Balkinization  

Monday, August 11, 2008

The Future of Free Expression, Part I

JB

In the Information Age, you would think, there would be no more important part of the Constitution than the First Amendment. After all, free speech guarantees should have a great deal to do with a knowledge economy, and a world in which wealth and power increasingly depend on information technology, intellectual property and control over information flows.

For some time now, I have been thinking about how our understandings of the First Amendment are likely to change in a digital age. Gradually, I have come to the conclusion that we face a transition of enormous irony. At the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the First Amendment seems increasingly irrelevant to the key free speech battles of the future. Or, more precisely, the judge made doctrines that I teach in my First Amendment classes seem increasingly irrelevant.

The key values that underlie the First amendment seem as important as ever: the protection of individual freedom to express ideas, form opinions, create art and engage in research; the ability of individuals and groups share their views with others, and to build on the ideas of others; the promotion and dissemination of knowledge and opinion. All these values remain as important in a world of blogs, search engines, and social software as they did in an Enlightenment era dominated by printing presses, pamphlets, and town criers. What has changed, however, is the technological context in which we try to realize these values.

In that context, the most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. We probably could not have achieved the degree of freedom of speech we enjoy in this country without the judicial elaboration of constitutional values in the twentieth century. In the twenty-first, century, however, the future of the system of free expression will require other sources of assistance. And in the twenty-first century, the values of freedom of expression will become subsumed in an even larger set of concerns that I call knowledge and information policy. More about this in my next post.

Comments:

Quick question:

1). Is censorship by non-gummint actors (perhaps large corporations with their own axes to grind) more of an issue with the new electronic media? If so, what role does the gummint have in remedying this, if any?

Cheers,
 

Second question:

The new electronic media offer much lower barriers to publication than ever before, and now everyone's an author or director.

But with this proliferation -- nay, explosion -- of content, the mundane, the banal, and the bad has a tendency to drown out the good.

Is the animating principle of the First Amendment more that everyone should get a chance to be heard (even if that chance is practically microscopic), ir is it that everyone should have a chance to be informed?

Cheers,
 

Arne stated:


"Is the animating principle of the First Amendment more that everyone should get a chance to be heard (even if that chance is practically microscopic), ir is it that everyone should have a chance to be informed?"

Who decides what informed means? This sounds dangerous to liberty to me. I would have to think that it means that everyone has the chance to be heard. That is the only way for true dialouge in a modern world. There are still many voices that are not heard in this world. Thus, injustice still reigns in these parts.
 

Thoughts From The King:

[Interesting nom de plume for such a comment]

Who decides what informed means? This sounds dangerous to liberty to me....

I agree that it has the potential to be abused, but surely you have to admit that there is such a thing as "uninformed" and that such can be a problem. The question is what solution, if any, we ought to strive for.

... I would have to think that it means that everyone has the chance to be heard. That is the only way for true dialouge in a modern world. There are still many voices that are not heard in this world. Thus, injustice still reigns in these parts.

That may be, and port of the problem us trying to rise above the noise. Notice that bloggers didn't manage to stop the U.S. invasion of Iraq, or correct the massive disinformation campaign.

Cheers,
 

Is copyright the elephant in the room that might obstruct the future of free expression?
 

arne writes:
Is the animating principle of the First Amendment more that everyone should get a chance to be heard (even if that chance is practically microscopic), ir is it that everyone should have a chance to be informed?


It seems to me as though this is asking if the first amendment is about creating a right, or creating a marketplace for ideas (well not creating it as such, but establishing a framework for that marketplace to happen). I would think the first amendment is about creating a right, and letting the marketplace create itself. After all, you can lead a horse to water, but you can't make it think.

Either way, the Internet could have a negative effect on both. For the individual wishing to be heard, one voice drowns in a sea of youtube-esque rantings making distinction difficult by virtue of the sheer size of the Internet; for the individual wishing to be informed, one ear is firehosed with a deluge of information, making discrimination difficult by virtue of sheer volume.

In the case of the speaker, perhaps it heightens the need to more creativity, for the listener the need for independent thought.

In any case, search engines may hold more sway than is within the comfort zone of most; a diversity of them may be an important thought with respect to the path of free expression.
 

Is the animating principle of the First Amendment more that everyone should get a chance to be heard (even if that chance is practically microscopic), ir is it that everyone should have a chance to be informed?

The distinction here seems to be between the right to speak and the right of free assembly. At any rate, I've never heard of a law meant to address complaints that Speaker's Corner was too crowded.
 

"The right to be informed"
Not quite: the right to inform oneself.
If you consider them is referring to the same principle, freedom of inquiry is a more powerful model for the defense of that principle than freedom of speech.

The right to listen in a crowded theater.
 

Arbitrary censorship of visitors' comments on websites (blogs and other websites, particularly Wikipedia) is a big and largely unrecognized problem. One reason why it is a big problem is that these arbitrarily censoring websites are being authoritatively cited by court opinions, scholarly journal articles, the established news media, etc., and this arbitrary censorship of visitors' comments prevents these websites from being self-correcting on the facts and prevents them from presenting a variety of views.

There is no excuse for arbitrary censorship of comments on blogs. Comment space on blogs is usually free and virtually unlimited, so there is no need to pick and choose which on-topic, serious, and polite comments to post.
 

I guess I would argue that the right is still to speak. The right to be informed is part of the right to vote. As the inscription on the Boston Public Library reads, "The Commonwealth Requires The Education of the People as the Safeguard of Order and Liberty."

I would also argue that the world has become complex enough through the augmented flow of information that it is getting to that time when we should finally decide the free rider problem with respect to being informed citizens. There is no genuine right to be ignorant in a democracy, and it is becoming more obvious as time goes on what the effects are of pretending there is.
 

eric:

At any rate, I've never heard of a law meant to address complaints that Speaker's Corner was too crowded.

TPM restrictions. You need permits to hold rallys on the National Mall, for instance....

Cheers,
 

Fortunately, we have the right not to listen when someone exercises his/her right to speak.
 

Shag from Brookline said...
>>>>> Fortunately, we have the right not to listen when someone exercises his/her right to speak.<<<<<<

Not always. When someone is denied the right to speak (as in the arbitrary censorship of a visitor's comment on a blog), others are denied the right to choose not to listen -- that choice is made for them.

Touche`.

"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger
 

Freedom of Speech is definitely going to need more help with the digital age, but fortunately our Constitution has been able to keep up with the times and protect the Bill of Rights so far. However I think that it will be the new business models that really make the impact on how the public perceives the First Amendment in the future, and the public will effect how the government and other agencies deal with it.
 

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