an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[On March 23, 2011, I delivered the 20th annual Hugo L. Black lecture on freedom of expression at Wesleyan University. I'll be publishing the prepared text of the lecture in installments this week on Balkinization.]
The 20th Annual Hugo L. Black Lecture on Freedom of Expression
March 23, 2011
I. Information Policy and Infrastructure
Inscribed on the main post office in New York City there is a famous motto: "Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds." It’s become the unofficial slogan of the United States Post Office. But the Post Office didn’t invent this famous saying. It’s from the Greek Historian Herodotus. He was describing an elaborate system of horseback messengers created by the Persian monarchs to keep in touch with the reaches of their vast empire. Herodotus reports that the great Persian King Xerxes used the couriers to report back to the capital that he had lost a major battle.
Xerxes’ system of couriers was an early form of what we might call a knowledge and information policy. Persian Kings needed a reliable system for sending information securely across vast distances. So they created an ancient version of the Internet for their personal use. All states throughout history have had knowledge and information policies. The earliest goals of these policies were to maintain state power, to execute military campaigns, to engage in surveillance and espionage, and to promote national security. Every nation-state in the world today, whether democratic or authoritarian, has knowledge and information policies, even though the technologies have changed greatly from King Xerxes’ day.
Most governments in the history of the world, like Xerxes’ Persia, have been autocratic. Control over information, technologies of communication, even the education of the public, have been designed to serve the interests of the ruling classes.
The emergence of democracies changed the purpose of knowledge and information policy. In a democracy, sovereignty rests in the people. But if the people are the rulers, they need information in order to hold their representatives accountable. The public needs access to information about public issues, and about what government officials are doing in their name; it needs relatively inexpensive ways to communicate with other citizens, organize, discuss, protest and form public opinion. In a democracy, political legitimacy necessarily depends on the free flow of information, and on the maintenance of a robust public sphere of discussion and opinion. In fact, the first democracy in Ancient Athens also pioneered techniques for spreading information among its citizens.
The framers of the U.S. Constitution were men of the Enlightenment. They assumed that representative government required people to be able to debate public issues; they believed that the growth and spread of science, art, and learning would benefit society and increase practical freedom. They understood that democratic self-government depends on a democratic knowledge and information policy.
Even before the First Amendment and the Bill of Rights were added in 1791, these Enlightenment ideas influenced the design of the 1787 Constitution. Article I, section 8, gives Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The progress clause was designed to decentralize and democratize innovation and information production. Instead on relying on royal patronage to generate art and science, or tie up innovation through royal favoritism and crown monopolies, Congress wanted to use markets to create incentives for intellectual production and diffusion of knowledge. For the founders, the purpose of intellectual property was to serve democratic values and generate a truly democratic culture.
The 1787 Constitution also gives Congress the power “[t]o establish post-offices and post-roads;” A democracy, especially one extending over such a large area, needed people to stay in touch with each other, not just government officials. Good roads and a good mail system were essential to self-government in a large republic.
Two of the most important early decisions by the new national government were knowledge and information policies. Professor Anuj Desai of the University of Wisconsin has written about their history. At the time of the founding, newspapers were mostly delivered by mail to different parts of the country. Congress created a special postal rate for newspapers to encourage the spread of news and opinion, educate the public, and promote communication of ideas and political cohesion throughout the republic. Congress imposed higher rates on business and personal correspondence to subsidize lower rates for newspaper delivery. A version of this cross-subsidy exists today, although it has largely outlived its usefulness because people don’t get their newspapers by mail anymore.
The second major decision, also ratified in the 1792 Postal Act, was data security; when mail was delivered by the U.S. postal service, government officials could not look inside people’s mail without a warrant. Although the official English practice was that postal officers would not read private correspondence, it was not always followed, and during the Revolution people feared that insecure mail would lead to discovery that they were disloyal to the British crown. European absolute monarchs probably felt even less compunction than British civil servants about opening and reading the correspondence of their subjects. By protecting informational privacy, this early policy also protected conscience and free expression. This principle isn’t recognized as a constitutional guarantee until many years later. It starts, however, as an information policy of the early American Republic that, together with postal subsidies and post roads, creates the beginnings of what I will call an infrastructure of free expression.
II. Democratic versus Authoritarian Information Policies
It’s not an exaggeration to say that modern states are informational states; states that recognize and solve problems of governance by collecting, analyzing and distributing information. Knowledge and information policy is at the heart of government today.
Knowledge and information policy is about far more than the protection of free expression. Modern governments provide social services and benefits to their citizens, like social security, Medicare, and veterans’ pensions. This requires vast data processing systems to compile statistics and distribute benefits. Modern citizenship requires data processing in order to distribute the benefits of citizenship, and this leads to the creation of vast government databases, which in turn, creates the need for privacy regulation, another important information policy. Governments also invest heavily in public education because it is crucial to democratic citizenship. Governments subsidize the production of information, like agricultural and weather information, as well as geographical data. And, especially in the United States, governments subsidize most basic scientific research.
You might think that information states must tend toward democracy. But it isn’t so. East Germany had an enormous information collection apparatus—the Stasi—but it certainly wasn’t democratic. Today China’s knowledge and information policies are designed to keep the Chinese Communist Party in power while growing China’s economy.
The big choice we face today is between democratic information states and authoritarian information states. Different countries lie on a spectrum between these two ideal types.
Authoritarian information states are information gluttons, information misers and information monopolists. They try to collect as much information as they can, but they don’t share it with their people. They try to monopolize control over information in order to serve the interests of those in power.
Democratic information states, by contrast, are information gourmets, information philanthropists and information decentralizers. They collect only the information they need for governance; and they do not keep information secret any longer than necessary. They not only willingly share information with their citizens, they also create information and knowledge for their citizens to use and enjoy. Democratic information states try to ensure that their citizens have ample opportunities for education; they promote access to knowledge and information in order to form public opinion and to keep government officials in check. Democratic information states also decentralize the production of knowledge and information because this promotes democratic self-government.
Many people are optimistic that the Internet and the digital age will make authoritarian government increasingly difficult if not impossible. I am not so sure. In fact, as I’ll describe shortly, it’s possible for authoritarian states to use the Internet and digital technologies to create digital versions of authoritarian information states. More troublingly, it’s also possible that the Internet will tempt democracies like the United States to adopt increasingly authoritarian knowledge and information policies out of fear of terrorism and in order to protect interests in intellectual property.
Justice Hugo Black, after whom this lecture series is named, gave a pretty good account of a knowledge and information policy for a democracy. In a 1941 case called Associated Press v. United States, he argued that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, [and] that a free press is a condition of a free society.” “Diverse” means that we should decentralize information production and information distribution. No one entity should control knowledge production, many people must participate in creating information and it should be widely distributed. “Antagonistic” means that knowledge production should be structured to allow the clash of different viewpoints, and to encourage dissent and innovation. Therefore governments should protect and foster institutions, like the press, universities and scientific research, that can check facts, produce new forms of knowledge, and help guarantee the quality and salience of information.
Associated Press involved an agreement by newspapers to limit access to information to their members and create barriers to entry by other news organizations. The members of the Associated Press argued that, that as members of the media, they had a First Amendment right to do so.
Justice Black disagreed. The Associated Press was using its monopoly power to stifle competition in the gathering and dissemination of news. Justice Black argued that the same values that prevented the government from restricting the flow of information also gave it the right to regulate powerful private interests when they interfered with “the widest possible dissemination of information from diverse and antagonistic sources.” As Justice Black put it, “[i]t would be strange indeed . . . if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. . . . Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guarantied by the Constitution, but freedom to combine to keep others from publishing is not.”
Today we live in a world of large and powerful corporations that shape and control the production and flow of knowledge. Many of these players now use the First Amendment to challenge any regulation of their business models and to limit competition in the marketplace of ideas. Justice Black’s opinion in Associated Press reminds us that the First Amendment protects speech, not incumbent business models. Government regulation that decentralizes control over innovation and knowledge production does not necessarily violate the First Amendment and may even be required to promote its central values. As Justice Black put it: “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”
III. Two Big Ideas
There are two big ideas that I want you to take away from this lecture. The first is to think in terms of knowledge and information policy. Think about our valued individual liberties of freedom of speech, press and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.
We usually talk about the First Amendment not as a policy but as an individual right. But I also want you to see it as an integral part of knowledge and information policy. Why? Because many parts of information policy can’t easily be cashed out in terms of individual rights. You don’t have an individual right to have the government create public libraries. The Constitution didn’t require the early Congress to subsidize newspaper delivery. You don’t have an individual right to government decisions about how much to invest in science in fiscal year 2011. You don’t have an individual right to have to have fiber optic cable brought to your neighborhood, or to have particular frequencies of the electromagnetic spectrum sold at auction, handed out in the form of licenses, or made into a commons for spread spectrum technologies. These are policy choices. They are decisions about institutions and technological design. And they are crucial to your practical ability to speak in a digital world.
The second big idea is that individual freedoms of speech, press and assembly require an infrastructure of free expression. That infrastructure includes technologies of communication, policies that promote innovation and diffusion of knowledge, the institutions of civil society that create knowledge and help ensure its quality, and government and private investments in science, education, and communications technology.
I began this lecture with the example of an infrastructure built by a Persian monarch. These days, however, the infrastructure of free expression is not primarily controlled by kings and dictators. Increasingly it is in the hands of powerful private corporations like Facebook, Google, Yahoo, Verizon, Comcast and Cisco; they create and maintain the architectures, networks and platforms through which everyone else communicates.
In fact, governments often work in cooperation with the companies that control digital content and digital telecommunications networks. Knowledge and information policy—and power over knowledge and information—is increasingly the product of coordination between state power and private power.
How are these two ideas—information policy and infrastructure—related? Think about the title of this Lecture: The First Amendment is an Information Policy. What I mean is this: The First Amendment is a crucial information policy in a democracy, but it is also only one information policy among many others. Constitutional guarantees of free expression are a necessary part of knowledge and information policy for a democratic information state, but they are not sufficient. To understand free expression in the digital age, we must grasp this central truth. Good policy and good design promote democracy and a democratic culture; bad policy and bad design foster oligarchy, aristocracy, and even totalitarianism.
I want to offer two examples of how the infrastructure of free expression is crucial to democracy in the Internet age. Both of them take place outside of the United States. Both of them show the powerful role of infrastructure in a networked world. And both of them serve as lessons for why we must keep our own infrastructure of expression free and open in this country.