Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Video (TV and Movies)

[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.]

“[T]hough the perceived defects of [television] are many … they can be more or less subsumed in two words: vast wasteland.” Newton Minow, then chairman of the FCC, coined this pejorative in 1961, and it has (justly) stuck.

But if your local bookstore let you buy, at any given hour, only five books—each chosen for maximum appeal to 250 million people—you’d think of publishing as a vast wasteland, too. This would be true even if the store had fifty books, or maybe even 500 books to match the touted 500-channel cable system of the future. There’d be a greater chance that you’d get what you want, but still you’d often be dissatisfied.

The problem with TV isn’t lack of material. Plenty of excellent television has been created in the medium’s almost fifty years. Add to that the many great movies that have been made, and there’s enough for each of us to watch for hours every day and still only get the stuff we enjoy.

The problem is that broadcasting can’t get you what you want when you want it. It can only get you what millions of people prefer, and it can only give it to you at the time chosen by the broadcaster, not the time chosen by you. Five hundred channels may help, because they may make room for material that appeals to only, say, a few hundred thousand people; but that will still be inadequate.

What people would like, I believe, is to choose from home—at any time convenient to them—any TV show or movie they want, just as they choose a book in a bookstore, only more conveniently and less expensively (or even free, since the medium might still be advertiser-supported). Some people might still want someone else to decide; they might, for instance, ask for a random comedy, or a random comedy praised by a given reviewer. They might even ask for the latest episode of a particular new show, just as they do on TV today, though at a time that’s convenient for them. But they’ll be the ones who choose, or choose to leave the choice to someone else.

This, of course, is “video-on-demand,” which is already being tested—in a primitive form—in various markets. Many current video-on-demand proposals have gotten a skeptical market response. But the barriers all seem to me to be a function of current technology—the degree to which today’s homes are properly wired (or fibered) for this service, the current costs of the equipment, and so on. The question, I think, is only whether video-on-demand will start arriving now or in several years.

Effect on What Will Be Available: As with the other media, this customization will give people access to much more diverse material. Today, to be broadcast on TV, new programs must have an expected audience of millions. To justify access to the scarce shelf space available in video stores, videotapes also need a large market. Lots of good stuff that doesn’t appeal to a large enough audience never makes its way to the TV stations or video stores.

The new system should also increase the amount of new material being made. The cost of producing high-quality, high-production-values entertainment—from $500,000 to over $1 million per hour—will slow down this diversification. So long as production costs remain high, each new program will still have to appeal to many people. Still, it will probably need less of an audience than it does today, when producers face both high production costs and limited distribution channels. Moreover, some video programming—talk shows, talking heads shows such as the McLaughlin Group, stand-up comedy, and some kinds of sporting events—costs relatively little to produce. Production of these shows ought to mushroom.

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