Abundance and user control: renewing the Democratic heart of the First Amendment in the age of interactive media.

• Author: Berman, Jerry
• Position: Emerging Media Technology and the First Amendment

1. INTRODUCTION

   We stand at the cusp of the creation of a new medium. Throughout the industrialized world, the deployment of innovative new technologies--such as high-capacity computer networks, mobile wireless communications services, television systems with hundreds of channels, and increasingly accessible online services-heralds the arrival of new, interactive communications media.(1) At this formative stage in the development of these new modes of communication, it is appropriate to ask: What impact will these changes have on freedom of expression? How can these new technological possibilities be made to serve such core First Amendment values as increasing access to diverse information sources and minimizing government regulation of speech? The shape of these new media is not yet defined. Indeed, there are still choices to be made about the "architecture"--that is, the basic design and functional capabilities--of the emerging network.(2) Those choices will have a fundamental impact on the First Amendment values relating to freedom of expression. We argue that two key architectural features will best serve these values: decentralized open access, and user control over content.

   Our inquiry is guided by two of the enduring values that have informed First Amendment doctrine: maximizing access to diverse information sources and minimizing the government regulation of speech. The writings of Mill,(3) Milton,(4) and other Enlightenment thinkers taught the drafters of the First Amendment the importance of assuring a diversity of information sources for the citizenry of a democracy.(5) Political debate and public culture cannot flourish without a free, open public forum for the exchange of ideas.(6) Since the middle of this century, courts and legislatures have been forced to grapple with this issue as new media such as radio and television--as well as increasing economic concentration in the print medium--have threatened diversity.(7)

   The First Amendment also guards against government efforts to choose which information sources are appropriate and which are not appropriate for any given speaker or listener. As the Supreme Court recently noted, "At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence."(8) Though there are circumstances in which restrictions on expression are permissible, in general First Amendment values are best served when such restrictions are kept to an absolute minimum.

   How can the future interactive media best serve these values? As we demonstrate, the diversity and regulation of various media have largely been dictated by certain architectural features of those media. The architectural characteristics of new interactive media offer unique opportunities for advancing First Amendment values, as well as unique challenges to existing First Amendment doctrines. In order for interactive media to develop with the diversity-enhancing characteristics of a medium such as print--and to win strong First Amendment protections from regulation like those accorded to print--their architecture must have two key characteristics. First, the architecture must be open and decentralized, promoting a true abundance of information and communication opportunities. Second, there must be sufficient user control to enable users to choose what information they want to receive, and what they want to keep out, thus eliminating the rationale for government to step in and protect various parts of society with intrusive content regulations. Throughout this Essay, we return to the print medium as a powerful demonstration of how to achieve diversity and limit government content regulation. For it is in print that we believe there is the greatest diversity, and the least need for (and tolerance of) intrusive regulation. In early American history, the printing press and a national mail system combined with a new communications vehicle, the newspaper, and a new legal regime, the First Amendment, to enhance the diversity of information sources available throughout the country. At the close of the eighteenth century, the diversity, flexibility, and accessibility of this new communications medium was important to the health and growth of American democracy. Now, at the close of the twentieth century, we should seek a similarly potent combination of technology and public policy that will enable interactive media to fulfill their democratic potential.

2. ABUNDANCE: ARCHITECTURAL CHARACTERISTICS OF INTERACTIVE NETWORKS THAT PROMOTE DIVERSITY

   To reach a First Amendment regime in new media that truly promotes diversity, there must be enough capacity to carry a genuine abundance of information. In the print medium there has been no limit to the number of newspapers, books, magazines, pamphlets, broadsides, and other materials that can circulate among the public. As many commentators have chronicled, the arrival of radio and broadcast television marked the first instance in the history of the First Amendment when courts found a compelling government interest in regulating access to a medium to ensure that its scarce resources would be shared among the communicating public in a fair and orderly manner.(9) If a new medium were to provide an abundance of communication opportunities, and if no single entity (public or private) could control the communications access, then the means of achieving diversity of sources would be radically different: The need for intrusive government regulation would be dramatically reduced.

   The limited communications opportunities available through today's mass media result from two fundamental characteristics. First, given a finite number of channels (even if the number is 500 or 1000), some entity will always have to make choices about who is allowed to use a given channel. The economic value of a channel to a network operator, such as a cable company or over-the-air broadcaster, is likely to increase under strict access conditions. Thus, independent communicators in a medium divided up into a finite number of channels will always face structural barriers to entry as speakers; diversity is not well served in such an environment. Second, the "endpoints" through which users and content providers interact with the network will restrict diversity of sources if those endpoints are not sufficiently open and accessible to both information providers and information users.

   The different characteristics of various media are all a function of the underlying architecture of the network used to transport the communications in question. The scarcity that characterizes today's mass media will be fully replaced by abundance only when a network with the following characteristics is in place: (1) a decentralized, open-access architecture; and (2) open endpoints, providing easy access for all potential content providers and content users.

   1. The Decentralized Open-Access Model vs. The One-Way Channel Model

      Today all mass media are based on a "channelized" architecture--that is, an architecture with a fixed number of available channels. There may be only a few channels, as in broadcast television, or there may be hundreds of channels, as in new systems planned by cable television companies. The channel model poses two inherent obstacles to achieving First Amendment diversity goals: scarcity of communications pathways and the presence of information gatekeepers.

      As long as there is a scarcity of channels, it is likely that some viewpoints will not be heard. An increase in the number of channels may bring a partial increase in the diversity of sources available to the public; as a practical matter, however, channels will be used up by the programming that brings the channel operator the most revenue. For example, even a 500-channel cable television system is unlikely to offer 500 different programs to viewers. More likely, some large number of channels will be used for staggered showings of the top ten or twenty movies.(10) Under this model, even a large number of channels will be used up relatively quickly, and a diversity problem will remain.

      The channel model poses no threat to diversity only if every potential programmer has a channel available to use. Inasmuch as this scenario would require a very large number of channels, many of which would often be idle, it is difficult to imagine the market producing such a network. It is even more unlikely given that some degree of channel scarcity drives up the price that profit-maximizing network operators can charge for any channel slot.

      The scarcity of channels and the centralized nature of a channelized distribution network present another problem: Some entity, generally the network owner and operator, must decide which of the large number of potential programs will be given access to the smaller number of channels available.(11) This gatekeeper role is also required because the network architecture of both cable and broadcast media demands that all programming be collected at a central point for redistribution. This requirement presents a significant burden for the independent content creator, who must deliver the program content to the central facility. In addition, smaller, independent programmers are forced to incur significant transaction costs to negotiate carriage agreements with the network operator.

      The decentralized, open-access(12) model presents a sharp contrast to the centralized, one-way channel model that typifies most mass media today.(13) Properly implemented, the open-access model holds the promise of overcoming the diversity problems created by the centralized channel model. The open-access model would permit a level of diversity only possible today in the print medium. Moreover, this model's potential to lower publishing costs and increase connectivity promises a diversity of sources undreamed of in the era of print. The...