Free Speech and the Internet
Technology does not change the concept of free speech; what it does change is the method of communication through which free speech is exercised and the experience that is identified with free speech for the duration of the time when a particular method of communication is dominant. Newspapers convey propositions that are either true or false, as those are (or are not) supported by evidence or, short of that, supported by emotion. The movies change the unit of communication from the proposition to the image and so made some people wonder whether people might be so smitten with images that they might no longer think clearly about politics or the rest of life, and are left open to totalitarian thinking.
The arrival of cable again changes the sense of free speech, making it no longer a matter of objectivity, as that is offered by broadcast network anchors who offer “hard headed reporting” and a balancing of views. The proposition, the image, and the objective report are replaced by the factoid: a unit of information which can support either propositions or images, or may stand in itself for an opinion, as when one says Arabs will own the ports, even if that is not the case, because the Port Authority will continue to own the ports in New York, and even if port security is more than a matter of who operates the ports, though it is unclear just how much a managing company can undermine port security. The sound bite is everything. We appreciate this new sense of free speech when we take our information about the world from opinion programs and late night comedians and even comedians who prance about as if they were news commentators. Bill Maher once said he knew he was a comedian, and so ranked just a bit above the strippers. But he doesn’t sound that way on his program. He sounds as if he thinks his quips are trenchant, when they are often only gross exaggerations of the facts, fit for a laugh, but not fit to pass as a judicious take on the events of the day. But exaggeration is now what passes, on the part of both Conservatives and Liberals, for the truth of the matter, and so trading in exaggerations is, for the moment, the substance of free speech. The network news programs, impacted by cable, have also abandoned all but the pretense to objectivity. The headline on NBC News, especially, is that the drug they praised as a breakthrough six months or a year before has turned out not to be what it was said to be.
Cable is a fee based as well as an advertising based medium because it is subject to individual subscription. I now pay to see baseball games I watched for free every afternoon when I was growing up in the Bronx. You sign up to subscribe to cable. Cable channels appeal to different and highly distinct demographics. The marketplace of ideas is restored, more information more easily accessed. The Internet also creates more information by making information easier to transmit. People write letters again (this time, called “e-mails”); anyone can become an investigative journalist about a Supreme Court nominee. One might suppose, therefore, that we are back in the pre-broadcast age of the media, cable and the Internet working like the telephone or like newspapers without deadlines. There are reasons, however, why the media situation is more complicated than that.
There is, first of all, a general principle of mass communication at work across the various technologies. The newest medium appeals at first to a boutique audience of the well informed because that audience is willing to pay a premium to get sophisticated information and opinion. The same thing happened in the Fifties when the small part of the population that had television was sophisticated enough, or upwardly striving enough, to get some meaning out of the teleplays on Playhouse 90 and the other quality programs shown during what was later dubbed the Golden Age of television. And so we are saved (for a little while) from the blandness of the “objective” unaddressed print and broadcast media, until, that is, subscription to cable and the Internet is so near universal that advertising becomes the main means of supporting the services and the bland and superficial again takes hold until the next wave of media technology arrives on the scene.
At the moment, every blogger can voice whatever outrageous opinion he or she has, whether or not it is supported by facts, an issue whose relevance is left to the consumer to decide, and broadcast media and politicians dip into only the most outrageous of those opinions to test the winds of public opinion. Factoids on the Internet provide, at the moment, only a veto over political initiatives: they can and do vet Supreme Court appointments and they can and do act as scandal-mongers, spreading swift boat gossip. So we are already into a two tiered system: the Internet as it communicates with itself, and the Internet as it impacts on the mainstream media that provide mass distribution (and supposedly vet) the outpourings of those who live off their outrage.
This situation, however, is not likely to last. Networks may pay for exclusive use of a blogger’s material, and so blogmeisters will become stringers for broadcasters, or some few blogsites may become so successful, each having a host of their own stringers, that they will become “reliable” semi-official spokespeople for a point of view, and so replace opinion magazines, which are themselves rapidly converting from print to on-line editions. The Internet changes fast. In the early days of not so long ago, the home pages of access providers listed the U. S. Census bureau as one of the sites people might want to have as an easy resource, and users got annoyed when they found a restaurant rather than an encyclopedia entry when they searched for “Manatee”.
The Mill model remains as pertinent as ever to the gonzo journalism of the Net because it provides a principle for the management of information so as to insure democratic discourse and democratic government, a principle very different than the “need to know” principle applied by the Bush Administration, which decided that the public did not need to know the real reasoning behind the decision to invade Iraq. John Stuart Mill’s idea of the free market in ideas is that the best response both practically and in principle to an “abuse” of free speech is more free speech. The answer to the Swift boaters (who used the Internet and not just television ads) was not to restrict what they said or call for the President to denounce what they said; it was to press an even more vigorous attack about the incompetence of the President and how the Swift boaters were deflecting from that issue. Kerry went into high dudgeon rather than attacking the enemy for having been reduced to these tactics, given the patent deficiencies of Bush’s policies. Inferior information dominates only when you do not put it in context and do not say what it says about those offering the inferior information. Free speech always reveals more about spokespeople than they want you to know.
The complexity of the new media suggests that a codicil concerning availability must be added to the Mill Doctrine. We can see this by considering how the Internet differs from historically prior media. We might think that the Internet is a sophisticated version of the mail or the telephone. We dial up a particular web site from our own web site and download information onto our address. There are records kept of what is sent and received that are easily accessible by experts, though it remains to be seen how effective a sort can be made of large numbers of those records. The question then becomes whether we are as entitled to as much privacy with regard to those records as we have with regard to mail where, as I understand it, a court order is required to even inspect the address and return address on unopened envelopes while they are passing through the control of a mail service such as the U. S. Postal System. So free speech is sensed, if we regard mail as an analogy to the Internet, as having to do with privacy. We can speak freely in our mail because others cannot look into its content.
The comparison to mail is inexact. A search engine is available to any number of addresses and the question is whether the government has the right to supervise the entire volume of mail going through the Internet whether or not it has the right to look into a particular missive. So Google, according to The New York Times, was unsuccessful in resisting the government’s desire to inspect its communications because the government was seeking only to determine the patterns of internet traffic having to do with child pornography rather than monitor individual communications.
Moreover, what is accessed through the Internet is not limited to what is composed, as are most letters, for the eyes of only one person. Something is uploaded onto a website precisely so that a number of strangers can also consult the political opinions or the self-revelations put on a web site. If you only want family members to see pictures of your dog, then attach it to an e-mail, not a web site. Anything put on a web site might turn up on the front page of The New York Times, should the Times take an interest (that is, putting aside copyright issues). The content of personal e-mails may have to be granted greater privacy when the addressee is known to the sender. There may well be a way to distinguish spam from private communications (the volume of the “mailing”?) and so it would be possible to provide more protection for the privacy of the equivalent of first class mail than for the equivalent of fourth class mail. Screens can be adopted to separate out those e-mails that may be problematic—threats of violence, of child exploitation, fraud and the like—and which are not permitted in snail mail either.
If the Internet is not mail, it is also not a broadcast, even though it might seem to be that because even a vulnerable teenager can easily make use of its services and, in that case, the Internet would have to be censored so as to protect the young. The Internet is not a broadcast because people see only what they have taken multiple steps to dial up, having had to search for it, and so some responsibility falls on the user, more so than with broadcast television where you are more at risk because you can come unawares onto something that is unappetizing, like Latoya Jackson’s breast. Something is wrong here, because cable allows you to hook up with something more unsettling than sex: plastic surgery on the twenty four hour health channels.
The best way to conceptualize the Internet and to understand the experience of free speech that it provides is to think of it as a library. It is a treasure trove of information accessed through a classification system that allows you to find the topic or specific author you are looking for. Your subscription cost is like a library card that provides you with borrower privileges, which means, in this case, that you cannot reproduce the materials for sale, even if you can download copies of some of the materials. Some special collections also require a special user’s fee. The Internet is therefore like Malraux’s idea of art available through books as well as museums. Information is available at home and not just at special geographic places that have to be visited in person. The user experiences the Internet as a dial up directory, everything there if you just know how to browse, just as frequenters of libraries experience the freedom of the library as the opportunity to peruse books that have call letters close to that of the book that was the object of a search. Privacy isn’t the issue; the issue is ease of access and the probability of fortuitous discoveries.
There are two problems that have to be solved if the Internet is a library. One problem is technical. What is the system of classification to be used so that a person is likely to find what they want or become aware of what they want from the untold number of web sites that are available? Google, at the moment, has a complicated formula whereby positions are assigned according to topic. This attempt at objectivity allows the user to get a good idea in fairly short order of what blogs or restaurants have made it to the top. Rating entries on the basis of fees would make entry into the ether more difficult but is not that much of a problem if a distinction is made between commercial and non-commercial sites, as is done by newspapers when they charge advertisers for the space they use but allow the editorial board to determine how the space reserved for news is to be used. The blogosphere or any sites with a reasonable call on being somehow political and cultural and not tied to making a profit could have fees wavered. Ever cleverer search engines will solve problems having to do with the overload of information available on the Internet.
More information is good, though it is also the case that more information is useless if you can’t find what you want. The problem for free speech in the era of the Internet is therefore not the tyranny of the image or the tyranny of the factoid but the tyranny of noise: that there is too much out there that it distracts you from reliable or continuing sources that might contribute to a public dialogue, as happens when the broadcast news networks would not let go of Watergate or the Iran hostage crisis, and so drove politicians and policy makers to deal with what would not leave the public eye. Just as educators think that a sound education means some common curriculum that makes sure that everyone has read some great books or learned some basic American history so that there is a basis for common discourse, so too a democratic society needs some institutions that concentrate the focus of citizens on some continuing issues. Elections do that and so voters pretty much know the issues in a presidential campaign even if most voters do not take an interest in the election much before September. The run up to the Academy Awards broadcast pretty much sets the tone of what were the must see movies of the previous year, and so people catch up. That makes money for the movie industry and contributes to the commonality of national cultural experience. Teenagers, somehow, know about bands that were nowhere a year ago and will be nowhere again next year but are, for the moment, hot. The Internet, for the moment, though, supplies not so much a common culture as that is perpetrated by Google and the homepages of access providers as it provides a set of specialized niches for groups that share common interests: not just perverts, but also political junkies or civil war buffs or the fans of Brittany Spears.
An Internet that best serves the purposes of free speech, which is to provide a ground for common discourse and not just for segmented information, requires procedures for whose shouting is to be in the clear or can vie to out-shout someone else. It is a good question whether the government has a role to play in sorting these matters out. Government does guarantee the rights of contract and the soundness of money and awards frequencies to broadcasters so they don’t muddy one another’s signals. On the other hand, one does not want a government procedure, however enlightened it might seem, to decide “on the merits” which blog is more easily located than another. Whatever procedure is arrived at will be overtaken by events and so become a way to keep a new voice from appearing in its own way. That has been the sad history of campaign finance reform. There is always a new way to raise money that confounds the old rules and that provides also a voice for those previously unheard from: the religious right the Republicans accessed through direct mail techniques; the Internet generation accessed by Howard Dean. So, so far, hands off the Internet.
There remains the problem of privacy which affects even non-addressed communications. You would not want a machine that turned over a record of what television programs you watched to the federal government, though that might well be technically possible. Similarly, you do not want the records of what you individually dial up or the people with whom you communicate turned over to the federal government, albeit there might be some exception warranted by court order. Otherwise, an abiding aspect of free speech that makes it feel free—that you can say something stupid and not be held accountable for it—would be compromised, and people would watch their words if they knew what was good for them. That means the Internet does indeed have to function like a library, brave enough to turn down requests for random or unwarranted searches. People without access to books cannot be said to think freely because they are not allowed to consult the thoughts of others freely. People without unaccountable access to the Internet are in a similar predicament. Whether civil libertarians will be successful in pursuing this cause is still up in the air.