I will be at Georgetown Law tomorrow for another of Sandra Day O'Connor's conference on the State of the Judiciary. In preparation, I have been re-reading Paul Starr's book, The Creation of the Media, looking back at previous remarks by Justices O'Connor and Breyer from the previous two conferences, thinking about Jay Rosen's speech on blogger ethics, all in the context of what I saw at BlogWorld last weekend in Las Vegas. Below is a draft wherein I am thinking through how these relate back to and otherwise inform my work for the Media Bloggers Association. I throw out here in draft form to solicit feedback before I finalize any conclusions to be drawn from this thought-exercise.
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DRAFT
In his 2004 book, The Creation of the Media, Paul Starr of Princeton University explains how long ago political choices created the current media world in which we live. Starr uses the term “constitutive choices” to describe political decisions about freedom of expression, media ownership, government subsidies, network architecture, secrecy, privacy and intellectual property that have driven the historical development of the media. Such choices are about how things are built or how they will work and what role government will have; their design and rules of operations. These choices are made during what Starr calls “constitutive moments”, historical periods when the material and institutional frameworks of fields of human activity are created. The resulting institutions and frameworks, once established, both resist change and move future development in a particular direction.
The mission of the Media Bloggers Association should be understood within this context as Starr’s thinking has influenced my own. We are an association of bloggers seeking to promote blogging as a distinct form of media, to product bloggers and to educate both bloggers and those wishing to understand blogging and citizen media. We recognize that the world is in the midst of making constitutive choices that will determine the future development of citizen media and act with this in mind. Our efforts to obtain media credentials for bloggers, to create a network of lawyers willing and able to assist bloggers respond to legal threats, to put forward a Statement of Principles as ethical aspirations for bloggers, to create courses on media law to help bloggers avoid easily sidestepped legal pitfalls, to help establish liability insurance for blogger are all part of our fundamental understanding that making constitutive choices; require options; our programs and initiatives represent our best articulation of some of these options which we hope will, over time, be widely adopted by most bloggers.
Current decisions on issues like “net neutrality” are constitutive choices with the potential to have a far-reaching and perhaps unexpected set of outcomes. To take a complex issue and reduce it to its simplest parts; proponents of net neutrality want direct and indirect government subsidies of the Internet whereas opponents want a “free market” solution. As Starr points out, this is a false choice. The government has always subsidized communications networks going back to the constitutive decision to nationalize the post office, a decision enshrined in the U.S. Constitution, the only industry so established. So, there is not really a question of whether the government should subsidize communications networks but to what extent and what limits should be placed on commercial enterprises that help create those networks and those individuals and organizations that use them.
The development of citizen media in the United States over the past ten years has taken place within the previously established American media framework. Within that framework there are additional choices being made today which are, in effect, constitutive decisions for the blogosphere: ethical standards, applications of copyright law, property ownership, network architectures, legal frameworks and so on. These decisions are taking place within an environment fraught with tension between notions of social utility and commercialization. Similar to the debates in the early nineties on whether the Internet itself should be open to commercial use, some pioneers and early adopters of blogging have resisted or at least bemoaned the influx of commercial interest into their world. Others have sought to exploit that tension by wrapping themselves in the mantle of what some might call the “Cluetrain Manifesto” ethos of the early blogosphere – the language of the human voice as “open, natural, uncontrived” under the guise of leading the charge to tear down the gates of the traditional media all while seeking to erect new gates which only they control. These are often but not always venture-funded publishing companies that masquerade as individuals by adopting the language and tone of community in order to establish communities they control. Meanwhile, entrepreneurs, venture capitalist and various commercial entities, blissfully unaware of this tension, have rushed pell-mell into the latest technology gold field - whether to mine for precious metals or sell picks and shovels to the miners.
This tension exists within the broad historical context dating back to the early development of publishing that depended directly on a commercial framework and understood implicitly the interdependency between publishing and free speech. In essence, monetizing content drives free expression and thus free speech but free speech is a necessary condition of the ability to monetize content. However one chooses to resolve this dialectic, it is clear that the ability to make money from content depends on protections for free speech as well as clearly defined property rights and limited-term monopolies on content that permit content creators to monetize their creative works. These protections, in turn, require transparency in government in the form of a constitution (so everyone knows the rules) that is widely and cheaply distributed to a literate audience and an open legislative process (so everyone can see the rules are being followed). In order to function, there must be institutional limitations on state powers and a fair and independent judiciary able to serve as the accepted arbiter of whether the legislative and executive branches of government are operating within the limits places upon them by the constitution through which free speech and property rights are protected.
While those engaged in the pursuit of monetization of blogger content rightly focus their energies on making money, their efforts should be understand in the broader context of how their striving to make money from content makes free expression possible. As we have seen, bloggers who are unable to monetize their content drop out while those who make money remain active and grow. More money flowing to content creators means more voices and thus free speech interests are advanced.
Making money from content has historically depended on government subsidized communications and transportation networks such as the post office, telegraph and telephone, railways, interstate highways, internet; property rights including limited monopolies on creative works in the form of copyright, trademark and patent law; and a fair and independent judiciary to protect ownership which, in turns, breeds investor confidence. Seen in that light, the entire capitalist structure rests upon a trust that courts will be fair and free from outside influence in rigorously applying the law in a fair and transparent manner and there is a direct link between free speech and the monetization of content.
