Monday, September 14, 2009 - The Progress & Freedom Foundation Blog

Crovitz on the Regulation of Free Speech in an Age of Abundance

I cannot in strong enough terms recommend that everyone read Gordon Crovitz's latest Wall Street Journal column, "Free Speech, Now that Speech is Free." It perfectly encapsulates everything we stand for here and makes the case that I have made again and again: Speech regulation -- of all flavors -- makes less and less sense in a world of information abundance and user empowerment, and it is a complete affront to our First Amendment rights. As Crovitz argues:

The Constitution was drafted at a time when there were few media outlets, and few people could be heard. Since then, technology has made it possible for everyone to express their views. The cost of expressing opinions continues to fall. Now that speech is no longer expensive, it's time to return to the Founders' intention that speech be free and that Congress not abridge anyone's right to speak.

Amen brother! In his essay today, Crovitz specifically takes on America's increasingly insane campaign finance laws, which make a mockery of the First Amendment. In the wake of last week's Supreme Court arguments in the Citizens United case, Crovitz points out the insulting stupidity and sheer futility of these analog era, scarcity-oriented laws:

In the era of YouTube and Facebook, the notion that anyone or any institution can dominate political debate is quaint at best. After last week's Supreme Court argument, key parts of McCain-Feingold seem likely to be overturned. The justices are legal experts, not technologists, but in protecting constitutional rights, they know they are operating in a very different information environment than existed earlier in the decade.

Lively political debate is supposed to benefit everyone--with the occasional exception of incumbent officeholders who are not re-elected. But McCain-Feingold banned the broadcast or transmission by cable or satellite of "electioneering communications" paid for by corporations in the 30 days before a presidential primary or 60 days before the general election. This always raised a First Amendment issue. The issue now goes deeper: How can any regulation based on an assumption of information scarcity be justified in an era of information abundance?

Absolutely, 100% right. As I pointed out in my old City Journal essay, "The Media Cornucopia":
Throughout most of history, humans lived in a state of extreme information poverty. News traveled slowly, field to field, village to village. Even with the printing press's advent, information spread at a snail's pace. Few knew how to find printed materials, assuming that they even knew how to read. Today, by contrast, we live in a world of unprecedented media abundance that once would have been the stuff of science-fiction novels. We can increasingly obtain and consume whatever media we want, wherever and whenever we want: television, radio, newspapers, magazines, and the bewildering variety of material available on the Internet.

And yet, despite these wonderful developments, we still have Washington policymakers and regulators conditioning speech rights on the supposed "scarcity" of viewpoints or soapboxes to stand on. What utter rubbish. Of course, that hasn't stopped many regulatory activist groups from continuing to use such logic in favor of expanded media regulation.

Regardless, Crovitz suggests that, with any luck, we could get a replay of what happened to the Fairness Doctrine:

The likely demise of McCain-Feingold echoes the fate of the Fairness Doctrine. The Federal Communications Commission in 1949 required holders of broadcast licenses to present all sides of controversial topics. There were few broadcast outlets and at least arguably a risk of one-sided debates. The rule was abolished in 1987 as channels grew. With hundreds of cable channels and endless uploads of videos to the Web, it would be impossible to enforce "fairness" even if bureaucrats could track how much of which views were being expressed.

We can only hope that the course of human events follows that same trajectory and policymakers come around to once again realizing the error of their past ways.

posted by Adam Thierer @ 2:04 PM | Free Speech