[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
While American government agencies generally don't regulate speech, private parties do. Publishers sometimes refuse to publish material they disagree with. Private groups sometimes pressure publishers to drop certain material. And even the viewpoint-neutral reluctance of publishers to accept work that appeals to too few consumers has the effect of shutting out political fringe groups on all sides of the spectrum.
The shift of control from publishers to speakers will greatly weaken these private speech regulations. When speech comes straight from the speaker to the listener, there's no one in between to regulate the speech, and no one for various groups to pressure if they think the speech is reprehensible. Threats of boycotts may work against diversified companies that sell information to many markets-someone can tell, say, Time Warner Records "If you carry Ice-T's Cop Killer, I won't buy other Time Warner material." But telling Ice-T "If you keep singing Cop Killer, I won't buy your other material" probably won't work; people who say this probably wouldn't buy his music anyway.
There's no consensus today about whether such private regulations are proper. Some consider them almost as dangerous as government censorship; others argue that private pressure on speakers is legitimate, sometimes even laudable. But regardless of one's normative judgment on this, the new information media will make it much harder for such private speech regulation, good or bad, to take place.
Of course, there'll still be some intermediaries. Though the power of publishers will wane, the equivalents of the music stores and bookstores—the music databases, and the computer systems that people access to subscribe to opinion columns, to buy books, or to get video-on-demand—will remain. They could refuse to carry certain kinds of speech, and various groups could pressure them into doing this.
But such a refusal will probably have a limited effect on the speech that's being rejected. Each infobahn-connected home will be able to access every computer service in the nation. If one service refuses to carry, say, gangsta-rap music, others can instantly take advantage of the resulting market.
Moreover, starting a new nationwide electronic service should be comparatively cheap, certainly cheaper than starting a nationwide chain of bookstores or music stores. Today, it's conceivable that all the major stores in an area might refuse to carry a certain product. But even if all the mainstream computer services reject a particular genre, other services-say, an all-gangsta-rap service, or even a service specializing in materials that others don't carry-could easily spring up. The private speech regulations will remain only where there must be intermediaries who select what gets distributed, for instance in newspapers, whose editors will still control who writes for them.
Another form of speech regulation I alluded to above-regulation by poverty and unpopularity-will also become much less potent. Many extremist groups have relatively little ability to speak out because they don't have enough of a base to fund their speech. At least one KKK chapter, for instance, is dormant largely because it's broke. Cheap electronic distribution might mean that not only the ACLU or NRA newsletters, but also the KKK and Communist Party newsletters, could be sent to millions of subscribers. One would hope these fringe groups would find few people willing to listen, but their voices would be amplified along with the voices of worthier organizations.
Finally, the new media might affect one more sort of speech regulation: self-regulation for accuracy. It's generally assumed that intermediaries-publishers, editors, and broadcasters-help make sure the things we read and hear are actually true. They might, for instance, fact-check articles, or refuse to work with writers who are known to be unreliable.
But when speakers can communicate to the public directly, it's possible their speech will be less trustworthy: They might not be willing to hire fact checkers, or might not be influenced enough by professional journalistic norms, or might not care enough about their long-term reputation for accuracy. Talk radio, for instance, has been criticized for being unreliable in large part because of how democratic and spontaneous it is.
{See, e.g., Nat Hentoff, New FCC Head Frets Sometimes over Free Speech, Rocky Mountain News, Nov. 28, 1994, at 42A (describing complaints by FCC Chairman Reed Hundt and outgoing Speaker of the House Thomas Foley); Claudia Puig, FCC Chief Wants Talk Radio Shows To Deal in 'True Facts', L.A. Times, Oct. 14, 1994, at D2, D2-D5 (same); Chuck Raasch, Talk May Be Cheap, But It's Big on Radio, Gannett News Serv., Sept. 25, 1994, available in LEXIS, News Library, GNS File (describing complaints that talk radio is rife with rumor and misinformation); Howard Kurtz, Radio Daze, Wash. Post, Oct. 24, 1994, at B1 (calling talk-radio show hosts angry "rumor-mongers" who eschew maintenance of "appearance of journalistic balance").
A recent science-fiction novel, Vernor Vinge, A Fire upon the Deep (1992), has a memorable line, a sort of proverb of the future. Referring to an interstellar communications network seemingly modeled on today's Internet, the characters say: "It's not called the Net of a Million Lies for nothing." Id. at 228, 309, 431.}
It's not clear, though, what the magnitude of the greater inaccuracy would be. The new technologies will give some untrustworthy speakers a forum that responsible editors would deny them, and some people will end up misinformed by these speakers. But the majority of new speakers may be no worse than most media of today. Many leading publishers actually don't employ fact checkers; and while today's media aren't notorious for intentional falsehoods, misunderstandings and misreporting seem quite common-consider how often we all find errors in newspaper articles about subjects we know well.
At worst, the new technologies may supplement some fairly unreliable publications with other, perhaps more unreliable, ones. At best, they might allow the publication of more trustworthy materials—for instance, science news publications put out by specialists, rather than generalist journalists—that couldn't be printed before.
The post Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Shift of Control to Speakers: The Decline of Private Speech Regulations appeared first on Reason.com.
