Reworking Freedom of Speech in a Digital Age

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.

This is not the same thing as a system of freedom of expression. Rather, it is a system of freedom of consumption, where liberty means freedom to choose among media goods. That is a stunted vision of free expression because it undermines the creative and participatory possibilities of digital technologies.

I'd like to offer a different notion of freedom of speech for the digital age: I believe that the point of freedom of speech is to promote a democratic culture.

A democratic culture is democratic in the sense that everyone gets to participate in the production of culture, not in the sense that everyone gets to vote on what is in culture. People are free to express their individuality through creativity and through participation in the forms of meaning-making that, in turn, help constitute them and other people in society.

When the broadcast media first emerged in the twentieth century and become highly influential, free speech theorists worried that democratic discourse would be skewed.  They feared that the information necessary for wise governance would be limited or distorted when the most powerful broadcasting entities were held in a relatively small number of hands. This concern justified public interest regulation of broadcasting, cable, and other mass media.  Twentieth century theorists argued that the goal of freedom of speech was not individual autonomy but providing information necessary for democratic deliberation.

However,  this conception of free speech is seriously incomplete. Focusing as it does on the asymmetries of mass media like television and radio, it does not adequately address the technological changes of the digital age that make it possible for everyone to participate in electronic communication, both as speakers and listeners, both as producers and consumers.  In fact, the digital revolution makes three features of free expression particularly salient:

First, speech goes well beyond the boundaries of deliberation about public issues. Although many people do talk about politics, even more talk about their favorite television show, about art, popular culture, fashion, gossip, mores and customs.

Second, much speech, and particularly Internet speech, is not unidirectional.  It  is interactive. People talk back to each other, they respond to each other. People are not simply passive consumers of media products sent to them by the broadcast media.

Third, speech is appropriative: People build on what others have done. They make use of the products of  mass media and popular culture as well as each other's work, building new things out of old things.

The 20th Century concern with promoting democratic deliberation focused on regulating mass media to ensure delivery of information about public issues to the citizenry. This is only a partial conception, inadequate to deal with the features of speech that the new digital technologies bring to the foreground of our concern. The values behind freedom of speech are about production as much as reception, about creativity as much as deliberation, about the work of ordinary individuals as much as the mass media. Freedom of speech is and must be concerned with the ability of ordinary individuals to create, to produce, to interact, to particulate in culture, to engage in non-exclusive appropriation of ideas and expressions, to make something new out of the cultural materials that lay to hand.

Freedom of speech is more than the choice of which media products to consume. Freedom of speech in the digital age means giving everyone - not just a small number of people who own dominant modes of mass communication, but ordinary people too - the chance to use these new technologies to participate, to interact, to build, to route around, to glom on, to talk about whatever they want to talk about, whether it be politics, public issues, or popular culture.

Participation in culture is important because it allows people to influence each other and change each other's minds. But it also has a performative value: When people make new things out of old things, when they produce, when they are creative, they perform their freedom through their participation in culture.

Today, media corporations, in their quest for ever greater profits, are more likely to treat ordinary individuals as potential consumers of media products, rather than active producers of their cultural world.  This distorts freedom of expression, turning it into a freedom to choose which media products to consume. Surely this choice is part of freedom of speech, but it is not everything, or even the most important thing. The new technologies allow individuals, more than ever before, to produce culture rather than passively consume it; they allow people to enact their freedom through new forms of cultural participation. But from the standpoint of profit maximisation, this active participation has no independent value except to the extent that it involves the consumption of media goods, in which case it is equivalent to consumption. And to the extent that active cultural participation diverts end users and causes less consumption of media products, interferes with an expansive definition of intellectual property rights, or challenges corporate technologies of control, it is less valuable than passive consumption; indeed it is positively harmful and must be cabined in.

That is too limited a vision of what freedom of speech is, and what a system of free expression is for. The digital age offers the promise of a truly democratic culture of participation and interactivity. Realising that promise is the challenge of our present era.