Democracy and Cyberspace: Response to Ira Magaziner
by Joshua Cohen
3,464 words
posted: september 3, 1998
[The text below is a complete transcript of Cohen's remarks following Ira Magaziner's keynote presentation at the conference on Democracy and Digital Mediaheld at MIT on May 8-9, 1998.]
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.
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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.
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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.
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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."
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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.
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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.
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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.
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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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