New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age

Abstract

In his seminal 1967 article, Access to the Press - A New First Amendment Right, Jerome Barron argued that speakers have a meaningful opportunity to convey their message only if given access to the mass media. Yet forty years later, the Internet features a bountiful, vibrant stew of individual expression, peer discussion, social networks, political organization, cultural commentary, and user-generated art. Given this emergence of Internet speech, Barron's call for a robust, egalitarian First Amendment may well be best met today not by a right of access to the mass media, but by meaningful opportunities to bypass the mass media. Our interest in rigorous debate among diverse and antagonistic voices might be best served not by requiring media giants to act as quasi-common carriers, but by insuring that peer communication, user-generated content, and new media will continue to level the playing field. The free speech concern is not so much that commercial mass media fail to air unorthodox views - the Internet after all is chockfull of dissident voices - but rather that media and telecommunication conglomerates might successfully bring the Internet to heel, drive out new media, and subject digital communication to their proprietary control.

Hence, to a large extent, the fulcrum of ensuring real opportunities for expressive diversity has moved from calls for speakers' right of access to broadcast and print media to issues involving network neutrality and copyright. The bulk of scholarly and activist attention (among those who sympathize with Barron's proactively egalitarian vision of the First Amendment) has moved from how to regulate mass media to promote expressive diversity to how to ensure that individual speakers and new media have access to the conduits of digital communication and are able to build upon and disseminate the salient images, sounds, and texts that make effective communication and self-expression possible.

This Article focuses on one part of that equation: copyright and its role in shaping public discourse in the digital arena. It focuses in particular on (1) incumbent mass media's untoward use of copyright as a vertical restraint to stifle the new media that provides platforms for peer speech; (2) copyright's continuing part in underwriting traditional media, a salutary function that stands in some tension with the media's use of copyright to suppress new media competition; and (3) copyright's potential for enabling powerful new media, like Google, to threaten expressive diversity in the digital age in much the same way that incumbent media has overwhelmingly dominated public discourse in the print and broadcast era.