Dah - balkin free speech

1/29/2009

The Future of Free Expression in a Digital Age
Jack M. Balkin* 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, intellectualproperty, 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 FirstAmendment 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 ofindividuals and groups to share their views with others, and build on the ideas of others; and 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 inwhich 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 ofspeech we enjoy in this country without the judicial elaboration of constitutional values

*

Knight Professor of Constitutional Law and the First Amendment, Yale Law School.

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Electronic copy available at: http://ssrn.com/abstract=1335055

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in the twentieth century. In the twenty-first century, however, the future of the system of free expression will require othersources of assistance. And in the twenty-first century, the values of freedom of expression will become subsumed under an even larger set of concerns that I call knowledge and information policy. To explain why, I offer a few examples that, at least on the surface, have little to do with the judicial doctrines of the First Amendment, but a great deal to do with freedom of speech. My first example isthe current debate over network neutrality. Today, increasing numbers of Americans access the Internet through network providers, either DSL companies or cable companies.1 These companies act as conduits for the speech of others. Hence, we depend on them for access to other speakers, just as we depend on traditional telephone service. However, network providers are not currently subject tonon-discrimination regulations like the common carriage requirements that apply to traditional telephone service.2 This creates several possible dangers. First, network providers might want to favor the content and applications of some speakers and businesses over others.3 They might block access to disfavored sites and services or permit access to end-users only if these sites or services pay a specialfee.4 For example, the Associated Press recently discovered that Comcast had secretly blocked use of a file sharing service called BitTorrent, which is used to move large files across the Internet.5 Second, many endusers regularly visit certain heavily trafficked sites—like eBay, Google, or sites that use considerable bandwidth.6 Network providers might seek to charge these sites money to ensure...