“What Cheap Speech Has Done: (Greater) Equality and Its Discontents”
You can read the latest draft (which is forthcoming in a UC Davis Law Review symposium); but I thought I’d also serialize it here. To begin, with the Introduction (minus many of the footnotes).
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“Freedom of the press,” A.J. Liebling famously said in 1960, “is guaranteed only to those who own one.” Others elaborated: The “press … has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.” “[T]he power to inform the American people and shape public opinion” has been “place[d] in a few hands.”
“[O]n national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis.” “[T]he public has lost any ability to respond or to contribute in a meaningful way to the debate on issues.” Where is true freedom in this sort of oligarchy of speech, the argument went?
The “cheap speech” made possible by the Internet famously democratized mass media communications. Many inequalities of course remain, related to wealth, fame, credentials, reader prejudices, and the like. (It’s hard to imagine a nation or an institution where all speakers really had equal influence.) But it’s easier than ever for ordinary people to speak to large groups. It’s easier than ever for them to create audio and visual works, as well as text. It’s easier than ever for a few of them to get mass individual followings without the need for an imprimatur from the “mainstream media.” It’s easier than ever for groups of ordinary people, whether formally organized or just loose sets of social media connections, to spread ideas that they find worth spreading.
Oligarchy, how quickly we have come to miss you! Or at least certain facets of what you provided: many of the criticisms of the modern Internet media ecosystem—and many of the legal and social reactions to it—stem precisely from its greater egalitarianism, or so I will argue below.
For instance, while the old expensive-speech system was rightly criticized as undemocratic, the flip side was that the owners of the press had assets that were vulnerable to civil lawsuits, and those owners were thus disciplined by the risk of liability, as well as by market forces. They also had professional and business reputations that they wanted to preserve: if reporters spread something that proved to be a hoax, it could mean loss of a job (or at least of opportunity for promotion) for them, and public embarrassment for their news outlet—consider Dan Rather and 60 Minutes being duped in 2004 by the fake President Bush National Guard memos.
Say what you will about the old mainstream media, but it didn’t offer much of a voice to people obsessed with private grievances, or to outright kooks, or to the overly credulous spreaders of conspiracy theories. In 1990, someone who wanted to educate the world about an ex-lover’s transgressions would have found it hard to get these accusations publis
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