TCS Daily


A Good Year for Free Speech?

By Glenn Harlan Reynolds - December 22, 2004 12:00 AM

To listen to some people talk, 1984 came 20 years late. But despite all the talk of "crushing of dissent," I'd argue that, in many ways, free speech made great strides in 2004, and that the people who have been complaining have missed the story -- or hope that you will.

2004 saw the infamous Janet Jackson "wardrobe malfunction" at the Super Bowl, and FCC fines against Howard Stern. But now Stern is going to satellite radio, and the FCC has announced that satellite broadcasts don't fall under the statute empowering its broadcast indecency rules. So Stern will be free to say whatever he wants without fear of FCC fines, and -- apparently -- lots of people will be happy to pay to hear him. Everybody wins.

But it gets better. In a little-noticed happening, Mobile PC notes that the RIAA lost every lawsuit in 2004:

"In the last 12 months, the RIAA lost a landmark suit against Grokster (essentially legalizing peer-to-peer software), lost a suit to Verizon (holding that it did not have to provide names of its subscribers who the RIAA wanted to sue), and has yet to actually win against any of the thousands of individuals it has sued in court (some of the cases have been settled out of court, most are still pending). Suddenly, the RIAA isn't looking so much as devastating as it does merely pathetic."

And hurray for that. As the item excerpted above notes, the RIAA has done enormous damage to free expression, but it's bumping up against its limits now. I wrote about this a while back:

"Thanks to the predatory tactics of the motion picture and record industries, the reputations of intellectual property and the whole sphere of entertainment law have undergone a dramatic change among my law students. Just a few years ago, both were regarded as cool and presumptively good. Now the presumption is the reverse, and the entertainment industries are in disrepute.

"It is possible that the courts will bring on this change. . . .

"And if the courts don't do the job, perhaps politics will. Republicans are beginning to notice that the chief beneficiaries of this intellectual property explosion are entertainment industries that support Democrats. Legislation to limit their power would deprive the opposition of funding, while winning the affection of the tens of millions of voters - especially younger, technology-savvy voters - whose slogan is "Keep your grubby laws off my computer." Will Republicans take advantage of this opportunity? That depends on whether they want to be a majority party - or history."

With solid control of both Congress and the Executive, the Republicans have it within their power to get rid of the DMCA and related laws that restrict free speech in the name of intellectual property, and to deal a blow to the industries and people who have been their most determined, well-funded, and vitriolic opponents. Extend Michael Moore's copyrights? The politics of this situation ought the favor free speech.

And, of course, 2004 saw another stage in the growth of the blogosphere. In fact, this week's Time, which named President Bush its Person of the Year, named the Power Line blog its "blog of the year," for its central role in the exposure of Dan Rather's forged-documents scandal. As Time wrote:

"The story of how three amateur journalists working in a homegrown online medium challenged a network news legend and won has many, many game-changing angles to it. One of the strangest and most radical is that the key information in 'The 61st Minute' came from Power Line's readers, not its ostensible writers. The Power Liners are quick, even eager, to point this out. 'What this story shows more than anything is the power of the medium," Hinderaker says. 'The world is full of smart people who have information about every imaginable topic, and until the Internet came along, there wasn't any practical way to put it together.'"

Now there is. A phenomenon like 'The 61st Minute' is the result of the journalistic equivalent of massively parallel processing. The Internet is a two-way superhighway, and every Power Line reader is also a Power Line writer, stringer, ombudsman and editor at large. There are 100,000 cooks in the kitchen, and more are showing up all the time. Call it the Power Line effect. Conventional media may have more readers than blogs do, but conventional media can't leverage those readers the way blogs can. Want a glimpse of the future of blogs? The more popular blogs are, the stronger they get. And they're not getting any less popular.

That's absolutely right. (And, ahem, some of us were pointing it out three years ago -- but now even Michael Kinsley has noticed!) And it's why 2004 has been a great year for free speech. May 2005 be even better.


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