Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Democratization and Diversification + Shift of Control from Intermediaries

[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.]

The new technologies I outlined above will, I believe, both democratize the information marketplace—make it more accessible to comparatively poor speakers as well as rich ones—and diversify it. Of course, the power to make one's speech globally available isn't the power to make it globally heard. One still has to get people to listen, through advertising, word of mouth, good reviews, or other devices. Advertising will still cost money, and well-funded bands or columnists or newsletters will still attract more readers than poorer ones will.

Nonetheless, while advertising is obviously useful, it's not strictly necessary; many products are sold today largely through word of mouth or reviews (especially when one considers radio as the reviewing medium that it is). Wealth will certainly remain relevant in the new information structure, but it will be a good deal less relevant than it is today.

Likewise, a greater diversity of available speech need not lead to diversification of what is actually consumed. It's possible that even after the coming of the infobahn, most people will still consume largely what they do today. But at least those people whose tastes differ from the majority's will be served. They might, of course, continue to complain about the majority's bad taste; but that's something no technology can do much about.

[And t]he trends I've described have one thing in common: They tend to shift control from intermediaries—record labels, radio and TV station owners, newspaper, magazine, and book publishers—to speakers and listeners. The relatively low cost of electronic distribution gives speakers more control over what is said: A speaker need no longer satisfy the intermediaries before being allowed to speak. The relatively low cost of personalized electronic distribution gives more control over what is heard to listeners; a listener may select his own mix of music and information, rather than taking what the intermediaries give him.

[1.] Shift of Control to Listeners

Ease of Getting More Information: The shift of control to listeners will, I think, make people better informed about the things in which they're interested. Say I want to read science stories, news about Eastern Europe, and opinions about the crime problem. The newspaper today gives me only as many stories on these topics as a typical reader might want to see. But I want more!

With the new technology, I'll be able to get as many of these stories as I want, either through receiving short newsletters (which will be cheap and easy to subscribe to), or through configuring for myself the mix of the stories in my morning paper. I may even be able to get important source material, such as the complete text of a speech, or a document, or an interview. Such material rarely gets printed in its entirety, because space and the patience of most readers are limited. But it can easily be made available electronically to those who want it.

Ease of Being Closed-Minded: On the other hand, part of the value of the mass media is that they expose readers to topics and viewpoints the readers didn't select. A reader who thinks he doesn't care about science might come across a science story on the front page and find it interesting. A liberal reader may stumble across a conservative column in his daily paper and be persuaded by it. Yet the reader might not have subscribed to either story if he'd had the choice.

Of course, with the new system, people who want a variety of topics or views will easily be able to get them. Wise readers will probably request some general news for their mix, rather than just saying "give me international news, law, and science, and nothing else." Conservatives could subscribe to well-regarded liberals, and vice versa. Some columnists will team up with others to produce two-sides-of-the-issue columns, much like the Column Left and Column Right in some newspapers today, or the TV show Crossfire. The new system may provide more multisided presentations than exist today (just because there'll generally be more options).

Many people, though, might not want a variety of topics, or especially a variety of views. Most of us to some extent prefer to listen to people with whom we agree. Often we won't even read opposing views in a newspaper that we've already bought; and we're especially unlikely to pay money—even small sums—for opinions with which we know we disagree. {One recent article, for instance, criticized the "fragmented, treacherous and completely foreign communications landscape" created by "cable and interactive television, remote control, VCRs, E-Mail and faxes," in which people want their news "from like-minded people, and stated in their own terms." This, the writer argues, leads people to "often choos[e] information delivered by demagogues appealing to fear, anxiety and prejudice through heated rhetoric and distortion." The author may be overstating things, but I think there's something to what he says.} There are exceptions, but there's reason to fear that this sort of behavior is the rule.

Every reader, of course, has a right to be closed-minded; and people are already plenty closed-minded today, so the new technologies might not make a big difference in this respect. But they may marginally increase the degree to which people shield themselves from topics and opinions they expect to dislike.

Common Culture: Another part of the value of the mass media is that they give viewers a shared base of information. Every evening millions of people watch network news; every week they watch more or less the same TV shows. When they talk about events with friends or coworkers, they at least have a starting point for discussion.

But as the sources of information and entertainment become less generic and more custom-tailored, people may lose some of this common ground. They may find themselves having fewer shared cultural referents, and less common knowledge about current events, even if they have more knowledge about the events that interest them most.  People who read the Democratic Party's organ and people who read the Libertarian Party's organ might have a hard time even speaking the same language about the issues.

Again, those who want to share common ground with their peers may choose to continue listening to Top 40, or watch news shows that aim for a well-rounded, mainstream view of the world. But many people won't do this. It's hardly likely that American society will fall apart because of this, but it's at least possible that more diversity of sources might mean less common ground and less social cohesion. {This is analogous to the argument that has sometimes been made about private schools, which give parents more control over their children's upbringing, but are thought by some to threaten the common culture. Cf. Meyer v. Nebraska (1923) (discussing argument that ban on teaching foreign languages would "foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters").}