The First Amendment is an Information Policy
Jack M. Balkin
Yale University - Law School
February 7, 2013
Hofstra Law Review, Vol. 41, 2013
Yale Law School, Public Law Working Paper No. 279
This essay, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.
Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.
Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.
Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.
Number of Pages in PDF File: 30
Keywords: First Amendment, freedom of expression, infrastructure, Internet, protest, Wikileaks, information policy
JEL Classification: K10
Date posted: February 8, 2013