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.

The past two hundred years have not been "about" innovation? Surely there is a way to make your point without bombast?

Section II: New Threats to Free Expression and Dissent

Suppressing dissent and new ideas is not unexpected - it is human nature to do so.

Do you need to make that assertion, which is not self-evident? Do you really need an essentialist view of the abuse of power to make the rest of your argument?

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.

To some extent. To some extent, state actors do, and to a large and variable extent, neither of them does. Freedom Box could be defined as an attempt to expand very significantly the quantity and power of democratically-distributed switching capacity. Once again, you seem to be expressing a proposition that isn't necessarily right, that by asserting you acquire a responsibility to prove, and which you probably don't need anyway.

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.

No. See above.

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.

Not sedition, just unfavorable comment on Mrs. Gandhi and her family. And not just "approached." Now there is sweeping litigation brought by government pawns.

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.

Are you saying there will be no efforts to litigate issues concerned with how the stakeholders "divide and allocate control over cyberspace"? Doesn't that seem superficially improbable?

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.

"May"? This comes down after all to "maybe this is important and maybe it isn't because maybe people will be more engaged with this meme over here than that closely related meme over there?" If that's what this essay boils down to, the reader is likely to be both disappointed and somewhat resentful.

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.

Why?

Congress is probably the actor that can best represent everyone's interests.

Really? At last count, 91% of Americans didn't think so, and the approval rating of Congress is 9%. Should we ignore that, in light of your assertion to the contrary, without any facts?

On the other hand, the Internet as a whole does not work well with regulation and relied on individual innovation to spur its development.

No, the Internet is not a world of individualism, it's a world of consensus and trust. Its technical standards are developed not by individual effort but by "requests for consensus." Its operational procedures depend on good faith and mutual cooperation. Your sentence implies a false dichotomy and is misleading.

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.

But you haven't actually described one. In fact, whatever the essay's point really was is still obscure; up to this point, we've been given the preface to some actual idea that never quite arrived. The most obvious route to the improvement of the essay is to start from the actual idea and build an outline around it that reduces what's here by 75% or so, and uses these points as introductory only to the primary theme, whatever "bottom-up" approach it was, or will be when we see it.