Marketplace of Ideas, Privacy, and Digital Audiences

Alexander Tsesis


Marketplace of Ideas, Privacy, and Digital Audiences


The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances, and strangers. While this data enriches the lives of those who share content on the internet, it comes at the expense of privacy.

Social media companies disseminate news, advertisements, political messages, while also capitalizing on consumers’ private shopping, surfing, and travel habits. Companies like Cambridge Analytica, Amazon, and Apple rely on algorithmic programs to mash-up and scrape enormous amounts of online and otherwise available personal data to micro-target audiences. By collecting and then processing psychometric data sets, commercial and political advertisers rely on emotive advertisements to manipulate biases and vulnerabilities that impact audiences’ shopping and voting habits.

The Free Speech Clause is not an absolute bar to the regulation of commercial intermediaries who exploit private information obtained on the digital marketplace of ideas. The Commerce Clause authorizes passage of law to regulate internet companies that monetize intimate data and resell it to third parties. Rather than applying strict scrutiny to such proposed regulations as one would to pure speech, judges should rely on intermediate scrutiny to test statutes limiting the commercial marketing of data.

Legislative reforms are needed to address the substantial economic effects of massive, commercial agglomeration of data files containing histories, daily routines, medical conditions, personal habits, and the like. To address this logarithmically expanding cyber phenomenon, Congress should temporally restrict the retention and trade in private data. Internet intermediaries should not be immune from such a restriction on private data storage. For such a policy to be effective, safe harbor provisions shielding internet intermediaries should be modified to allow for civil litigation against internet companies that refuse a data subject’s request to remove personal information no longer needed to accomplish the transaction for which it was originally processed.

Texas Judge Convicted of Online Impersonation


Photo: Galveston County Jail (Houston Chronicle)

Texas Judge Convicted of Online Impersonation

Former Galveston County judge, Christopher Dupuy, was sentenced to six years in prison yesterday after being convicted of going online and impersonating two former girlfriends.  Dupuy’s impersonations took the form of bogus sex-for-hire ads and included language like “very fetish friendly.” Ex-judge who posed as ‘Don Tequila’ sentenced to 6 years in online revenge case

When Policing Social Media Becomes a ‘Hassell’: Hassell v. Bird Case Note


Sara Gold

When Policing Social Media Becomes a ‘Hassell’: Hassell v. Bird Case Note


Yelp got caught in the middle of a years-long legal dispute when a dissatisfied former client of a California law firm left angry reviews on the firm’s Yelp page. The law firm sued the woman for defamation and won via default judgment when she didn’t show up to court. When the woman was non-responsive to a court order to take down the posts, the superior court tried to order Yelp to do it for her.

Yelp refused to remove the content and cited Communications Decency Act section 230, the federal statute that generally shields social media sites from “liability” for user-uploaded content. But does simply asking Yelp to take down content constitute the type of “liability” that CDA 230 is meant to prevent? The ensuing litigation and appeals from 2013-2018 tested the contours of CDA 230, culminating in a split 4-3 decision by the California Supreme Court.

This Case Note overviews the lawsuit as it progressed through the state courts, starting at the superior court and ending (at least for now) at the California Supreme Court. All along, the justices weighed the competing interests of removing truly harmful content and protecting the public’s general freedom from censorship. Then, this Note evaluates these concepts as applied to this case and future cases.

Facebook and Political Speech


Facebook and Political Speech

The NY Times has a great story on how Facebook moderates political speech for its 2 billion plus users.

Every other Tuesday morning, several dozen Facebook employees gather over breakfast to come up with the rules, hashing out what the site’s two billion users should be allowed to say. The guidelines that emerge from these meetings are sent out to 7,500-plus moderators around the world…to continue reading go here.

Social Media Strategies for Law Students

law to fact

Social Media Strategies for Law Students

Recently, I went on Professor Leslie Garfield Tenzer’s podcast, Law to Fact, to discuss how law students can effectively use social media.  Below is a brief write-up of what I discussed.

In this episode, Professor Thaddeus Hoffmeister, Professor of Law at the University of Dayton School of Law and noted television and radio commentator, explains how a well tailored social media presence can enhance your career search.  Professor Hoffmeister discusses the various social media platforms, and provides shares methods you can employ to increase your post-law school employment opportunities!

Warren Court and First Amendment Easements to Private Property

Professor Ronald Krotoszynski


Warren Court and First Amendment Easements to Private Property


In order to facilitate the process of democratic deliberation, the Warren Court deployed the First Amendment to create an easement for would-be speakers who wished to use privately owned shopping centers and malls for protest activity. Logan Valley was part of a larger, broader effort to use the First Amendment to create positive rights of access to public spaces essential for the exercise of expressive freedoms. This chapter, which comprises part of larger book-length project (The Disappearing First Amendment (forthcoming Cambridge University Press 2019)), argues that Logan Valley’s real significance was not so much requiring access to “shopping malls” as such, for speech activity, but rather was addressing in a meaningful way the serious risks that privatization of the political marketplace of ideas presents to the process of democratic deliberation. Today, we face a very similar problem associated with private ownership of collective virtual spaces for deliberative democratic discourse. The chapter argues that a similar, First Amendment-based solution is needed to address this growing problem.

To be sure, the primary problem today no longer relates to shopping centers. Instead, the problem arises from the unfettered censorial powers currently enjoyed by dominant social media platforms, such as Facebook, Twitter, YouTube, and Instagram, as well as to dominant search engine providers, such as Google and Bing. Dominant social media platforms constitute critical modalities for contemporary democratic discourse and dominant search engine providers control the means that citizens use to access content on the web. Continued reliance on self-regulation by these entities is both unwise and ineffective. Instead, as in Logan Valley, the judicial creation of free speech easements to privately owned property to safeguard the process of democratic deliberation would provide a sound, and perfectly constitutional, solution that ensures meaningful access for all would-be speakers.

Just as the political parties were required to observe certain constitutional rules, because of their stranglehold on the electoral process, so too, these private entities should be required to honor certain constitutional guarantees because they voluntarily play an integral role in the electoral process. Moreover, we need not embrace an “all or nothing” approach to imposing First Amendment easements on to private property (whether real or virtual). Instead, we could imagine a virtuous mean between the two extremes of unfettered deference to the managerial preferences of profit-seeking private property owners and the unthinking application of constitutional values, across the board, to entities that perform a function integral to the process of democratic self-government. Logan Valley itself imposed only limited First Amendment obligations on private shopping mall owners. Adopting a similar approach to ensuring access to dominant social media platforms and search engine providers would arrest the gravest dangers associated with unlimited private censorial powers over dominant social media platforms and search engine providers.

YouTube and Impersonation


YouTube and Impersonation

This article on ArsTechnica describes the challenges of getting a fake YouTube account shut down.  Apparently, public shaming helps expedite the process. YouTube tells impersonation victim: No, you’re not being impersonated

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