I thought
I'd make things more boring, not exactly by agreeing with Ira
Magaziner. When he finished, I thought that what I would end
up saying was something not that different, although maybe a
little bit louder, and less articulate, with a different emphasis,
and less informed. Then, when I listened to Ben talk, I knew
I would be less articulate. Same basic principles, although
somehow I didn't draw the same conclusions from them.
I come at
this issue from two angles. First of all, I come to it as a
political theorist, who's written on issues of democracy and
freedom of expression, and in writing about those issues, tried
to combine egalitarian concerns about fair access with strongly
libertarian hostility to content regulation. Combining those
commitments strikes me as the problem. I also come at these
issues as a Web-provider. For three years, the full text of
all issues of "Boston Review" has been on the Web.
Apart from being a top 5%, we are ranked #7 among magazines
by "Lycos"; we're tied with "Slate" and
"Salon." We've got about l00,000 Web readers a year,
which is about 20 times our paper readership.
So what
I'd like to do in responding to Ira's talk is to try to put
these--I'm mixing metaphors here--to try to put these two hats
together. I've tried to combine these two perspectives on these
issues. In general terms--here's where I think I agree with
Ben--I start with a different question. So Ira's question was,
"how can we combine the traditional libertarian culture
of the Internet with the commercial and governmental culture?"
My question is, "how can we preserve democratic, political
culture in this environment? " I think that is a different
question from the libertarian-commercial-governmental question.
Let me start
with three stories that come out of the experience of the "Boston
Review" on the Web. Then, I'll try to connect those stories
with some of the broader themes about first principles as they
pertain to the Web and democracy.
The first
story--file this under the issue of "Access." I said
that we've got about l00,000 readers a year and #7 in "Lycos"
magazine rankings. We never spent a dime to get that many paper
readers. It would have cost us many hundreds of thousands of
dollars to get that many paper readers. If we did well, it probably
would cost a couple of million bucks. We didn't spend a dime.
It was donated labor, donated computers and donated Ethernet
connections. The site was originally set up by a very brilliant
MIT graduate student, who had also been a brilliant MIT undergraduate
before that, who said about three years ago, "Why don't
we just put this stuff up on the Web and see what happens?"
And he set up the Web-site. Then it was administered by another
terrific MIT graduate student. That's the access-story. It's
been a terrific success, and we didn't spend a dime on it.
The second
story--file this under the "Content Category." For
the past three years, the biggest Web item that gets the most
readers is an article that we published by a writer, named Carrie
Freed. It's an article called "Straight or Narrow."
It's about lesbian fiction, and it gets about l0,000 readers
a year. Well, readers in a special technical sense. I mean,
people look at it; I don't know how many people read it. Of
course, I don't know how many people read magazines that they
buy either. We look at the referring URLs. This is an article
that people come to from gay and lesbian sites, because it's
a highly regarded article on lesbian fiction. It's also an article
that people come to through "AltaVista" searches where
they combine the predictable words and they come to Carrie Freed's
article. But it's a very big item, and a lot of the people who
come to it come through word-searches.
Another
content story. I occasionally do searches of "Boston Review"
and some particular author on the web. Recently, I looked for
"Boston Review" and Susan Okum, who had written a
very interesting article for us on issues about feminism and
multiculturalism. I found that a couple of paragraphs from Susan's
article were located on a David Duke, White Nationalist Web-site,
because they really liked the idea that a white feminist was
attacking, as they saw it, multiculturalism. They thought that
was really terrific. Then I actually found it on several connected
sites. There are some Canadian sites as well.
Now we've
got an access-story; very cheap--it can't get cheaper to get
a lot of readers. The two content stories; big readership and
an article about lesbian fiction, often accessed through word-searches,
and Susan Okum's article on feminism and multiculturalism available
on some David Duke-style White Nationalist Web-sites.
The next
story contrasts two book deals. In l996 the "Review"
published a book through Beacon Press called, For Love of Country,
and when we published the book with Beacon, Beacon insisted,
indeed, it was part of the contract that all of the articles
that had originally been in the magazine had to be removed from
the Web-site. And they were really dog-on-a-bone about making
sure that they were removed from the Web-site because this is
when book publishers thought that the Web was going to kill
publishing. Nineteen-ninety-nine, next year, we're publishing
four books with Beacon Press and one book with Princeton University
Press, and they're all welcoming our keeping all the texts of
all the articles up on the Web-site because they now understand
that the Web is like going into a bookstore and browsing. It's
not a killer for booksales. I mean, it may be when people all
have cable connections and 32-page per minute printers at home,
but, for now, anyway there's been a change of attitude on that.
OK, those
are the stories. File the last one under "Cautionary Tales."
Now let
me make some remarks as a political theorist, and I'll be referring
back to these stories as I go. Let me proceed, as Ira Magaziner
did, and state some principles that come out of reflection on
the nature of this medium and this commitment to preserving
a democratic political culture.
The first
principle, which the Clinton Administration has come around
to this view, is don't restrict content; don't restrict topics;
don't restrict viewpoints. And you might ask about this commitment.
Why not restrict content? Isn't some speech, including at least
some of the speech on the Web, harmful, offensive, injurious,
disgusting? Well, there are two reasons for not restricting
speech. First of all--though it's true that lots of speech is
injurious and harmful--open expression is essential to democracy.
And secondly, as Brandeis pointed out a long time ago, if you're
really concerned about the harms that result from speech, there
are two ways that you can address those harms. One is that you
can regulate its content; and the other is that you can promote
more speech. So Brandeis said, the best way to combat the harms
of speech is with more speech. So that's the presumptive way
to combat harms. Brandeis' point is a very important point.
If you're concerned about combating the harms of speech, you
need more speech. But, then, we need to draw a distinction here--a
distinction between restricting speech on grounds of its content,
shutting it down, and fostering speech on important issues because
of its essential role in democracy. So the first principle is
that if you condemn content regulation because of Brandeis'
principle that the best way of combating the harms of speech
is with more speech, then you need to ensure that there is more
speech out there to combat those harms. Now there's a big question
about how to do that--I'll come back to that later on. The key
point here is that you need to ensure that there is speech to
combat the harms of speech, and there's no guarantee that the
market provides that, including this particular market.
Related
to this principle about not restricting content--it's a subordinate
principle--is, in particular, don't restrict speech for adults
in order to protect children unless the restriction is unavoidable.
Why not? Well, first of all--a now-familiar refrain--there's
the substantial cost of speech restrictions to adults, among
others, the cost of restricting democracy. Moreover, I think
that lots of adult squeamishness masks as solicitude for children.
It's fine to say you're really trying to protect children. I
suspect that a lot of that protecting of children really, as
I say, is a mask for squeamishness on the part of adults. I
mean, I have an eight-year old and a twelve-year old and, very
frankly, the hardest problem I have had in the last year is
not with my kids looking at bestiality-sites on the Web, it's
with trying to explain what presidential knee-pads are. It's
true.
Another
related principle is "don't regulate content issue,"
and, in particular, don't restrict content for adults in order
to protect children unless it's unavoidable is that we ought
to treat these principles as guiding both public and private
decision-makers. Call this Mill's principle and permit me--Ben,
you're not going to have to look this one up; I'll read from
Mills' "On Liberty." It's a very important passage.
Mill says:
"Like
other tyrannies, the tyranny of the majority was, at first,
and is still vulgarly held in dread, chiefly as operating through
the acts of public authorities. But reflecting persons perceived
that when society, itself, is the tyrant, society collectively,
over the separate individuals who compose it, its means of tyrannizing
are not restricted to the acts which it may do by the hands
of its political functionaries. Society can and does execute
its own mandates. And if it is used wrong, mandates instead
of right, or any mandates at all on things with which it ought
not to meddle, it practices a social tyranny more formidable
than many kinds of political oppression since, though not usually
upheld by such extreme penalties, it leaves fewer means of escape,
penetrating much more deeply into the details of life and enslaving
the soul itself. Protection, therefore, against the tyranny
of the magistrate is not enough. There needs protection also
against the tyranny of the prevailing opinion and feeling, against
the tendency of society to impose by means other than civil
penalties its own ideas and practices as rules of conduct on
those who dissent from them to fetter the development and, if
possible, prevent the formation of any individuality not in
harmony with its ways and compel all characters to fashion themselves
upon the model of its own. There is a limit to the legitimate
interference of collective opinion with individual independence
and to find that limit and maintain it against encroachment
is as indispensable to a good condition of human affairs as
protection against political despotism."
That's the
best criticism I've read of the idea that the best way to substitute
for the Communication Decency Act is with a bunch of software
filters produced by private producers. We shouldn't condemn
content regulation by government, and then welcome all the proliferating
schemes of private regulation; proliferating schemes like X-Stop,
which used to be used until the court stepped in by a Virginia
library and that blocked access to the Quakers, the American
Association of University Women, and Zero Population Growth,
and I assume, to come back to my story, it probably blocked
access to the "Boston Review" because of the presence
of the article by Carrie Freed, "Lesbian Fiction."
Also, if not X-Stop, then filters that are concerned with hate
speech probably blocked access to the hate sites that included
Susan Okum's article, denying people, I think, what is really
a profound insight about the article and about those organizations.
So if speech is fundamental to a democracy, then private regulation
is not a cause for enthusiasm.
That's one
broad set of principles.
The second
broad set of principles concerns goes under "Ensuring Fair
Access." Citizens, as Ben is suggesting and is implicit
in his remarks, have two roles in a democracy. They have the
role of judges, audience who need to be informed and, also,
the role of agents, active participants in shaping and discussing
policy. We tend to focus on the audience role, as now, but when
we think about enabling access to the public sphere, we should
also think about the agent-role. This was, I think, a fundamental
point in Mitch Kapor's old article on the Jeffersonian information
highway in which the emphasis was not on people being able to
download, but on people being able to upload. But, now, go back
to the point I made about the "Boston Review." For
zero-cost, we got very high access. So you might say, "Why
worry?" Doesn't the Web take care of the old radio problem--you
ought to get your message out by a radio station. Well, you
can't do that, but if you want to get your message out, set
up a Web-site. There is a point here--and I think Ben is underestimating
the point--the point is that the Web does create very great
opportunities, something that Doug Schuler is also going to
talk about tomorrow. But "Boston Review" is a very
special case because our access to the Web, though costless
for us, was entirely mediated by our connection with MIT. That's
where the labor came from; that's where the technical expertise
came from; that's where the computers came from; that's where
the Ethernet connections came from. The Web-site is "www-polisci.mit.edu/bostonreview/".
It wasn't just material resources that we got, but a social
network of people that were so able to support our activities.
So if you
want to foster the citizen-role, it's important not to just
give people access in the form of literacy--they can download
stuff--it's also important to encourage access by providing
resources to people who lack such. That means equipment, training
and support staffs, for, for example, the kind of community
networks that Doug is involved in. You might also require--you
might--that is, our government might also, for example, require
sites to carry links to other sites that have less traffic;
it might provide a non-commercial search engine with quick updating
for new sites that aren't already hooked into the current linkage
networks. Indeed, if you do that, and here I come back to an
earlier point, if you provide fair access, not just in the form
of being able to download, but in the form of being able to
put content up--Kapor's whole point. That's the best way to
deal with the promoting more speech to combat the harms of speech.
You give fair access to people and you don't have to worry about
the diversity of ideas on the 'Net. People will provide them
for themselves. The government doesn't have to worry about making
sure that the full spectrum of ideas is covered. All the government
has to do is to ensure that people have fair access. Then you
can take care of Brandeis' point--combating the harms of speech
with more speech. Don't regulate content. Ensure fair access.
Finally,
and here I end up in exactly the same place that Ira does, which
is the cautionary note that whatever we do, we be careful. It's
a sort of vacuous recommendation, because we don't know what
it is to be careful. But, anyway, there it is. We ought to be
careful, because we don't understand this medium particularly
well. Restrictive regulations are likely, at best, to be irrelevant
very quickly. Here I refer you back to that example that I mentioned
earlier about what happened with our publishing deals with Beacon
Press. In l996 Beacon Press thought that they understood the
Web. They got rid of all of the Web-site material that ended
up in a book that probably would have sold a lot more if they
had kept the content up. MIT Press, for example, put the text
of four books on the Web and all of those books vastly exceeded
expectations in sales. So there's a synergy here which was completely
unanticipated, I think, three years ago.
So promote
fair access, yes. Don't regulate content. Make sure that the
bad messages are answered with other messages, not by shutting
them down. But whatever we do, be careful and attentive to the
fact that this medium is changing incredibly fast and that restrictive
regulations are likely to be, at best, irrelevant very quickly
and, at worst, extremely damaging. (APPLAUSE)
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