Cheap speech and what it will do.

• Author: Volokh, Eugene
• Position: Emerging Media Technology and the First Amendment

CONTENTS

1. CHEAP SPEECH

   A. Music and the Electronic Music Databases

   1. The New System

      1. What It Will Look Like

      2. Why It Will Look Like This

   2. How the New System Will Change What Is Available

   3. Dealing with Information Overload

   4. Will Production Companies Go Along? B. Books, Magazines, and Newspapers

   1. Introduction

   2. Short Opinion Articles and Home Printers

   3. Cbooks and Books, Magazines, and Newspapers

   4. How the New Media Will Change What Is Available

      1. More Diversity

      2. Custom-Tailored Magazines and Newspapers

   5. Dealing with Information Overload C. Video (TV and Movies) II. SOCIAL CONSEQUENCES

      A. Democratization and Diversification

      B. Shift of Control from the Intermediaries and What It Will Mean

   1. Shift of Control to Listeners

   2. Shift of Control to Speakers: The Decline of Private Speech

      Regulations C. Poor Consumers D. What Will Happen to Advertising (Both Commercial and Political) III. A FEW WORDS ABOUT THE New MEDIA AND THE FIRST AMENDMENT

      A. Existing Flashpoints

      B. A Rosy Future

      C. A Possible Dark Side

      It's easier for the rich to speak than it is for the poor. It's also easier to speak if what you're saying, or singing or drawing, has mass appeal. Publishers will only invest in a product if the expected returns exceed the expected costs. If your work lacks a wide audience, publishers may be hard to find; and even if you can get a small publisher to back you, distributors may be unwilling to let you use their scarce shelf space. Getting access to nationwide radio and TV is harder still. People with unorthodox tastes lose out, and even those in the mainstream suffer when potentially interesting work isn't produced because of (rational) predictions that it won't be a hit.

      Many have pointed to these problems--the bias in favor of speech of the rich, or of speech endorsed by the rich, and the relative blandness of much mass media.(1) The perfect "marketplace of ideas" is one where all ideas, not just the popular or well-funded ones, are accessible to all. To the extent this ideal isn't achieved, the promise of the First Amendment is only imperfectly realized. And some suggest that because current First Amendment doctrine is premised on an open-market metaphor that isn't valid, the law should be adapted to this brutal reality.(2)

      My thesis is that (1) these two problems are directly linked to the fact that speaking today is expensive; (2) new information technologies, especially the "information superhighway"(3) or "infobahn,"(4) will dramatically reduce the costs of distributing speech; and, therefore, (3) the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. Cheap speech will mean that far more speakers--rich and poor, popular and not, banal and avant garde--will be able to make their work available to all.

      To support this view, I describe in Part I what I think will be the likely information future and the market forces that will make it inevitable. I focus on how the infobahn will change the existing forms of communication: music, books, newspapers, magazines, and television. (Though the new, truly interactive media--electronic bulletin boards, Internet mailing lists, and Internet newsgroups--are a very intriguing topic, lack of space keeps me from discussing them.(5))

      In Part II, I suggest some social consequences of these technological changes, each of which might be relevant to thinking about the First Amendment:

      (1) Democratization and Diversification: Many more speakers will be able to make their speech widely available, including many who can't afford to do so today; and listeners will have much more choice than they have now.

      (2) The Shift of Power Away from Intermediaries: Control over what is said and heard will shift from intermediaries--publishers, bookstore and music store owners, and so on--to speakers and listeners themselves. Private parties will thus find it harder to use their market power to stifle speech. Listeners will find it easier to become well informed about the issues in which they're interested. On the other hand, it will be easier for people to choose only the information they know they want, and to ignore other topics and other views. And the extra diversity of speech may reduce social and cultural cohesion.

      (3) Mixed Effects on Poor Listeners: Poor listeners will be able to enjoy many of the benefits of the new order, but to some extent may be shut out from other benefits.

      (4) Substantial Changes in Advertising in the Media: There'll be more no-advertising and low-advertising media; advertising will be better targeted to people; newspapers will lose a lot of classified advertising income; and political advertisements might change significantly.

      Finally, in Part III I briefly explore some of the possible First Amendment implications of these changes. My ultimate conclusion is that the First Amendment of today will not only work well with the new information order--it will work better than it ever has before. But I also discuss ways in which the new technologies might undercut some of the assumptions that underlie the existing doctrine, and might lead to public pressure for legal changes.

1. CHEAP SPEECH

   A. Music and the Electronic Music Databases

   1. The New System

      1. What It Will Look Like

         I want to start by discussing how the new technologies will change popular music. These changes may be less politically momentous than the similar changes that I think will happen in print and video. But the music industry will probably be the one that changes most quickly; and in any case, many of the things I say in this Section--about cost savings, increased choice, information overload, and so on--will apply equally well to the others.

         The reasons for the changes will be very simple: There's lots of money in them. The existing music distribution system is inefficient, both for consumers and for musicians. For consumers, in particular, it has three problems:

         Cost: Music costs more than it could. Consumers must pay about $8 to $15 for a new album, though musicians generally see less than ten percent of this in royalties.(6)

         Choice: Consumers get a smaller selection than they could--many titles, especially ones that are relatively old or that appeal to fairly small markets, aren't available in most places.

         Convenience: To buy music, a consumer has to take the time and trouble to go to the store.

         And these problems translate into problems for musicians. High cost, low availability, and the inconvenience of buying lead to fewer sales.(7)

         These inefficiencies aren't the result of some sinister plot or even of market irrationality. They are an inevitable consequence of the existing distribution system. People today must buy music on some tangible medium, such as tape or CD. This means they generally have to go to the music store (inconvenient), which has limited shelf space (lowering the choice). And the tangible medium has to be created, imprinted, distributed, and sold (costly).

         The infobahn, once it brings high-speed two-way communications to private homes, is a far superior way of delivering music to the consumer. It will work something like this:

         (1) Using your computer--or perhaps your TV set, with a

         keyboard, a touch screen, a mouse, or even voice

         activation--you access an electronic music database. This

         database (actually, there'll probably be several competing

         databases) will contain virtually all the music that's available

         in electronic form.

         (2) You choose the music you want, by album name, by song

         title, by artist, by composer or songwriter, or by genre. You

         might even ask the computer for suggestions, based on the

         artists or albums you tell it you like. (The suggestions will be

         derived from judgments entered into the computer by

         reviewers.) You can also browse in some way, perhaps

         looking only at music of a particular kind, or music that has

         gotten good reviews. You can then play the music, to make

         sure you really want to buy it.(8)

         (3) Once you decide you like it, you download the album to a

         digital recorder connected to your computer. Your bank

         account gets debited automatically.

         This would mean:

         Cost: Once the music is recorded--which even now can cost fairly little(9)--the only significant other expenses will be advertising costs, royalties, the cost of electronic distribution, and the cost of the recording medium (which will be supplied by the customer). There'll be no need to spend money to create tangible recordings, ship them, and sell them. Assuming cheap electronic transmission (an assumption I'll try to support shortly), a CD-quality album may well cost as little as $3 to $5--a $1 royalty,(10) plus amortization of the recording costs and advertising costs, plus the $1 or $2 that the customer will have to pay for the recording medium. An artist who's willing to pocket less money to get more customers might be able to charge $3 or less.

         Choice: You'll have close to the whole music library of the world at your disposal. Copyright owners will be able to sell to any infobahn--connected consumers, not just to the ones who have access to a store that's willing to stock the work. Because there'll be no shelf-space limitation--computer storage is cheap and getting cheaper--it won't matter how esoteric your tastes are; there'll be room for nearly everything.(11)

         Convenience: You'll no longer have to drive to the music store or wait in line. You'll also be able to select what you want more conveniently, because you'll easily be able to pre-listen to what you're buying,(12) and because you'll have readily available reviews. The copyright owners will benefit from this system too, because whenever consumers read a good review or like a song they hear on the radio, they'll be able to buy the music instantly, or at most have to wait until they get home.

      2. Why It Will Look Like This

         Music Database Operators: There's a lot of money to be made here. In the United States alone, there were over 475...