Balkin on Internet, Free Speech, Telecom, IP

Last week, Ernest wrote: “I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution … that they can all be analyzed through the lense of rights of distribution.”


Well, Jack Balkin doesn’t exactly cover all those issues in his latest paper, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society (via Legal Theory Blog).  He’s writing about free speech as a principle moreso than the First Amendment itself, but he does relate it to telecom and IP.  He does so by highlighting what the Internet the Internet reveals and makes “salient” about free speech, and discussing what the consequences should be for our policy-making.  In sum, he says we need to shift our focus to creating a democratic culture, rather than simply democratic governance or deliberation over public issues.  Read the abstract and the article for more – here’s a key quote to get you started:



“Freedom is participation. Freedom is distribution. Freedom is interaction. Freedom is the ability to influence and be influenced in turn. Freedom is the ability to change others and to be changed as well. Freedom is the ability to glom on and route around. Freedom is appropriation, transformation, promulgation, subversion, the creation of the new out of the old. Freedom is mixing, fusing, separating, conflating and uniting. Freedom is the discovery of synergies, the reshuffling of associations and connections, the combination of influences and materials.


Freedom is bricolage.”


And, in closing, a hope and a warning:



“The digital revolution is a revolution, and like all revolutions, it is a time of confusion, a time of transition, and a time of opportunity for reshaping the structures of the economy and the sources of power. As a time of opportunity it is also a time of opportunism, a period in which the meaning of liberty of expression will be determined for good or for ill, just as the meaning of economic liberty was determined in an earlier age. Make no mistake: The digital age will change the meaning of freedom of expression. The only question is how it will change. If we do not reconsider the basis of liberty in this age, if we do not possess the vigilance of the guide as well as the guard, we shall end up like every person who travels through the wilderness without a compass, or through the forest without the forester. We shall end up lost.”


Balkin also argues that courts will ultimately be ill-suited for the policy-making we need. Courts generally protect free speech in the form of individual rights, whereas, according to Balkin, promoting a democratic culture in the digital age requires a conducive “technological and regulatory infrastructure.”  That will take a more comprehensive approach to analyzing technologies than a court, facing a particular existing technology under a statute with limited remedies, can accomplish. Citing Lessig in Code and an interesting article by Beth Noveck entitled Designing Deliberative Democracy in Cyberspace:the Role of the Cyber-Lawyer, Balkin states that this requires “not simply lawyers who study cyberlaw, but lawyers who think about how technology should be designed and how public policies can be achieved through technological design.”


You might also want to check out an article I come back to again and again, Neil Netanel’s Copyright and a Democratic Civil Society. The result is somewhat the same so far as copyright goes – Netanel argues for greater ability for individuals to build on works of others and participate in culture – but he does come at it from more of a demcoratic governance standpoint.

ReplayTV Customers Get a Felten-like Win

The case is over, the studios agreed not to sue these customers, but they can certainly sue in the future – the court did not rule on the merits.