First Amendment Values versus the First Amendment

I would like to conclude my participation in this month’s Cato Unbound with some reflections generally on democratic culture and the internet and specifically on Jack Balkin’s 2004 article “Digital Speech and Democratic Culture.”

It is hard to fault Balkin’s vision of democratic culture. But time has a way of complicating or even undermining attractive ideas, and so it is with Balkin. Tim Wu has recently set out some of the problems noted with internet speech. Democratic culture may still be better than its competitors on the whole (as argued earlier at least with regard to freedom of speech), but there are reasons for concern.

Balkin offers in some ways a typical Progressive narrative about free speech on the Internet, a widely shared story judging by recent protests against the end of net neutrality. Business (i.e. corporations) are always a threat to some important value, while government both threatens and encourages them. In this case, Balkin thought the search for profits would constrain the speech of individuals (p. 22). Instead, the monetization of content through an advertising model rendered user-generated cultural products a tremendous revenue generator for platforms which host and organize it. Rather than allying with commercial content creators to strictly enforce their “paracopyright” claims, platforms have pursued profits toward a much more democratic, participatory internet. Balkin’s fear of perfectly vertically integrated media conglomerates was rendered hollow because little demand emerged for what they were selling. Top down design of cultural products beat crowdsourced creation only until it was discovered that advertising could pay for its distribution. I am not seeking to score points here. After all, predictions are hard, especially about the future. But importing the binary oppositions of high Progressivism (or other binaries) tends to lead us astray. Perhaps business might be both a demon and an angel (or something in between) in fostering democratic culture?

I get nervous when I read the phrase “first amendment values.” An earlier, pre-internet use of term (or the related phrase “the purposes of the First Amendment”) led some to argue that the First Amendment required restricting the autonomy of some speakers in order to have a better public debate, that is, to better attain the values of the First Amendment.

That argument came from Alexander Meiklejohn’s view that free speech should serve democracy. Balkin thinks Meiklejohn no longer applies, and indeed, Balkin wishes to maintain constraints on censorship. I do wonder though what means might be justified by “free speech values” and democratic culture. The values of democratic culture would seem to be positive rights that obligate others. What tradeoffs are implied by those positive rights?

Consider intellectual property. To participate in making a democratic culture, people need to (and do) use cultural artifacts owned by others. Balkin calls for strong “fair use” to encourage democratic culture. Some would deny recognition and protection to intellectual property; after all, Mickey Mouse has retained his popularity because he has been absorbed into and retained by popular culture, long after Walt Disney penned his last cheerful rodent. On the other hand, in initially creating Mickey, Disney birthed an incredibly potent cultural product, and since at least 1688, the added value of that type has justified a kind of private property, for some people anyway.

In a culture characterized by endless remixing, the locus of value creation can be difficult to determine. Contemporary examples, in which the creation-remixing loop is much tighter, ably demonstrate this difficulty. Consider the copyright battle between Katy Perry and an anonymous 3D modeler who created and freely distributed designs for a statue of one of Perry’s costumed backup dancers whose lackadaisical performance was celebrated by internet users. Was Left Shark made valuable because of the work of Perry’s design staff, the dancer’s lack of preparation, the internet comments and memes celebrating his lack of preparation, the platforms that hosted and transmitted the memes, or the creation of a .STL file of the shark in the face of its transient popularity? How much value did each of these actors create? Does the temporary, fad-like nature of Left Shark’s popularity influence our assignation of value? Left Shark faded before being politicized, but what of commercial art that is later politicized, like Pepe the frog? I shall not pretend that libertarians are of one mind on intellectual property. But the status of intellectual products matters to libertarians; if intellectual property exists, Balkin’s democratic culture creates a positive right. If not, no rights are at issue.

Balkin shows that questions about the Internet, free speech, and democratic culture are hardly new. But 2017 does seem to have been a turning point. These questions now seem less abstract and more pressing. The year to come and the years thereafter may well make the struggle over answers to these questions central to American democracy.