'Old School/New School Speech Regulation' by Jack M. Balkin in
Harvard Law Review (Forthcoming)
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In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.
“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.
Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.
Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.
Balkin concludes -
(1) Old school goals: chilling effects and ex post punishment
The goals and practices of old school speech regulation have been shaped by the possibilities of enforcement in the pre-digital era or using pre-digital technologies. Old school regulation tries to control bodies, spaces, and pre-digital technologies of mass distribution. Before publication moved to digital networks, it was relatively difficult for the state to block prohibited activity before it happened; therefore much old school speech regulation is ex post—criminal prosecutions, civil fines, seizure and destruction of books and other materials. For example, New York Times v. Sullivan involved defamation law, which is ex post regulation.
In the old school model, ex ante prevention of speech is certainly not impossible, but the opportunities are more circumscribed than in new school speech regulation. These are, roughly speaking, situations in which effective prior restraints are possible in a pre-digital world. First, the state can block disfavored activities before they happen when the state can plausibly and effectively impose a licensing scheme on publishing or broadcasting technologies, or control access to government property. Second, the state can prevent disfavored speech when it is able to learn that speech is about to occur and it can act in time to stop it through a judicial injunction. Pentagon Papers involved the latter situation.
Beyond these two situations, the state usually cannot stop speech before it occurs, and therefore old school speech regulation often relies on deterrence. The state hopes to prevent undesirable expression by giving people reason to fear the consequences of acting. To this end, the state may pass regulations that are overbroad and vague in order to discourage expressive conduct that the state wishes to prevent. Although the state may not want to capture protected expression, it wants to make sure that all unprotected activity is deterred. From the perspective of regulation (as opposed to civil liberties protection), uncertainty about whether one’s conduct is illegal may be a virtue, not a vice.
Modern first amendment doctrine’s focus on chilling effects is simply the flip side of what old school speech regulation seeks to achieve. Old school speech regulation wants to induce a chilling effect on speech that the state hopes to control. It is also helpful if the state’s threats of retribution or punishment for disfavored speech are either highly visible or widely recognized by the public. Similarly, it may also be helpful if surveillance of expressive activity is public or the possibility of surveillance is highly salient to the public. Even if the public never sees a policeman taking names at a demonstration or sees a person arrested for illegal speech, it is enough that the citizens know that such practices are real. xxxxx The point of old school speech regulation is to dissuade and discourage, and thus to produce fear, apprehension, pessimism or docility.
(2) New school goals: pervasiveness, low salience, and ex ante prevention— from chilling effects to chilling out
In a digital world, the state’s practices and techniques have a different emphasis. New school speech regulation offers additional possibilities—and more effective possibilities—for ex ante prevention than old school speech regulation did. Because the infrastructure of free expression merges with the technologies of regulation and surveillance, the state is better able to discover when disfavored speech is occurring. It may also be easier to block speech, either directly or by inducing private parties to engage in surveillance and collateral censorship. The state can give incentives for private parties to search for disfavored content, slow it down, filter it, or block it entirely.
To be sure, old school speech regulation does not go away. Even in new school speech regulation, the government may want to chill activity to protect property rights and surveillance capability. The boundaries of copyright law and the defense of fair use are often quite vague, and hence their combination may chill protected expression. As noted previously, gag orders that accompany national security letters are designed to produce an in terrorem effect so that no business will attempt disclosure.
Nevertheless, because digital networks make both surveillance and prevention easier, new school speech regulation makes greater use of ex ante strategies, including blocking and filtering. Thus, roughly speaking, while old school speech regulation emphasizes deterrence and chilling effects, new school speech regulation emphasizes prevention and low salience (or invisibility).
As surveillance and blocking of harmful content become increasingly effective and pervasive, the old school approach of generating chilling effects becomes more complicated. Strategies of governance change as we move from a world in which only (or primarily) suspicious people are targeted for surveillance to a world in which government and private business collect data on as many people as possible to facilitate analysis, prevention, and counter-measures.
The state and private infrastructure owners may prefer that surveillance be largely invisible to the general public. The scope and extent of data collection and analysis should be secret or at the very least of very low salience in order to make people feel that, although they are secure, they are not constantly being observed. When surveillance is not salient to people, they may be more willing to reveal information that the government or owners of private infrastructure can then collect and analyze. That is especially important because data collected about perfectly innocent people may help the state identify, understand, apprehend, or block the actions of those the state suspects. To the extent that the public is aware of pervasive surveillance, both the government and private business may want the public not to see it as a threat that is designed to induce obedience and docility; instead, government and private business may want to depict data collection operations as normal, unobtrusive, and inoffensive. In the National Surveillance State, the experience of surveillance, once reserved for “suspicious” persons, is democratized, universalized, and made banal. In a world of pervasive surveillance, the state and owners of private infrastructure may not want to achieve chilling effects with respect to most people; instead, they may want most people just to chill out.
In sum, the goal of new school speech regulation is normalcy and invisibility—or at least low salience—employing actions that prevent rather than merely punish, and that can occur automatically and at a distance. The irony of the democratization of speech in the digital age is precisely that it has led to these practices of control and surveillance. To vary another famous saying, on the Internet, nobody knows you are a dog—except for the government and the owners of private infrastructure.
New York Times v. Sullivan and Pentagon Papers are twentieth-century responses to twentieth-century techniques of speech regulation. Yet techniques of speech regulation have not stood still; nor have the technologies that facilitate them. Just as defenders of free expression during the post-New Deal period had to devise ways of constructing constitutional guarantees that would respond to old school techniques, it falls to current generations to reimagine the free speech principle in a world of new-school speech regulation. The commitment to freedom of speech may be enduring, but the techniques of speech regulation are protean and ever-changing. So too must be our responses.
