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79 N.Y.U. L. Rev. 1 (2004)
Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society

handle is hein.journals/nylr79 and id is 15 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 79 APRIL 2004 NUMBER 1 COMMENTARIES DIGITAL SPEECH AND DEMOCRATIC CULTURE: A THEORY OF FREEDOM OF EXPRESSION FOR THE INFORMATION SOCIETY JACK M. BALKIN* In this essay, Professor Balkin argues that digital technologies alter the social con- ditions of speech and therefore should change the focus of free speech theory, from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation, to a larger concern with protecting and promoting a demo- cratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning-making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self- governance; it concerns each individual's ability to participate in the production and distribution of culture. Balkin argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to down- play the importance of nonpolitical expression, popular culture, and individual lib- erty. The limitations of this approach have become increasingly apparent in the age of the Internet. By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and extend their intellectual property rights. The digital age greatly expands the possibilities for individual par- ticipation in the growth and spread of culture, and thus greatly expands the pos- * Copyright © 2004 by Jack M. Balkin. Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My thanks to Bruce Ackerman, Yochai Benkler, Owen Fiss, Eddan Katz, Nimrod Kozlovski, Orly Lobel, Guy Pessach, Robert Post, Reva Siegel, Gunther Teubner, Rebecca Tushnet, Tal Zarsky, and Jonathan Zittrain for their comments on previous drafts. Imaged with Permission of N.Y.U. Law Review

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