Wednesday, November 17, 2004

A few thoughts about freedom of speech in 2020 -- post by Jack Balkin

This is a large subject, but here are a few of my initial thoughts.

To understand some of the most important free speech issues of 2020, we must begin by noting that wealth in the American economy will increasingly be devoted to knowledge production. Ownership of information distribution networks and intellectual property will increasingly be major determinants of who has power and money in American society and who does not.

By 2020 the ideological drift of the First Amendment will have proceeded apace, and the First Amendment will have emerged as a major anti-regulatory device, just as freedom of contact did in the gilded age. We have already seen intellectual property emerge as the other major set of rights defended by (and expanded on behalf of) business. However, freedom of speech and intellectual property are in tension with each other, so that new legal theories will emerge harmonizing them in ways that will serve the interests of business enterprises. Some business enterprises will focus more heavily on the defense of information distribution networks (cable, satellite, broadcast, Internet) from regulation, while others will push harder for legal protection of intellectual property rights (as well as anticircumvention rights and technological design mandates such as we find in the Digital Millenium Copyright Act and the FCC’s digital broadcast flag policy). Still other business interests will use the First Amendment to defend the accumulation and sale of personal data, arguing that privacy protections violate the First Amendment’s right to collect and distribute information.

This is not a normative claim; it is a positive prediction about how law will be harnessed to serve the interests of economic power. Whenever a new source of wealth emerges in American history, the Constitution will be employed to protect that wealth regardless of the public interest.

If this prediction is correct, what should the progressive response be? It seems to me that progressives must defend the underlying values of freedom of speech regardless of what the actual doctrines of the first amendment and intellectual property turn out to be in 2020. Those values will only partially overlap with the interests of businesses who make their profits from ownership of distribution networks and the delivery of intellectual property; indeed, in many respects they will run counter to those interests. Moreover, because free speech values and intellectual property are partially in conflict (as well as partially mutually supporting) progressives will also have to make their own way of making them live together and work together.

Again, the key point is to think in terms of free speech values, not in terms of existing doctrinal categories. Those doctrinal categories are always “fighting the last war,” that is, they are always attempting to secure paradigmatic claims from previous struggles about civil liberties, as well as reflecting the compromises and defeats that emerged from those struggles.

In the future, we should focus on several key themes:

(1) Developing and protecting the infrastructure of free expression. Freedom of speech is a product of culture, institutions, and legislative and administrative regulation as well as a product of judicial protections of negative rights. A culture of free expression requires institutions like schools and libraries that promote the dissemination of knowledge and a public sphere where discussion can occur. The infrastructure of free expression has always been partly in private and partly in public hands; in the future it is likely to be increasingly privatized. As a result, progressives should push for regulations and programs that promote education and the free distribution of knowledge and opinion.

(2) Promoting a democratic culture. To a large degree, the progressive agenda in the First Amendment was shaped by the presence of television, a unidirectional form of mass communication that is owned by a relatively small number of persons and that lacks interactivity. The public sphere of 2020 will increasingly be shaped by new media which are interactive, bidirectional, and in which huge numbers of people can participate. The goal of progressives must be to promote a democratic culture, a culture in which individuals have a fair chance to shape the forms of culture that in turn constitute them as individuals.

(3) The role of institutions. In the areas I’m discussing in this posting, free speech values will mostly be secured through the design of institutions, through legislative and administrative regulation, and through the design of technology. As a result, courts will have only a limited role in securing free speech values for new media in the next several decades. This does not mean that the Constitution and constitutional norms are not involved; it simply means that people will have to make constitutional arguments about how to protect the values of freedom of speech in the context of other institutions.

Intellectual property is a good example. It’s very difficult to create a set of judicial doctrines (like those in New York Times v. Sullivan, for example) that will adequately protect free speech interests as intellectual property law continues to metastasize. Courts can do something here, but only so much. For example, they cannot create elaborate licensing schemes for all relevant stakeholders by judicial decree, nor can they order that technologies be designed in one way rather than another; that is especially so because technological innovation proceeds regardless of what courts might want to do in the short run.

This means that much of the heavy lifting for the protection of free speech values will have to be done by technologists, legislatures, and administrative agencies. Through technological design and administrative regulation, we must continually push for rules that protect the values of interactivity and of a free and democratic culture. In technology, this means coming up with ever new ways of harnessing individual participation and communal effort. In regulation, it means not allowing large entrepreneurs either to monopolize or block participatory and communal technologies for mass communication.

To some extent, progressives will likely be outgunned by the superior lobbying efforts of business, both at the national and international levels. That does not counsel despair. Rather, it means that progressives must find alliances with a variety of different interests in the business community to help us fight our battles over technological design and regulation. No one should for a moment believe that because the issues are technical and regulatory they do not involve constitutional values. The Constitution lives (or dies) inside the technological and regulatory designs of new media of mass communication.

(4) Educational rights. In Rodriguez, the Supreme Court considered and rejected the idea that the First Amendment was the source of any important rights to educational opportunity. Many things about Rodriguez were misguided, and this was one of them. Freedom of speech means little if people do not have the opportunity to develop their minds. Freedom of speech does not begin when people open their mouths; it presupposes that people have a fair chance to obtain the knowledge and skills that enable them to participate in a democratic society. That is what a democratic culture means.

(5)Government accountability and transparency of power. The Bush Administration has demonstrated that if a government wishes to shield increasing amounts of information from the public, it can do so. In the 1970's the Supreme Court refused to extend the free speech principle to rights to know what government officials were doing. (The major exception is access to (some) judicial proceedings.). Possibly judges cannot fashion administrable rules in this area. Even if that is so, that does not mean that free speech value are not implicated. To the contrary, the more we learn about the current administration’s methods, the more we are reminded that lack of government accountability usually leads to abuses of power.

-- Jack Balkin

(cross-posted at Balkinization.)