnon and Safiya Umoja Noble explores these questions and more. What about the people doing the moderating? Sarah Roberts teaches us much on this front. What is actually going on in these private companies? David Kayes help us navigate the mess. How are cyber mobs and cyber stalkers wielding their power to silence the marginalized? Carrie Goldberg and I explore cyber stalking and cyber harassment. Mary Anne Franks will talk to us about free speech fundamentalism and its impact on meaningful equality. How can we devise a fuller, fairer, and freer expressive environment for all concerned, as David Pozen asks? How has law and society responded to the changes in our communications infrastructure? Should there be new ground rules for expression that reinforce equality and fight subordination, as Genevieve Lakier suggests? Is Section 230 and internet exceptionalism still working and justified? Jeff Kosseff walks us through the history of Section 230 and the debates at hand. Should the state be required to take affirmative steps to secure expressive and informational interests of Americans? Should the First Amendment expand or contract to best protect expressive interests? These are some of the questions we will explore.

Course Requirements

Exam Info:
Midterm Type (if any): None
Description: None

Final Type (if any): None
Description: None

Written Work Product
Written Work Product: Students will write a substantial research paper due via EXPO by noon on the last day of the exam period. The topic is of your choosing, of course, and I can help you identify a topic. The course grade will be a combination of class participation (30%) and the paper (70%).

Other Work
We will be reading approximately a book a week and also perhaps an article. The course is designed to credit you for your efforts—30 percent of your grade will stem from your participation. The key is the quality of your participation, not just participation for participation’s sake.

Other Course Details
Prerequisites: It is helpful for students to have taken a First Amendment course, but it is not required. Concurrencies: None
Mutually Exclusive With: None
Laptops Allowed: No
First Day Attendance Required: No
Course Resources: To be announced.
Course Notes:

Graduation Requirements

*Satisfies Writing Requirement: Yes
**Credits For Prof. Skills Requirement: No
Satisfies Professional Ethics: No

*If “Yes,” then students are required to submit a substantial research paper in this course, which means students do not need to submit any form to SRO for this paper to meet their upper-level writing requirement. If “No,” then students must submit a “special request” e-form to SRO (available via LawWeb) no later than five weeks after the start of the term for a paper in this class to be counted toward the upper-level writing requirement.

**Yes indicates course credits count towards UVA Law’s Prof. Skills graduation requirement, not necessarily a skills requirements for any particular state bar.

Schedule No.
Law No.
Modified Type
Cross Listed: No
Cross-Listed Course Mnemonic:
Public Syllabus Link: None
Evaluation Portal Via LawWeb Opens: Friday, April 22, 12:01 AM
Evaluation Portal Via LawWeb Closes: Sunday, May 01, 11:59 PM