Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do"

In Fall 1994, I wrote an article called “Cheap Speech and What It Will Do,” which became my first publication as a law professor. It was for a Yale Law Journal symposium called “Emerging Media Technology and the First Amendment,” which was about the then-emerging technology of the Internet. (Fun fact: Back then, we would hammer out our manuscripts with chisels on clay tablets.) Thirty years later, I thought I’d serialize the piece here, to see what I may have gotten right—and what I got wrong, from “infobahn” to people printing out daily newsletters to read them.

I’ve omitted most of the footnotes—you can see them here—but I’ve moved a few of the substantive ones into text, marking them (as I usually do for moved text) with { and }. This morning, I begin with the Introduction.

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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.

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”  or “infobahn,”  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. )

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.

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Source: https://reason.com/volokh/2025/05/27/setting-the-wayback-machine-to-1995-cheap-speech-and-what-it-will-do/