Protecting and Promoting Dissent and Free Expression in the Digital Age

-- By ThomasHou? - 01 Dec 2011

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. . . . We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. . . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).

Section I: The Continued Importance of Free Expression and Dissent

Why do we have the First Amendment? It is to have free expression. Why do we have free expression? Many reasons have been proposed, which T.I. Emerson grouped into four: 1) assuring individual self-fulfillment, at centre of Western philosophical thought; 2) attaining truth and knowledge through debate and differing ideas; 3) providing for participation in decision making by the whole community; and 4) achieving a stable yet adaptable community. I believe the last one is more important than ever today and deserves special significance in the information age. The basis premise is this: free expression allows for the development and sharing of new ideas, while suppression shutters those new ideas in favor of stultification and old ideas. A society needs new ideas and flexibility to adjust to changing circumstances and to achieve social progress.

Evolution theory provides the best support for this premise. In nature, individual organisms, even those that live in "societies" like man does, live in a changing and unpredictable environment. Within a species and genus, individuals are different in certain traits that produce various advantages or disadvantages according to natural conditions. But it is that variation that allows a species to survive and prosper - those with favorable traits survive and pass them along to the next generation. For man in societies, the same laws should hold true. The world is changing, faster than ever, and is unpredictable. Beyond our physical differences, it is our intellectual differences that distinguish ourselves and our societies. Unlike natural traits, intellectual traits and ideas can be self-developed and expressed, so long as the society tolerates them. That is why having free expression is so important - having intellectual diversity and promoting it allows society to develop new ideas in a changing environment. Those new ideas allow society to question its old ideas and ensure the society can survive and even thrive in a changing world.

This theory holds true more than ever in the 21st century. Free expression serves another overarching role here, that of innovation. Developing new ideas and ways of communicating those ideas to the public is as vital as ever. We have more tools. But we still need to do it. In the seminal Internet free expression case, ACLU v. Reno, the district court judge likened the Internet and the electronic bulletin boards to the church walls where modern Martin Luthers can post their theses. Martin Luther helped Germany question its feudal religious beliefs and usher in a more liberal and prosperous era in Europe. Today, we need more Martin Luthers. And on the world wide web, we need to protect not only those with new ideas, but also those who receive and can benefit from the new ideas. What we most need in a "democratic culture," which Jack Balkin describes as a place where ordinary citizens can participate in creativity using the digital tools and not just be passive observers or consumers. Our free expression culture must adapt to that end. The 19th century was about property rights; the 20th about political rights; the 21st must be about innovation.

Section II: New Threats to Free Expression and Dissent

Section III: What Should Be Done

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