Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Rosy Future

[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.]

[I]f the discussion in Parts I and II is correct, the new technologies will change the speech market much more dramatically than we’ve seen so far. Today’s First Amendment law evolved in a media world that had particular characteristics. A relatively few established outlets carried most of the speech that mattered. Extremist speakers had fairly little access to the public. The main news sources—TV programs and newspapers—provided a mix of ostensibly nonpartisan information about a variety of topics. The limited set of sources gave people a more or less common base of information from which to argue. These underlying characteristics are, in my view, more significant than the ones discussed in the last few paragraphs. If they change, what consequences will this have for First Amendment law?

Let me begin my answer with the good news.

Existing First Amendment doctrine is founded on some rather idealized premises. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” ”[T]he fitting remedy for evil counsels is good ones.” People who are offended by speech may “effectively avoid further bombardment of their sensibilities simply by averting their eyes.”

These premises may often be true, but sometimes they simply aren’t. Sometimes the supporters of a thought have millions of dollars, while opponents are too poor to compete effectively. Some markets are monopolized by one speaker, for instance a single cable system.  Good counsels from poor speakers may often not be an adequate remedy for evil ones from richer, louder speakers.  And Justice Stevens had a point: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.”  Unless offense is simply constitutionally irrelevant (in which case the possibility of averting one’s eyes or ears shouldn’t matter), once the words are heard the injury is complete.

The Court has heard these arguments. It has accepted that they may sometimes have merit. And yet it has generally—most notably in Turner Broadcasting System, Inc. v. FCC and Miami Herald v. Tornillo—refused to change the doctrine to accommodate them.  It may have been right to refuse; it might, for instance, be too dangerous to let the government intervene when it thinks it has found “market failure,”  or an inability to counterspeak, or a situation where the sting of offensive words is so great that averting one’s eyes is no remedy. And even when the Court’s assumptions are counterfactual, they might still be required because they represent “the theory of our Constitution” -a basic principle that government must assume to be true even when it might not be. But it remains true that the Court has based its jurisprudence on an idealized view of the world, a view that doesn’t quite correspond to the world in which we live.

What I’ve tried to suggest above is that this idealized world-where money is no barrier to speaking; where it’s easy to avert eyes from offensive speech; where there’s more than one newspaper in each town, and something other than a vast wasteland on TV-is much closer to the electronic media world of the future than it is to the print and broadcast media world of the present. If my predictions are right, the new technologies will make it much easier for all ideas, whether backed by the rich or the poor, to participate in the marketplace. Even if many individuals still can’t afford to counterspeak effectively, there’ll be many more organizations able to speak out on all sides of an issue. And when one’s radio is no longer a dumb receiver but rather a computer capable of screening out whatever the listener wants removed, a householder really will be able to “avert his eyes”—and his children’s eyes—from radio profanity (or TV nudity or what have you), rather than having to wait for the first blow.

Copyright specialists are fond of suggesting that we operate in an electronic age under a copyright law created for a print age. It seems to me that during the print age, the Supreme Court created a First Amendment for the electronic age. The fictions the Court found necessary to embrace are turning, at least in part, into fact.

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