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Dissertation Formatted.Pages UNIVERSITY OF CALIFORNIA, SAN DIEGO Right to Be Forgotten or Right to Not Be Talked About? Public and Private Speech Regulation and the Panic About Critical Speech on the Interactive Web A dissertation submitted in partial satisfaction of the requirements for the degree Doctor of Philosophy in Communication by Benjamin A. Medeiros Committee in Charge: Professor Robert Horwitz, Chair Professor Kelly Gates Professor John McMurria Professor Kwai Ng Professor Natalia Roudakova Professor David Serlin 2016 The Dissertation of Benjamin A. Medeiros is approved, and it is acceptable in quality and form for publication on microfilm and electronically: Chair University of California, San Diego 2016 !iii TABLE OF CONTENTS Signature Page .……………………………………………………………… iii Table of Contents ……………………………………………………………. iv Vita ………………………………………………………………………….. v Abstract of the Dissertation …………………………………………………. vi Introduction ………………………………………………………………….. 1 Chapter 1 Why and How Has US Law Typically Regulated Reputational Information? …………………………………………………………………. 18 Chapter 2 Perspectives On the Information Dynamics and Speech Affordances of the Web ……………………………………………………… 50 Chapter 3 Facilitating Rebuttal Or Peddling the Magic Wand? The Rise of Reputation Management and the Reputational Imperative …………………. 94 Chapter 4 Introduction to Reputation and Consumer Review Platforms: Yelp ……………………………………………………………… 133 Chapter 5 Reputation and Consumer Review Platforms Continued: “Gripe” Sites ………………………………………………………………………….. 182 Chapter 6 Reputational Conflicts Over Independent “Citizen Criticism” on the Web …………………………………………………………………… 242 Chapter 7 Convergence Journalism, Reputation, and the Search for the Boston Marathon Bombers…………………………………………………… 313 Conclusion An Exception That Proves the Rule…………………………….. 359 Bibliography …………………………………………………………………. 378 !iv VITA 2007 Bachelor of Arts, Franklin & Marshall College 2009 Master of Arts, New York University 2011-2015 Teaching Assistant, University of California, San Diego 2014-2016 Associate Instructor, University of California, San Diego 2016 Doctor of Philosophy, University of California, San Diego PUBLICATIONS ”Restoring Whiteness, Sanitizing Blackness, and Authenticating Modern Artifice: Pepsodent Toothpaste and the Visual Branding of Amos ‘n’ Andy.” Accepted pending revisions, Historical Journal of Film, Radio, and Television. PRESENTATIONS June 2014 Policy History Association, Columbus, OH. May 2015 Law and Society Association, Seattle, WA. July 2016 International Association of Media and Communication Research, Leicester, England. FIELDS OF STUDY Communications Law and Policy Digital Media Culture History of Media Industries !v ABSTRACT OF THE DISSERTATION Right to Be Forgotten or Right to Not Be Talked About? Public and Private Speech Regulation and the Panic About Critical Speech on the Interactive Web by Benjamin A. Medeiros Doctor of Philosophy University of California, San Diego, 2016 Robert B. Horwitz, Chair This dissertation analyzes the legal, social, and architectural dimensions of three sets of platform-specific reputational disputes in order to understand how people negotiate the reputational impact of personally critical speech. The cases involve individuals criticized on nominal “consumer review” websites, bloggers writing as “professional-amateur” journalists, and crowd-sourced criminal investigations on the social media platform Reddit. Techno-utopian optimism about the decline of traditional media gatekeepers has given way to widespread lament over the apparent vulnerability of our “online !vi reputations.” Such lament is steeped in a thoroughly neoliberal conception of increased personal responsibility to protect one’s reputation as an exchangeable asset. This perceived imperative has prompted several responses. Some call for the law to afford greater control over the speech of others. Such calls challenge the conventional wisdom in First Amendment theory that “counterspeech” is the preferred remedy for critical speech that is not false or egregiously invasive. Yet efforts to compel search engines to de-index links or impose greater liability on platform operators for third-party speech are largely legal and political dead ends in the U.S. More vexing are some emergent combinations of law and private action that have conflicting implications within theories of free speech and democracy. The search engine optimization tactics of the “reputation management” industry often obviate litigation through direct counterspeech. My case studies demonstrate that some of its efforts achieve the kind of non-judicial resolution of reputational disputes that legal reformers have sought for decades. On the other hand, reputation managers and their clients routinely use “reputational” concerns as a rhetorical pretext for silencing an expanded range of critical speech than is traditionally actionable. Reputation management thus simultaneously embodies a broader reactionary ethos regarding public discussion. This ethos is at odds with liberal speech norms that valorize the cacophony of competing views and the promotion of “republican virtue” when citizens collectively confront troubling ideas or sentiments. Ultimately, the paradox of reputation management demonstrates how the !vii neoliberal imperative to fashion oneself as a “brand” perhaps threatens robust public discussion as much as overly stringent libel and privacy laws would. !viii Introduction Right now, University of Connecticut student Luke Gatti is surely concerned with the criminal charge of disturbing the peace that he faces. The charge stems from an October 5, 2015 incident when Gatti drunkenly shoved a cafeteria manager who had refused him service and repeatedly barked his now infamous order of “some fucking bacon jalapeno mac and cheese.” But it is possible that he is even more concerned by the fact that a video of the encounter has gone viral online. The video has inspired myriad articles that have themselves attracted thousands of comments — most of which excoriate Gatti. Both journalists and users of social platforms like Reddit have connected the dots with past incidents involving similar conduct. As a result, Gatti’s social media pages were located within hours of the appearance of the video. In short, internet gawkers have been viewing a remarkably intimate and comprehensive portrait of Luke Gatti’s life — where he grew up, what he does for fun, who his friends are, and what he looks like when he behaves badly. If someone were to later look up information about him online, that person would find a less than flattering portrait. Gatti’s reputation — what others think about him, essentially — has likely taken a hit. Traditionally, American tort law provides civil remedies when speech is injurious to reputation if such speech is not otherwise valuable to the public. If someone publishes false factual assertions that make a person appear unscrupulous (and therefore unworthy of collaboration or friendship), for instance, the subject of the statements can sue for libel. Additionally, if someone publicizes information that is technically true but !1 !2 embarrassingly private and non-newsworthy, the subject of the statement can sue for one of the torts that covers invasion of privacy. In this way, the law recognizes that a reputation is a valuable but fragile social asset. It is easy to damage and hard to rebuild. One can spend years setting the record straight after one false statement or repairing one’s image after a supremely embarrassing disclosure. Further, defamation and invasion of privacy are doubly undesirable because they pollute public discourse with what the law deems “worthless” information. In the legal analysis, therefore, the speech interest in such utterances is easily outweighed by the social harm they cause. Those narrow categories of speech are thus not protected by the First Amendment. At first glance, Gatti’s case does not quite fit either defamation or invasion of privacy. Gatti was acting out in public and the video is not altered, making it nominally “true.” Further, there is clearly some public appetite to discuss him. The discussion over social media and in online publications ranged from a more prurient digital schadenfreude to measured debates about the nature of privilege and double standards in law enforcement. In First Amendment parlance, we would say that the discussion of the Gatti video therefore has value in the “marketplace of ideas” — the open forum for deliberation and exchange in which people decide which ideas to accept and which to reject. The presumption in First Amendment jurisprudence has been that non-tortious speech is worth protecting because it has some sort of redeeming social and informational value. Most fundamentally, it might express the speaker’s liberty in a way that contributes !3 to the development of his or her identity and beliefs. It might also enhance the marketplace of ideas by contributing to the “search for truth” and generating further exchange. Even intemperate or insulting speech is thought to have value: it expresses the passion of the speaker, and punishing speech on these grounds would inevitably involve suppressing strongly held political or social beliefs (for which the First Amendment otherwise reserves the most robust protection). Much personally critical speech that could adversely impact reputation is in fact protected. The defamation and invasion of privacy torts offer no relief from critical statements that are true or from critical or inflammatory opinions that
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