55 Pages Posted: 3 Dec 2003
This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning - making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.
By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values - interactivity, mass participation, and the ability to modify and transform culture - must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists.
Keywords: freedom of speech, cyberlaw, constitutional law, democracy, first amendment, telecommunications, intellectual property, popular culture
JEL Classification: K10
Suggested Citation: Suggested Citation
Balkin, Jack M., Digital Speech and Democratic Culture: a Theory of Freedom of Expression for the Information Society. New York University Law Review, Vol. 79, No. 1, 2004; Yale Law School, Public Law Working Paper No. 63. Available at SSRN: https://ssrn.com/abstract=470842 or http://dx.doi.org/10.2139/ssrn.470842