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Reworking Freedom of Speech in a Digital Age

By Jack Balkin - posted Tuesday, 22 June 2004

The new digital technologies change the social conditions of speech. They create new conflicts between ordinary individuals, who possess tremendous new opportunities to communicate and create, and the information industries, who want to expand markets and maximise profits from the same technologies. These conflicts will be fought out in debates over the free speech principle. In light of these changed circumstances, we must pay careful attention to the goals of freedom of speech in the digital age.

Technological change modifies and disrupts social relations. It foregrounds certain elements and aspects of social life, making them more central, more salient, more important than they were before. The digital revolution has reduced the costs of copying and distributing information drastically, almost to the vanishing point. This makes it easier for people to talk to and work with each other. Equally important, the digital revolution provides common standards and protocols for storing information and moving it from one place to another. These common standards make it easier for people to alter and innovate with digital information.

Lowering the costs of transmitting, distributing, creating, and modifying information has important democratising and decentralising effects. It lowers the costs of forming communities of interest, of interacting with people, of making new things out of old things, of innovating, copying, altering and modifying, and of distributing an individual's ideas to large numbers of people.


The mass media that developed in the 20th Century are asymmetrical - one entity speaking to many persons, and unidirectional - the broadcaster sends information to you through the radio or television, but you cannot use the radio or television to talk back. The Internet is quite different. It is neither asymmetrical nor unidirectional; lots of people can broadcast and talk back to each other. Equally important, the Internet allows ordinary people to route around the intermediaries and gatekeepers of the traditional mass media. You can publish your book on the Web. You can make your own movie or demo tape and distribute it on your website. You can say whatever you want on your own weblog.

Many people assumed that the Internet would displace the mass media and publishing houses as traditional gatekeepers of content and quality. This has not occurred. Rather, the Internet has provided an additional layer of communication that rests atop the mass media, draws from it, and in turn influences it.

One example is a website called Television Without Pity, run by a group of mostly Canadian television fans. They watch television and offer play-by-play accounts of what happened on each episode, along with their own witty and sarcastic commentary. Television Without Pity has two key characteristic features of Internet speech: it routes around traditional media gatekeepers, and  it gloms onto and innovates with the products of mass culture. Television Without Pity 's participants reach their audiences directly without going through the mass media as professional television critics do. Their website offers a way for viewers to broadcast their own opinions to a wide audience and talk back to the people who produce television shows.

Fan fiction is another good example of routing on and glomming on: People write stories involving characters in their favorite books, movies, or television shows, carrying existing plot lines further and sometimes constructing entirely new episodes. Some people even use the new technologies to annotate movies or make their own director's cuts. A Star Wars fan got a copy of The Phantom Menace in digital format, and reedited it digitally to eliminate a character he didn't like.  He called the result The Phantom Edit. Once again we see the characteristic features of Internet speech - ordinary people appropriating elements of what they find in culture, using them as launching pads for innovation and imagination, and turning them to their own creative purposes.

But here is the catch. The very same digital technologies that empower individuals and open up possibilities for widespread cultural participation also create  a powerful and pervasive social conflict between the expanding information industries, who make money from digital technologies, and the ordinary people, or 'end users,' who surf the Internet. Lowering the costs of information production and distribution opens up new markets and creates new opportunities for making money. Yet these same technologies also make it easier for end users to copy, distribute, manipulate, and appropriate information.

This is the central conflict of the digital age: Digital technologies offer new possibilities for communication, creativity, and innovation, decentralising control over information and democratising access to audiences. At the same time,  we can see the increasing importance of information as a commodity to be bought and sold, and the expansion of new markets for the sale and development of intellectual property and media products.
Like many social conflicts, this one is fought out in law, and, in particular, through struggles over the meaning of the free speech principle. The conflict arises in several different locations in legal doctrine.  Telecommunications policy is one important area.  Another is intellectual property.


Media corporations have sought to expand intellectual property rights horizontally by including protection for derivative works, sequels, characters, plots, and so on, and vertically, by increasing the length of intellectual property protections like copyright terms. They have also turned to technology to protect their intellectual property interests. A central example is digital rights management schemes, technological devices that prevent copying of and control access to digital content, including digital content that has been purchased by the end user. Digital management schemes can make digital content unreadable after a certain number of uses; they can control the geographical places where content can be viewed, they can require that content be viewed in a particular order, they can keep viewers from skipping through commercials and so on. And media corporations have successfully pressed for new legal rights against consumers and others who wish to modify or route around these forms of technological control.

The problem is that some of these legal and technological strategies are seriously curtailing freedom of expression. Repeatedly the concepts of speech and property have been invoked selectively to promote the economic interests of the most powerful economic entities that characterise the digital age - the media corporations that produce and sell media products and other informational goods.

This approach threatens to undermine the participatory promise of the digital revolution. The point of aggressively controlling distribution networks and ramping up intellectual property rights is to promote consumption rather individual creativity, to place the end-user in a sort of consumerist utopia, continuously being offered a series of opportunities to consume or buy, which are seamlessly melded with other forms of communication. In this business model's most perfect form, communication and consumption would become one.

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Article edited by Sarah Johnson.
If you'd like to be a volunteer editor too, click here.

This is an edited extract from The Julius Stone Address, given to the Julius Stone Institute of Jurisprudence, University of Sydney, on Thursday, 31 July 2003.  The full text can be found here (pdf, 119KB).

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About the Author

Jack M Balkin is the Knight Professor of Constitutional Law and the First Amendment, and Director of The Information Society Project, Yale Law School.

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Jack M. Balkin's Webpage
Television Without Pity
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