Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Books, Magazines, and Newspapers: How the New Media Will Change What Is Available

[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.]

[a.] More Diversity

Even more than with music, the lower distribution costs will change what is available, as well as how it's available. High distribution costs have meant that media organs-newspapers, magazines, radio stations, TV stations-control which commentators are available and which aren't. Media organs may control based on their own political opinions, and they also control based on what their readers are likely to want. Even if a million people nationwide want to hear the Libertarian—or Socialist—view of things, there may be too few such people in each major market to make it worthwhile for newspapers to carry columns that appeal to these readers.

Lower distribution costs mean columnists and organizations can thrive if they appeal to even as few as several thousand people. Say columns cost one-half cent for transmission, one cent for paper, and one-half cent for royalties to the author. If even 30,000 people nationwide are willing to subscribe to a daily column—for about $7.50 a year—the columnist will make $150 a day, enough to keep body and soul together.

An organization like the ACLU, which might get one million subscribers, can make $3.5 million yearly on these terms, enough to hire editors, writers, and news gatherers, and perhaps even fund the organization's other public interest activities. Poor speakers will get a soapbox; listeners with unusual tastes will find more material that will please them; and the mix of available commentary will be much less bland than it is today.

The same will happen for books. Besides making books cheaper and largely eliminating the problem of books being out-of-print, the new technologies will also allow more books to be published. Publication, in fact, will consist simply of the writer sending the book to some electronic databases. There'll be no publisher, no veto power on the publisher's part, and no need for the book to have mass appeal before someone will invest in it.

The story for newspapers and magazines will be somewhat different. Though their distribution costs will fall, their production costs will still be substantial. The news will still have to be gathered, written up, and edited. But the total costs will be lower than they would otherwise be, so publications will be easier to start and easier to keep profitable.

Some Examples: Electronically distributed short newsletters already exist today, though-for technological reasons-not yet in the form I describe. Fax newsletters are already used for timely, relatively low-cost distribution. (Though faxing may cost money for phone calls, it saves labor costs-stuffing envelopes, printing labels, and the like-because faxes can be automatically sent by computer.) Bankruptcy Creditors' Service sends specialized newsletters to creditors of debtors-in-possession. The Thoroughbred Daily News circulates a daily delivered-by-6-a.m. newsletter summarizing the previous day's racing. These services are expensive, but that seems to be just a function of what the market will bear. They can be cheaper if the author and the customers prefer: Some religious organizations, for instance, have started free religious fax newsletters for their congregants.

Westlaw is another example. Westlaw has several databases-WLB (Westlaw Bulletin), WTH-CJ (Westlaw Topical Highlights on Criminal Justice), WTH-LB (Westlaw Topical Highlights on Employment Law), and others-that West updates daily with one-paragraph squibs on potentially important recent cases. The cases range from a few days to a few weeks old.

Using Westlaw's Westclip service, I've asked that new additions to those databases be printed daily to my local printer. I've also configured special queries of my own-for instance, to print every day all new cases on free exercise of religion. Each morning, I go to the printer and get new information that I might otherwise have never seen. It's like a daily newspaper chock full of articles for legal junkies like me.

Of course, this would cost me a fortune if West Publishing didn't give us teachers free access. But West lets me access this service for free only because the marginal costs of my use are very low. If West had to print and mail the results of my queries every day-which would cost them a lot in labor and postage-they'd almost certainly not make the service available free, even to law schools.

Likewise, Minnesota gubernatorial and senatorial candidates recently debated one another online, using an Internet mailing list. A moderator asked a question; the candidates gave their answers, in a few paragraphs each; and they then responded to one another. Each candidate entered a message or two each day. I suspect most of the "viewers" read the messages online, but many could easily have configured their mail systems to print the messages automatically, if that's what they preferred. The debate didn't change the course of the election—there were only 500 people watching—but it did show the power of electronic communications. Once the candidates agreed to participate, no one needed to persuade the media that carrying the debate would attract enough viewers or readers.

Similarly, Patrick Crispen, a public-spirited student at the University of Alabama, recently ran a series of online Internet tutorials. Crispen's announcement of his tutorials generated 62,000 subscribers. Obviously, the number would have been lower had the tutorials not been free, and because of current Internet etiquette, he would have had a harder time advertising a pay-for service. Still, Crispen has, with no expenditure other than his time-and his university's computer resources-drawn an audience many newspapers would envy.

Finally, when reporters at The San Francisco Chronicle and The San Francisco Examiner went on strike in November 1994, the striking employees-unfazed by lack of the newspapers' printing plant and distribution network-produced their own paper, The San Francisco Free Press, and delivered it over the Internet. The electronic newspaper was the first to break a story, which got a lot of play during the November 1994 senatorial campaign, about Senator Dianne Feinstein's alleged employment of an illegal alien.

[b.] Custom-Tailored Magazines and Newspapers

But beyond increasing the number of publications, cbooks will also change the very concept of reading a magazine or a newspaper. No one wants to read, say, the whole Los Angeles Times, with all its stories about news, sports, entertainment, food, travel, cars, and so on. No one reads the newspaper cover to cover. People read most parts of some sections and some parts of others, and throw out the rest.

What people want are newspapers and magazines with stories about the things that interest them (just as they want radio with the songs they like). They may want a newspaper that has, for example, the top twenty international stories of the day (with a special focus on news from Africa), the top five national stories, the top five science stories, the top ten law stories, news about football and about the Los Angeles Dodgers, and, say, ten random stories just for the unexpected surprise.

Readers do want the stories to be professionally investigated, written, and selected, perhaps by the same staff that brings them the newspaper or the magazine today. But they want them in the mix they prefer. And newspapers already realize people want this-witness the local editions of various papers, such as the San Fernando Valley edition of The Los Angeles Times.

Today's newspapers and magazines are creatures of a particular economic fact of the print age: To print cheaply and distribute cheaply, you have to print many copies of exactly the same thing. If most readers in Los Angeles don't care about science or about Angola, the paper puts in few stories about these subjects, and the oddball readers lose out. On the other hand, O.J. Simpson stories fill the front page, and the handful of non-O.J.-trial-buffs must wade through them to find what they like.

Yet electronic distribution doesn't require uniformity. Letting a user configure his own mix of materials is a trivial software problem. Readers will set up this mix at subscription time; people who don't want to bother with this will get a default mix that they can change whenever they like. Moreover, the subscribers could mix stories from different sources-local news from The Los Angeles Times, international news from The New York Times, and national and business news from both The New York Times and The Wall Street Journal, to get two different perspectives.