Jack Balkin —
We are now well into America’s Second Gilded Age. The First Gilded Age was the era of industrial capitalism that begins in the 1870s and 1880s and continued through the first years of the 20th century, ultimately giving way to the reforms of the Progressive Era. The First Gilded Age produced huge fortunes, political corruption and vast inequalities of wealth, so much so that people became concerned that they would endanger American democracy.
The Second Gilded Age begins, more or less, with the beginning of the digital revolution in the mid-1980s, but it really takes off in the early years of the Internet Age in the mid to late 1990s, and it continues to the present day characterized by the rise of social media, and the development and implementation of algorithms, artificial intelligence, and robotics. For this reason I call our present era the Algorithmic Society.
If the First Gilded Age is the age of industrial capitalism, the Second Gilded Age is the age of digital or informational capitalism. It too has produced great fortunes and led to concerns that increasing concentrations of wealth and economic inequality are endangering American democracy. Like the First Gilded Age, it is also a time of deep political corruption and despair about the future of American democracy. It has not yet produced a second Progressive Era, yet every day I see signs that this is where we are headed.
There is a large literature criticizing the judicial doctrines of the First Amendment, and how they are slanted toward the interests of corporations (and capital generally) in the Second Gilded Age. The most obvious examples are the federal courts’ recent decisions on commercial speech and campaign finance regulation. These are interesting and important topics, but they are not the subject of this blog post.
My focus here is on the political economy of free speech in the digital age. The basic question is this: How does our political and economic system pay for a digital public sphere? It pays for it largely through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unbounded freedom to speak in exchange for the right to surveil, govern, and manipulate end-users.