The Future of Free Expression in a Digital Age

Abstract

In the Information Age, you would think, there would be no more important part of the Constitution than the First Amendment. After all, free speech guarantees should have a great deal to do with a knowledge economy, and a world in which wealth and power increasingly depend on information technology, intellectual property, and control over information flows.

For some time now, I have been thinking about how our understandings of the First Amendment are likely to change in a digital age. Gradually, I have come to the conclusion that we face a transition of enormous irony. At the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the First Amendment seems increasingly irrelevant to the key free speech battles of the future. Or, more precisely, the judge-made doctrines that I teach in my First Amendment classes seem increasingly irrelevant.

The key values that underlie the First Amendment seem as important as ever: the protection of individual freedom to express ideas, form opinions, create art, and engage in research; the ability of individuals and groups to share their views with others, and build on the ideas of others; and the promotion and dissemination of knowledge and opinion. All these values remain as important in a world of blogs, search engines, and social software as they did in an Enlightenment era dominated by printing presses, pamphlets, and town criers. What has changed, however, is the technological context in which we try to realize these values.

In that context, the most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. We probably could not have achieved the degree of freedom of speech we enjoy in this country without the judicial elaboration of constitutional values in the twentieth century. In the twenty-first century, however, the future of the system of free expression will require other sources of assistance. And in the twenty-first century, the values of freedom of expression will become subsumed under an even larger set of concerns that I call knowledge and information policy. To explain why, I offer a few examples that, at least on the surface, have little to do with the judicial doctrines of the First Amendment, but a great deal to do with freedom of speech.