Cheap
Speech
and
What
It
Will
Do
Eugene
Volokht
CONTENTS
CHEAP
SPEECH
...........................................
1808
A.
Music
and
the
Electronic
Music
Databases
....................
1808
1.
The
New
System
....................................
1808
a.
What
It
Will
Look
Like
.............................
1808
b.
Why
It
Will
Look
Like
This
..........................
1810
2.
How
the
New
System
Will
Change
What
Is
Available
..........
1814
3.
Dealing
with
Information
Overload
......................
1815
4.
Will
Production
Companies
Go
Along?
....................
1818
B.
Books,
Magazines,
and
Newspapers
.........................
1819
1.
Introduction
.
......................................
1819
2.
Short
Opinion Articles
and
Home
Printers
.................
1820
3.
Cbooks
and
Books,
Magazines,
and
Newspapers
.............
1823
4.
How
the
New
Media
Will
Change
What
Is Available
..........
1826
a.
More
Diversity
. .................................
1826
b.
Custom-Tailored
Magazines
and
Newspapers
............
1828
5.
Dealing
with
Information
Overload
......................
1829
C.
Video
(TV
and
Movies)
...................................
1831
II.
SOCIAL
CONSEQUENCES
.....................................
1833
A.
Democratization
and
Diversification
.........................
1833
B.
Shift
of
Control
from
the
Intermediaries
and
What
It
Will
Mean
......
1834
1.
Shift
of
Control
to
Listeners
...........................
1834
2.
Shift
of
Control
to
Speakers:
The
Decline
of
Private
Speech
Regulations
.........................................
1836
C.
Poor
Consumers
........................................
1838
D.
What
Will
Happen
to
Advertising
(Both
Commercial
and
Political)
. ..
1841
t
Copyright
@
1995
Eugene
Volokh
<volokh@law.ucla.edu>.
Acting
Professor.
UCLA Law
School
My
thanks
to
Akhil
Amar,
Laura
Brodbeck.
Eugenia
Gershman,
Haym
Hirsh. Judge
Alex
Koznski.
Dr.
William
Short,
Gail
Standish,
and
Alexander
Volokh;
and,
of
course,
to
my
mother
Anne
and
especially
my
father
Vladimir,
at
whose
knee
I
first
learned
about
computers.
1805
The
Yale
Law
Journal
I1.
A
FEW WORDS
ABOuT
THE
NEW
MEDIA
AND THE
FIRST
AMENDMENT
....
1843
A.
Existing
Flashpoints
.....................................
1843
B.
A
Rosy
Future
.........................................
1846
C.
A
Possible
Dark
Side
....................................
1848
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.'
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,
'
will
dramatically
reduce
the
costs
of
distributing
speech;
and,
therefore,
(3)
the
new
media order
that
these
I.
See,
e.g.,
AJ.
LIEBLING,
THE
PRESS
32
(2d
rev.
ed.
1975)
("Freedom
of
the
press
is
guaranteed
only
to those who
own
one.");
CASS
R.
SUNSTE]N,
DEMOCRACY
AND
THE
PROBLEM
OF
FREE
SPEECH
58
(1993)
("Broadcasting
access
is the
practical
equivalent
of
the
right
to
speak, and
it
is
allocated
very
much
on
the
basis
of
private
willingness
to
pay.");
Jerome
A.
Barron,
Access
to
the
Press-A
New
First
Amendment
Right,
80
HARV.
L.
REV.
1641,
1643 (1967)
("[A]
comparatively
few
private
hands
are
in a
position
to
determine
not
only
the content
of
information but
its
very
availability.");
Owen
M.
Fiss,
Free
Speech
and
Social
Structure,
71
IOWA
L.
REV.
1405,
1413
(1986)
("[An
unregulated
marketplace
of
ideas
will
include]
only
those
that
are
advocated
by the
rich,
by
those who
can
borrow
from
others,
or
by
those
who
can
put
together
a product
that
will
attract sufficient
advertisers
or
subscribers to sustain
the
enterprise,").
2.
See
generally
SUNSTEIN,
supra
note
1,
at
107-14;
Fiss,
supra
note
!.
3.
The
information superhighway
is
supposed
to
provide
cheap, extremely
high-speed communication
links
to
pretty
much
the whole
country. Functionally,
it
should
operate
like
the
phone
system, but
because
it
will use fiber
optics
instead
of
wires,
it
should
be
able
to transmit
data
much
more
quickly
than
phone
lines
can.
4.
The
word-in
my
view,
a
much
snappier
term
than
information
superhighway-was
apparently
invented
by
Lynn
Levine,
director
of
market
research and
data
sales
at
Warren
Publishing,
in
1993.
E-mail
from
Brock
Meeks,
Publisher,
Cyberwire Dispatch
(online newsletter),
to
author
(Oct.
27,
1994
&
Nov.
6,
1994)
(on
file
with
author); Telephone
Conversation
with
Lynn
Levine
(Nov.
7,
1994).
The
word's
first
appearance
in
publications available
in
NEXIS
was
on
February
28,
1994;
during
the rest
of
1994,
there
have
been
almost
800
references
to
it
in
those publications.
1806
[Vol.
104:
1805
Volokh
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
I
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.
5.
See
Lawrence
Lessig,
The
Path
of
Cyberlaw.
104
YALE
L.J.
1743
(1995).
1995]
1807
The
Yale
Law
Journal
I.
CHEAP SPEECH
A. Music
and
the
Electronic
Music
Databases
1.
The
New
System
a.
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:
6.
SIDNEY SHEMEL
&
M.
WILLIAM
KRASILOVSKY,
THIS
BUSINESS
OF
Music
4-5
(6th
ed.
1990).
Artists
get
7%
to
13%
nominal
royalties (less
for
new
artists,
more
for
the
superstars),
usually
minus
a
10%
deduction-ostensibly,
but not actually,
to
cover
unsold
records-and
another
10%
to
25%
deduction
for
packaging.
Id.
7.
Consumer
convenience
is
especially
valuable
to
music
distributors
because people
often buy
music
on
impulse.
If
someone
hears
a
song
on
the
radio
and wants
to
buy
the
album, the
copyright owner
would
prefer
that
the listener
be
able
to
buy
it
immediately,
or
at
least
as
soon
as
possible.
If
the
listener
won't
go
to
a
record store
for another
week
or
month, the
song
might
be
entirely forgotten.
1808
[Vol.
104:
1805
Volokh
(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,"
0
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."
8.
The
computer
system
will
probably
monitor
how
often you use
the
services.
so
that
it
can
prevent
you from
using preplaying
as a
substitute
for
buying
the
album.
9.
At
the
low end, recording
can
cost
very
little indeed.
See
David
Rohde.
Major
Record
Labels
Try
To
Copy
the
Success
of
Independents,
CHRISTIAN
SC.
MONrIOR.
Sept.
23.
1994.
at
II
(noting
that
Nirvana's
first
album,
Bleach,
was recorded
for
S800);
Michael
Snyder.
Urban
Folk.Rockers
Swell
Up,
S.F
CHRON.,
Apr.
17,
1994,
at
35
(describing
how album that
was made
by
independent
label
for
S900
could
be released
with
no
alterations
by
major
label,
American
Recordings).
10.
See
supra
note 6.
11.
Cf
Michael
L.
Evans,
Role
Reversal:
Users
Will
Dictate
the
Development
of
Tomorrow's
Real
1995]
1809