This essay was originally published as Chapter 11 of Andrew Shapiro's 1999 book The Control Revolution, where the author analyses wide-ranging societal changes mediated by the internet, focusing on issues of who is in control of information, experience and resources. It has been very slightly edited for inclusion in Mots Pluriels. Full publication details can be found at the end of this article.

Too much personalization of experience will deprive us of a broad-minded worldview and weaken social and political bonds. It also threatens to undermine the freedom of speech. This form of oversteer may be less obvious than some others because the control revolution appears to be a boon to free expression. Using a computer and modem, a speaker can make her views known to the world quickly and inexpensively. From the Radio B92 activists to the netizens who took on Time magazine's cyberporn story, it can be seen that the interactivity of the Net allows individuals to evade censorship and correct fabrications. It all seems like a free speech bonanza - fulfilling both the individual's need for uninhibited self-expression and society's need for robust public debate on matters of pressing importance. Yet, in an environment of nearly absolute individual control over experience, there are ways in which speech may not be free at all.

Consider the effect of the control revolution on a hypothetical speaker whom we'll call Paine. Paine is destitute and his message is unpopular, but he is determined to reach the largest possible audience. In a pre-cyber world, what does Paine do? He goes to places where people gather on a regular basis - urban sidewalks and street corners, marketplaces and town squares - and proceeds to shout slogans, wave signs and hand out leaflets.

If Paine lived in a totalitarian state, bureaucrats and constables would probably use threats, imprisonment, and violence to cow him into silence. But Paine is fortunate. He lives in a constitutional democracy where the state cannot suppress speech with which it disagrees. Indeed, the classic free speech guarantees outlined by the U.S. Supreme Court over the course of the twentieth century have been secured in cases dealing with weak and unpopular figures like Paine - labor picketers, communists, Jehovah's Witnesses, civil rights protesters, anti-war demonstrators. The Court's "public forum" doctrine, in particular, recognizes that there are spaces in our society in which the speech of an individual cannot lawfully be restricted.[1]

Paine, in other words, is free to be a pain. In the public forums where he speaks, he can protest without fear of government censorship or private retaliation. Even more importantly, he can do so in a way that reaches many of his fellow citizens, even though they may not want to hear him. This delights Paine. He is able to express himself to a known audience without restraint. And though his reluctant listeners wouldn't be quick to admit it, many of them recognize the value of having Paine around. Occasionally he says something that makes them think twice. Or at least he reminds them that their view is not the only one out there.

Now consider Paine's plight in a world of the Internet and total filtering. Recognizing that he must follow his former audience to where they now congregate, Paine goes to a local community center and uses a public computer terminal to go online. With a little help, he even creates a web site that contains all his best rants. But he is unable to get anyone to visit his site, because he doesn't have the means to advertise it online or offline. (He doesn't, for example, run commercials on TV that say www.Paine.com.)

So Paine tries to use email to get attention. He gathers up email addresses and sends out his rants, but quickly finds that this doesn't work either. Junk email and other forms of data smog have left Paine's potential audience resentful of unsolicited messages. They ask him not to send them any more email or they set their email programs to block all messages from him. Or even worse, many of them have decided already to accept messages only from preapproved individuals; they don't even need to know that he exists in order to keep him away. The same happens when Paine joins various online discussions. The power of total filtering means that his voice can be excluded effortlessly.

To see what this does to free speech and social discourse, consider what would happen if we reversed Paine's story. What if Paine's reluctant listeners could take the Net's personalization of experience and use it in the physical world? As they prepared to walk through a crowded public square, they could program a filter to erase Paine or anyone else. They would not have to hear the civil rights marcher, take a leaflet from the striking worker, or see the unwashed homeless person. Their world would be cleansed of all interactions save those that they explicitly chose. The cumulative effect on Paine would be little different than if someone placed a glass bubble around him, or if he were removed from the public square and permitted to protest only out in an empty field at the outskirts of town.

Confronting the Problem

Paine's predicament shows how the control revolution is changing the ground rules of free speech and, consequently, of civil society. Even as new technology gives individuals the ability to speak without fear of institutional censorship, it gives all of us a new ability to avoid speech we don't want to hear. The result, in the aggregate, is that the speech of certain individuals - especially marginal speakers - may well be lost in cyberspace.

This problem is not confined to the Net. Prior to the rise of new media, traditional public forums have been dwindling in number and importance, leaving speakers like Paine without an effective soapbox. Suburbanization has allowed the middle and upper classes to isolate themselves, avoiding not just the blight of the inner city but the need to confront those who are different. The conversion of formerly public spaces, such as marketplaces and parks, into private enclaves has also contributed to the sanitizing of public experience. As Yale law professor Owen Fiss has shown, the unconstrained cacophony of the street corner has given way to the restrictive rules of the shopping mall and the privately managed commons. Moreover, where true public forums continue to exist, courts have sometimes narrowed the scope of free speech that is allowed there.[2]

What may be most distressing about total filtering, then, is the way it could solidify a trend toward the elimination of spaces where citizens can confront and engage one another. Of course, it's always been the case that some speakers have a hard time getting noticed, and this is not always a lamentable fact. The difference, though, is one of opportunity.

The American system of freedom of expression includes a kind of unspoken compromise between the unpopular speaker and the reluctant listener. Though we may take it for granted, there is a careful balance of power that gives the speaker a minimal opportunity to be heard and the listener the freedom to move on after fulfilling her equally minimal, even subconscious, obligation to acknowledge the speaker. We presume, then, that a speaker will get at least one bite at the apple - one chance to confront passersby and capture their attention before they avert their eyes and continue on their way.[3]

On its face, this opportunity for confrontation may seem more of a luxury than a necessity. So long as people are not censored by government and can choose to hear what they want, some might say, then free expression will flourish. But this ignores the reality of how speech works. Governing regimes that have sought to muzzle critics have often simply deprived those speakers of an audience. They don't actually need to prevent a rabble-rouser from talking. They can just refuse to give him a license to picket or parade. Or they can threaten to arrest him for loitering or disturbing the peace. Or if he gets really wily, they can remove him to some Siberia where he is sure not to be heard.[4]

The opportunity for one citizen to confront another is important not just for the sake of the speaker. It is fundamental to the idea that in a democracy "debate on public issues should be uninhibited, robust, and wide-open."[5] From the collective decision-making of ancient Athens to the town meetings of colonial New England, open dialogue between citizens has been recognized as a key component of a democratic society, allowing unpopular ideas to compete with orthodoxies.[6] It ensures that citizens will hear the complaints of society's most aggrieved, rather than automatically filtering them out. On a day-to-day basis, this may not seem to matter much. But at the crucial moments that shape politics - a civil rights protest, a labor strike, door-to-door canvassing for a reform candidate - nothing may be more important than a person's ability to temporarily dislodge fellow community members from their worlds of individualized control.

Surely there are - and must be - many private environments in which we can shield ourselves completely from unwanted stimuli. Indeed, the overwhelming majority of our time should be spent in such environments. But our constitutional system also presumes the existence of public spaces in which we cannot fully privatize experience.

"Outside the home," the Supreme Court has said, "the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away."[7] Or as the Court plainly put it on another occasion, "we are often 'captives' outside the sanctuary of the home and subject to objectionable speech."[8]

In the digital context, things are different. Though the Net empowers us as speakers, it empowers us as listeners even more. We need never be "captives" subject to speech we don't want to hear. There is, in other words, no reason to believe that the speaker will get his one bite at the apple.

This leads to an interesting "If a tree falls in the forest . . ." question: If a figure like Paine speaks and everyone sets their filters so that they don't hear him, is he speaking freely at all? Certainly, such a situation does not help us, as a society, to achieve the broad democratic aims of free speech. Yet many First Amendment traditionalists would still say that Paine is freely exercising his speech rights, and their reasoning would go as follows: Paine is not being prevented from speaking by the government. Rather, he is simply bringing an unpopular offering to the marketplace of ideas. If people found what he had to say worthy, then they would not block his messages. Indeed, if Paine's ideas were compelling enough, they might even come to be seen as more valid than the ideas he was criticizing.

The problem with this argument is that it assumes that Paine has had a fair shot in making his views known to the public. Yet we have already seen how total filtering may deprive Paine of even the minimal opportunity to engage others that he had in the traditional public forum.

The New Market for Speech

So are Paine's ideas really being rejected by the marketplace of ideas? Or is the marketplace not open to him in the first place? The marketplace of ideas is, of course, a metaphor. Yet as conceived by the famous jurist Oliver Wendell Holmes, it presumes an accessible, merit-based forum in which an idea can be aired.[9] The fate of that idea is then supposed to turn on its quality and veracity, not on its initial popularity or the resources behind it. Our free-speech tradition, in fact, presumes that one reason we don't censor "bad speech" is because it will ultimately be trumped by "good speech" in the marketplace of ideas. Of course, there have always been different levels of access to this marketplace depending on a speaker's status and wealth. But the control revolution presents the possibility of a much more cutthroat market for speech. When potential listeners can effortlessly screen out unwanted views, the ability of speakers to have their expression heard will depend increasingly on their ability to penetrate barriers of exclusion.

The odd thing is that the interactivity of the Net appears to remove such barriers, yet filtering technology allows them to be erected with such ease. As Bill Gates says, "We'll exercise more control over who can interrupt us, who can get to our in-box than we have today where people can ring your phone or ring your beeper.... Controlled access will be a big theme and software can take care of that."[10]

Similarly, one of the great promises of the digital age has been the idea that it will be inexpensive to speak and reach a wide audience.[11] Yet in the new market for speech, speakers may well have to pay for an audience. That may be the only way that they can get people's attention. Marketers who want individuals to read their commercial pitches seem increasingly willing to pay them to do so.[12] And when it comes to speech directed at politicians, our campaign finance system has already shown how costly it can be for a citizen to be heard.[13] Is there reason to think the situation will be any different for digital speech between one citizen and another?

Again, listen to Gates: "If a stranger ... wants to send you [electronic] mail, [he'll] have to put up a certain amount of money in order to get you to read it because your time is the valuable resource."[14]

The new market for speech can thus be seen as the combination of the traditional marketplace of ideas with a new market for a very precious resource: attention. Information overload is driving citizens to narrow their speech environments by personalizing the information they take in. The interactivity of the Net, in other words, is creating an oversupply of speech, particularly commonplace citizen speech, relative to its demand. Demand is low because listeners' attention is stretched thin. People already have too much information to process without having to read an email from some random citizen who wants to talk about why his taxes are too high. They have no time for it, and so they filter it out.

This market for speech has tangible consequences. It may, as noted, undermine the existing balance of power between the unpopular speaker and reluctant listener. But it also affects the ability of the average person - or the average company - to speak and to be recognized.

Different versions of the pay-to-be-heard model described by Gates can, in fact, already be found on the web. Some search engines, for example, have begun to auction search results to the highest bidder. That means that the speaker who pays most in a certain category - whether it's dermatology, dog food, or democracy - comes up in the top slot when a user does a search in that area. And most of the other search engines simply place search results amid targeted ads that track the user's search. Type "bookstore," for example, and a prominent paid link to an online bookstore - a so-called banner ad - will appear sooner than a link to the web site of any small bookstore. Gateways like America Online charge steep fees for a prominent spot on their sites.[15] In all these situations, major commercial speakers are using their financial resources to get recognized, while the voices of smaller companies, nonprofits, and individuals get jumbled in the mix. Their speech, like Paine's, may effectively be silenced.

If the new market for speech complicates our ability to speak, at least it would appear to benefit us as listeners. Yet the benefits are not so clear when we consider the multitude of perspectives unknown to us simply because they are espoused by underfunded speakers. The market for speech, in other words, further limits our opportunity to have accidental encounters that may help us in ways we didn't anticipate. We have seen the importance of such encounters already, in terms of staying informed and maintaining community. They are also central, though, to democracy. We cannot make informed decisions about social and political issues unless we are exposed to a wide range of views. This includes some speech that we might not initially want to know about. And it includes some that we might want to know about, but which might not be available to us because of the speaker's lack of resources.

For example, suppose Paine wants to inform his fellow citizens about the racially discriminatory employment practices of a popular retail store. If the store is located in physical space, Paine can stand on the sidewalk outside the store and let all the patrons know why he thinks the proprietors are biased. What if the store only exists on the web, though? How does Paine reach the store's patrons? The easiest way would be to purchase a banner advertisement on the store's web site, but that would be prohibitively expensive and the store, furthermore, could refuse to sell it to him. Entering an online chat forum run by the store probably wouldn't work, because as soon as he started talking they could toss him out (with impunity, since the site would not be a public forum). Paine's only real option would be to set up an independent protest site on the web.[16] Even if he could afford this, he would likely fail to attract an audience - or at least the specific audience of patrons he wanted to reach. His efforts would be for naught and the store's patrons would be deprived of an important message that they otherwise would not know about. The store's bigoted proprietor would be the only one coming out ahead.

With the new market for speech, then, the foes of unfettered talk may have it easy. Silencing dissenters would seem to require little action at all. Instead of ordering the city constable to arrest the protester or having him ejected by private security guards, the owner of a web site or online chat forum could simply press a button and - poof! - the dissenter would be erased. (Speaking about the ability to use the Net for human rights activism, organizer Bill Batson cites Frederick Douglass and says, "Power concedes nothing without a demand. But making that demand with a device that can be turned off ... is not very compelling."[17])

Paine's problem - and ours - is that there are no real public forums online, no communal areas in which individuals are occasionally subjected (as a matter of law) to speech that they don't want to hear. Admittedly this may not seem at first like a problem. It may, in fact, seem to be a wonderful new benefit of the control revolution, the ability to maintain one's solace and sanity by filtering out all the noise of an information society. But there is something different about the individual control at work here.

Here we have an instance where the freedom of some individuals (to filter out speech) may begin to interfere with the freedom of others (to speak to fellow citizens). In other words, we are seeing how the control revolution's shift of power could benefit some individuals more than others - or even some individuals at the expense of others.

Notes

[1] Spaces such as streets and parks "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions," the Supreme Court said in Hague v. CIO, 307 U.S. 496, 515 (1939). The Court has held, more precisely, that content-based government restrictions on speech in the public forum are unconstitutional under the First Amendment unless supported by a narrowly tailored law that serves a compelling state interest. See, for example, Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45-46 (1983); Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819, 828-830 (1995). The First Amendment, in limited circumstances, has also been held to prevent powerful private actors from inhibiting speech in public forums. See Marsh v. Alabama, 326 U.S. 501 (1946).

[2] See, for example, International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) (restricting free speech rights of individuals in a pubic airport); United States v. Kokinda, 497 U.S. 720 (1990) (restricting free speech rights on a public sidewalk adjacent to a post office); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (restricting free speech rights in a shopping mall). For an excellent treatment of these issues, see Owen M. Fiss, The Irony of Free Speech (Cambridge, Mass.: Harvard Univ. Press, 1996), and Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder, Colo.: Westview Press, 1996).

[3] The Supreme Court has made clear that, for free-speech purposes, it is always better for citizens to bear the burden of avoiding unwanted speech than it is to silence that speech. See, for example, Madsen v. Women's Health Center, 513 U.S. 753, 773 (1994); Erznoznik v. City of Jacksonville, 442 U.S. 205, 209 (1975).

[4] Fortunately, American courts have recognized that the right to free speech may also imply the right to speak in certain venues and to certain audiences. See, for example, Schneider v. State, 308 U.S. 147, 163 (1939) ("One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."); City of Ladue v. Gilleo, 512 U.S. 43 (1994) (striking down ordinance preventing citizens from posting signs on personal property on grounds that citizens had right to speak to particular audience of neighbors); Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. Denied, 117 S. Ct. 2408 (U.S. 1997) (striking down licensing scheme for street artists on grounds that artists had right to display visual work on streets of New York as opposed to in their homes or in galleries).

[5] This is Justice William Brennan's renowned formulation, from New York Times v. Sullivan, 376 U.S. 254, 270 (1964). For more on this, see Fiss, Liberalism Divided, Chapter 2.

[6] See Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980).

[7] FCC v. Pacifica Foundation, 438 U.S. 726, 749 n.27 (1978).

[8] Rowan v. United States Post Office Department, 397 U.S. 728, 738 (1970).

[9] See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (advocating "free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market").

[10] Bill Gates, November 1995 Public Lecture.

[11] See, for example, Eugene Volokh, "Cheap Speech and What It Will Do", Yale Law Journal 104 (1995): 1805.

[12] In early 1999, for example, a start-up company called Free-PC (formerly at: www.free-pc.com) offered 10,000 free computers and Internet connections to individuals who would agree to watch selected onscreen advertisements on their new computers, regardless of whether they were connected to the Internet. Close to a million people apparently tried to sign up for the deal. See Matt Richtel, "Plan for Free PC's Has a Few Attachments", New York Times, February 8, 1999, C8; Anita Hamilton, "Your Technology: Free PCs, for a Price", Time, February 22, 1999, 98.

[13] For example, Roger Tamraz, an oil financier, gave $177,000 to Democrats in 1995 and 1996 so that he could gain access to President Clinton through "coffees" with the president. Anne Fares, "Unfolding Story Swelling Like a Sponge", Washington Post, April 6, 1997, A16.

[14] Bill Gates, November 1995 Public Lecture.

[15] See, for example, "This Space Available on AOL Starting for a Mere $25,000", New York Times, October 1, 1998, G3.

[16] See, for example, https://www.aolsucks.com/.

[17] Quoted in Michael Marriot, "Amplifying Voices for Human Rights", New York Times, February 26, 1998, G.14.

From the book, The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know. (c) 1999 by Andrew L. Shapiro. Reprinted by permission of PublicAffairs (New York). All rights reserved. Web site: https://www.publicaffairsbooks.com/index.html Address: PublicAffairs, 250 West 57th Street, Suite 1321, New York, NY 10107. Telephone: 212.397.666. For more information on Andrew Shapiro and the The Control Revolution, go to: https://www.publicaffairsbooks.com/books/con-pbk.html, or https://www.controlrevolution.com/