Protecting and Promoting Dissent and Free Expression in the Digital Age

-- By ThomasHou? - 01 Dec 2011

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. . . . We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Section I: The Continued Importance of Free Expression and Dissent

Why do we have the First Amendment? To have free expression. Why do we have free expression? Many reasons, which Thomas I. Emerson grouped into four: 1) assuring individual self-fulfillment, a cornerstone of Western philosophical thought; 2) attaining truth and knowledge through debate and a "marketplace of ideas"; 3) providing for participation in decision making by everyone; and 4) achieving an adaptable yet stable community. I believe the last one is more important than ever in the information age. The basic premise is: free expression allows for the development and sharing of new ideas - which often comes in the form of dissent - while suppression shutters those new ideas in favor of stultification and old ideas. A society needs new ideas and flexibility to adjust to changing circumstances and to achieve social progress.

Evolution theory provides a useful analogy. In nature, individual organisms, even those that live in "societies" like man does, live in a changing and unpredictable environment. Within a species or genus, individuals are different in certain traits that produce various advantages or disadvantages according to natural conditions. It is that variation that allows a species to survive and prosper - those with favorable traits survive and pass them along to the next generation. For humans in societies, the same laws should hold true. The world is changing, faster than ever, and is unpredictable. Beyond our physical differences, it is our intellectual differences that distinguish ourselves and our societies. Unlike natural traits, intellectual traits and ideas can be self-developed and expressed, so long as society tolerates them. That is why having free expression is so important: having intellectual diversity and promoting it allows society to develop new ideas and for individual members to question old ideas. This process prevents social conformity and stagnation, and allows a society to adapt to and thrive in a changing world.

This theory holds true more than ever in the 21st century. Free expression serves another role today, that of innovation. Developing new ideas and ways of communicating them to the public is as vital. We have more tools. But we still need to do it. And on the world wide web, we need to protect not only those with new ideas, but also those who receive and can benefit from the new ideas. They can share and experiment with new ideas, and challenge old ideas. What we need is a "democratic culture," which Jack Balkin describes as a place where ordinary citizens can participate in digital creativity and not just be passive observers or consumers. Our free expression culture must adapt to that end. The 19th century was about property rights; the 20th about political rights; the 21st must be about innovation.

Section II: New Threats to Free Expression and Dissent

Suppressing dissent and new ideas is not unexpected - it is human nature to do so. What has changed are the tools available and who uses them. Yesterday, it was the government and state actors who controlled the official channels of communication and often were the censors. Today, network providers are the primary censors because they control the access and flow of information upon which millions of people rely. They control the switches. Moreover, their control will persist so long customers are dependent on them to supply access to the Internet. With mass media and hyper-connectivity dependent on network providers, their powers and potential for censorship are unabated.

That does not mean the threat of government suppression is gone or diminished. Government now relies on network providers to help with censorship. Earlier this month, India approached Google, Microsoft, and Facebook to stop seditious comments about the Indian government. In the U.S., we have learned about how law enforcement and various governmental agencies are using social media and networks to collect information and curb the spread of dissenting or unapproved ideas. In fact, it is now easier for them because they are not necessarily exposed to state action and the constraints of the Constitution.

Section III: What Should Be Done

The battle over free expression in the 21st century will not be fought in the courts. It will be done through the design and technology of the Internet, and how the important stakeholders - regulators, network providers, end users - divide and allocate control over cyberspace. Free expression advocates must focus their attention on the underlying technology and design of the Internet. It is up to individual users, too, who must defend and even fight for their right to free expression against encroachment by regulators and network providers. A theory based on the importance of free expression to innovation and social change may resonate as loudly or even louder than one based on political rights or seeking truth.

I am ambivalent about the utility of a major informational law along the lines of the SOPA legislation debated in Congress recently. On one hand, such a law is necessary to protect many of our values - including free expression and commercial fairness - on the Internet. Congress is probably the actor that can best represent everyone's interests. On the other hand, the Internet as a whole does not work well with regulation and relied on individual innovation to spur its development. Furthermore, involvement of Congress increases the power of regulators and businesses who have captured regulators, at the expense of the public. Citizens feel differently about the ability of Congress to solve such large scale problems (given current poll ratings, prospects are bleak), but it's an area in need of reform. A bottom-up approach seems more feasible and effective.

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