1st Amendment

Jack M. Balkin (Yale University - Law School) has posted 'The First Amendment is an Information Policy' by Jack Balkin in (2013) 41 Hofstra Law Review, based on the 20th annual Hugo Black lecture at Wesleyan University, argues that

we should think about individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

Although we normally think about the First Amendment as an individual right, we should also see it as an integral part of a knowledge and information policy for a democratic state. That is because the practical ability to speak rests on an infrastructure of free expression that involves a wide range of institutions, statutory frameworks, programs, technologies and practices.

Using the examples of democratic protests in the Middle East and the controversy over WikiLeaks, the essay explains how free speech values are implicated in knowledge and information policies, in the design of digital networks and in the maintenance of infrastructure.

Around the world today, the fight over free speech is a fight over knowledge and information policy, and, in particular, how the infrastructure that makes free speech possible will be designed and implemented. Although the First Amendment is a crucial information policy for democracy, it is only one information policy among many. It needs the assistance of an infrastructure of free expression to make good on its promises. We must design democratic values into the infrastructure of free expression if we want an infrastructure that protects democracy.

Balkin comments that

It is not an exaggeration to say that modern states are informational states: states that recognize and solve problems of governance by collecting, analyzing, and distributing information. Knowledge and information policy is at the heart of government today.

Knowledge and information policy is about far more than the protection of free expression. Modern governments provide social services and benefits to their citizens, like social security, Medicare, and veterans’ pensions. This requires vast data processing systems to compile statistics and distribute benefits. Modern citizenship requires data processing in order to distribute the benefits of citizenship, and this leads to the creation of vast government databases, which, in turn, creates the need for privacy regulation, another important information policy. Governments also invest heavily in public education because it is crucial to democratic citizenship. Governments subsidize the production of information, like agricultural and weather information, as well as geographical data. And, especially in the United States, governments subsidize most basic scientific research.

You might think that information states must tend toward democracy. But it is not so. East Germany had an enormous information collection apparatus—the Stasi—but it certainly was not democratic. Today, China’s knowledge and information policies are designed to keep the Chinese Communist Party in power while growing China’s economy.

The big choice we face today is between democratic information states and authoritarian information states. Different countries lie on a spectrum between these two ideal types.

Authoritarian information states are information gluttons, information misers, and information monopolists. They try to collect as much information as they can, but they do not share it with their people. They try to monopolize control over information in order to serve the interests of those in power.

Democratic information states, by contrast, are information gourmets, information philanthropists, and information decentralizers. They collect only the information they need for governance, and they do not keep information secret any longer than necessary. They not only willingly share information with their citizens, they also create information and knowledge for their citizens to use and enjoy. Democratic information states try to ensure that their citizens have ample opportunities for education; they promote access to knowledge and information in order to form public opinion and to keep government officials in check. Democratic information states also decentralize the production of knowledge and information because this promotes democratic self-government.

Many people are optimistic that the Internet and the digital age will make authoritarian government increasingly difficult if not impossible. I am not so sure. In fact, as I will describe shortly, it is possible for authoritarian states to use the Internet and digital technologies to create digital versions of authoritarian information states. More troublingly, it is also possible that the Internet will tempt democracies like the United States to adopt increasingly authoritarian knowledge and information policies out of fear of terrorism and in order to protect interests in intellectual property.

Justice Hugo Black gave a pretty good account of a knowledge and information policy for a democracy. In a 1945 case called Associated Press v. United States, he argued that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, [and] that a free press is a condition of a free society.” “Diverse” means that we should decentralize information production and information distribution. No one entity should control knowledge production, many people must participate in creating information, and it should be widely distributed. “Antagonistic” means that knowledge production should be structured to allow the clash of different viewpoints, and to encourage dissent and innovation. Therefore, governments should protect and foster institutions, like the press, universities, and scientific research, that can check facts, produce new forms of knowledge, and help guarantee the quality and salience of information. Associated Press involved an agreement by newspapers to limit access to information to their members and create barriers to entry by other news organizations. The members of the Associated Press argued that as members of the media, they had a First Amendment right to do so.

Justice Black disagreed. The Associated Press was using its monopoly power to stifle competition in the gathering and dissemination of news. Justice Black argued that the same values that prevented the government from restricting the flow of information also gave it the right to regulate powerful private interests when they interfered with “the widest possible dissemination of information from diverse and antagonistic sources.” As Justice Black put it, “[i]t would be strange indeed . . . if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.” Justice Black explained:

Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.

Today we live in a world of large and powerful corporations that shape and control the production and flow of knowledge. Many of these players now use the First Amendment to challenge regulation of their business models and to limit competition in the marketplace of ideas. Justice Black’s opinion in Associated Press reminds us that the First Amendment protects speech, not incumbent business models.

Government regulation that decentralizes control over innovation and knowledge production does not necessarily violate the First Amendment and may even be required to promote its central values. As Justice Black put it, “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”

There are two big ideas that I want you to take away from this Essay. The first is that it is important to think in terms of knowledge and information policy. Think about our valued individual liberties of freedom of speech, press, and assembly not in isolation, but in the larger context of policies for the spread and growth of knowledge and information.

We usually talk about the First Amendment not as a policy but as an individual right. But I also want you to see it as an integral part of knowledge and information policy. Why? Because many parts of information policy cannot easily be cashed out in terms of individual rights. You do not have an individual right to have the government create public libraries. The Constitution did not require the early Congress to subsidize newspaper delivery. You do not have an individual right to government decisions about how much to invest in science in fiscal year 2011. You do not have an individual right to have fiber optic cable brought to your neighborhood, or to have particular frequencies of the electromagnetic spectrum sold at auction, handed out in the form of licenses, or made into a commons for spread-spectrum technologies. These are policy choices. They are decisions about institutions and technological design. And they are crucial to your practical ability to speak in a digital world.

The second big idea is that individual freedoms of speech, press, and assembly require an infrastructure of free expression. That infrastructure includes technologies of communication, policies that promote innovation and diffusion of knowledge, the institutions of civil society that create knowledge and help ensure its quality, and government and private investments in science, education, and communications technology.