Setting the Wayback Machine to 1995: “Cheap Speech and What It Will Do”: Shift of Control to Speakers: The Decline of Private Speech Regulations
[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.]
While American government agencies generally don’t regulate speech, private parties do. Publishers sometimes refuse to publish material they disagree with. Private groups sometimes pressure publishers to drop certain material. And even the viewpoint-neutral reluctance of publishers to accept work that appeals to too few consumers has the effect of shutting out political fringe groups on all sides of the spectrum.
The shift of control from publishers to speakers will greatly weaken these private speech regulations. When speech comes straight from the speaker to the listener, there’s no one in between to regulate the speech, and no one for various groups to pressure if they think the speech is reprehensible. Threats of boycotts may work against diversified companies that sell information to many markets-someone can tell, say, Time Warner Records “If you carry Ice-T’s Cop Killer, I won’t buy other Time Warner material.” But telling Ice-T “If you keep singing Cop Killer, I won’t buy your other material” probably won’t work; people who say this probably wouldn’t buy his music anyway.
There’s no consensus today about whether such private regulations are proper. Some consider them almost as dangerous as government censorship; others argue that private pressure on speakers is legitimate, sometimes even laudable. But regardless of one’s normative judgment on this, the new information media will make it much harder for such private speech regulation, good or bad, to take place.
Of course, there’ll still be some intermediaries. Though
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