By Clay Shirky
I’m of course here to talk about freedom of the press. And I want in particular to talk about freedom of the press as a relationship between actual technical capability and a set of legal and policy restraints that envelope and shape that capability. This is an ancient pattern. It well pre-dates the founding of the United States. In fact I think I can give you an idea of how ancient this tension is between regulatory power and technological capability by telling a story of a media revolution, but not our media revolution, the media revolution from 500 years ago.
After Johannes Gutenberg perfected type it spread through Europe and after a while a tradition of publishing bibles in vulgar languages sprung up, French and Italian, Spanish and German and, in 1526, English. A man named William Tyndale had translated the Bible into English and proposed to print and sell copies to the English. Now, the Catholic Church whose considered opinion on this matter had always been clear, if Latin was good enough for Jesus, it should be good enough for you, frowned on the production of these bibles. And in particular the Bishop of London was especially alarmed at news of an English bible being created. And so he sought to forestall the English bible getting into the hands of English citizens.
Unfortunately for him, Tyndale and the bibles were not in England, they were in Antwerp for the obvious reason. And so the Bishop of London’s power did not go across the water and Plan B was needed. Plan B was hatched in the person of a man named Augustine Packington, who was a wealthy British Catholic merchant who signed up for the job, went to Antwerp, found Tyndale, whereupon, not 100 percent understanding the economics of the printing press, he proceeded to buy every existent copy of the English language bible and then burn them. Thus creating an event that has only been whispered about in the halls of publishing institutions since, a guaranteed 100 percent revenue on a single transaction alongside an enormous marketing boost and zero loss in demand.
It is hard to imagine a scenario more opposite to what the Bishop of London desired than that scenario. And this, of course, was but one skirmish in the long struggle between the Catholic Church and the increasingly restive publishers in the intellectual foment of Europe in the 1500’s. It was a period that came to be called the Counter Reformation and the church invented strategy after strategy to attempt to grapple with. One of their other strategies was to draw up, for the first time, an index of banned books.
They didn’t draw up such an index until the 1500’s because the index of banned books was not a response to heresy. By that point the Catholic Church had been fighting off heresy for the thick end of a thousand years. It wasn’t even a response to heresy written down in books. There had been heretical codices for as long as the Codex had existed as a form. The index of banned books was a response to abundance. The threat that the Catholic Church was trying to see off was that the heretical books were now widely available, written in languages that people who didn’t read Latin could understand and, most alarming of all, they were becoming cheaper by the year.
Now, I will apologize for those of you who haven’t seen the movie, I’m going to give away the ending, the Counter-Reformation failed to counter the reformation. And so this list of strategies that the Catholic Church had tried over this period ultimately ended in a kind of a stalemate. And the Catholic Church called off the Counter-Reformation in 1648. Now, in almost any year in the 1600’s the church announcing that the Counter-Reformation had ceased would be a good candidate for most important event of the year, but not in 1648 because something much more important happened in that year as a function of the same truce, which is the end of the Thirty Years War and the signing of the Treaty of Westphalia.
What the Treaty of Westphalia said was we are going to divide Europe into well defined nations states. And we are going to retire our armies inside those borders and cease fighting with one another. And so the countries of Europe and later the world as the model spread took on the characteristic of geographically continuously areas, largely culturally a linguistic coherent populations and single well identified governments. And a curious thing happened to the media environment in light of the Treaty of Westphalia. It de-globalized. The media environment in the late 1600’s was less global than the media environment of the early 1500’s. No more printing things in Antwerp to be read in London, no more printing things in Venice to be read in Madrid.
Typically media, after Westphalia, was produced in the country where the consumers were. There were a lot of reasons for this. Some of them were quite practical. It’s cheaper to print things near and ship them near than to print them far away and ship them far away. Some of it had to do with novelty. As more people started writing books the people who owned the printing presses had to be where the authors were and most of the people writing in French were in France. And the borders of the nations state, whatever else they became, became zones of sharply reduced information flow, such that it was possible to have two very different regulatory regimes controlling the press, operating side by side in different countries with very little conflict between.
Now, a lot of media has been invented between 1648 and now. I’ve seen the telegraph and the phonograph and the photograph, we’ve seen motion pictures and the evanescence of all of same into the ether with radio and television. But curiously, despite all of the subsequent media revolutions, the media environment has stayed nationalized. Media has tended to be produced in the country where it is consumed. And that has been especially true of political media. So despite all of the new kinds of media invented, the model worked out in the aftermath of the Treaty of Westphalia has remained intact for several centuries.
There are several reasons for this. Some of them are economic. The enormous amount of money required to own a printing press or to own a broadcast station can be most easily raised within the nation where the consumers of that medium are. Some of this is technological. It’s easier for a radio station to broadcast near than to broadcast far. Some of this is regulatory. At several critical points in the 20th Century, the United States had to make choices. The United States Government had to make choices about regulatory regimes that would favor either a large number of small broadcasters or a small number of large broadcasters. And it consistently made the latter choice.
The United States prefers to work with a set of relatively large, relatively stable, relatively long lived media institutions. And this existence of national encapsulation, the nation state as both a platform and a container for free speech allowed us to essentially have it both ways in our current free speech environment. We could have an incredibly broad constitutional protection for free speech and we could have a series of laws that said, well, you can’t libel people and you can’t reveal trade secrets and here are the controls on obscenity. And because the entire conversation took place within a national matrix it was possible for the legal system to balance out those competing interests, because the whole system was contained by those borders.
If you want to see how vital the national context still is, 350 years after its invention, I can do no better than to quote Marcus Brauchli, who gave the Salant Lecture last year. And in that lecture he told a story about the Pentagon coming to the Washington Post, his paper, asking that paper not to publish a story that the Pentagon knew they were working on. Now, Brauchli’s point of course is that the most powerful government in the world could not require or demand or order the newspaper to do anything. All they could do, said Brauchli, was to discuss the national interest and ask the editor to weigh the national interest against the decision to publish and then leave the editor to make his decision.
And it is indeed a glory of the American situation that our government cannot order our media outlets not to publish things. That was the part of the story that Brauchli was telling. But I want to call your attention to something he mentioned just in passing and called almost no attention to, which is the conversation the Pentagon had with The Post was about the national interest. The Pentagon could sit in that room and assume that everyone there was a citizen, that the institution they were dealing with was incorporated in the United States and subject not just to its laws but to its long term political context. And that even if they disagreed, everyone in that conversation could be said to have something like the national interest of the United States at heart.
And the model for that conversation began in the middle of the 1600’s. And in this country ended last April with the publication of a video dubbed Collateral Murder and put up online by the online publishing site WikiLeaks. Collateral Murder was the opening salvo of the release of a very large cache of State Department documents from the State Department’s secure network. And the Collateral Murder video was a precursor to the release of a quarter of a million cables from the State Department, first filtered and redacted and then later, sadly, unfiltered and unredacted.
And as this happened and as people came to understand what WikiLeaks was doing, people cast around for the parallels to look for in the history of freedom of the press. And very often in conversation the parallels that came up were the ones that everyone reaches for as students of contemporary American democracy in media. The New York Times decision to publish the Pentagon Papers and The Washington Post’s refusal to reveal the identity of the informant in the Watergate case known as Deep Throat. But actors who were in those situations, Bill Keller at the New York Times, Floyd Abrams who was the lawyer who argued the Pentagon Papers case have explicitly denied the Pentagon Papers or the Watergate case are the apposite comparisons here. And although I disagree with those men as to why I think they are correct, I don’t believe that the Pentagon Papers gives us the framework we need to think about WikiLeaks.
Compare the conversation with Marcus Brauchli and the conversation with Julian Assange, founder of WikiLeaks. There was no way the State Department could go to WikiLeaks and have a conversation that hinged on or even involved anything called the national interest. Julian is not a U.S. citizen, he is an Australian citizen. He was not operating on U.S. soil, he was in Iceland. And so the Pentagon Papers, conversation took place entirely within the national matrix. And the WikiLeaks conversation took place outside of it. I don’t think that the apposite comparison is the Pentagon Papers. I think the apposite comparison for WikiLeaks is William Tyndale’s bible.
Julian is the publisher operating on remote soil. Reykjavik is our Antwerp. It is the environment that is far enough away from us that we can’t get there. And the role of the Catholic Church is this time played by the United States Government. The most powerful force that discovers its power stops at the water’s edge and it can’t reach out and affect the media environment in the way that it would like. And in an even worse parallel the histrionic but unfocused reactions from various parts of the U.S. Government not least, alas, the Senate, called significantly more attention to those documents than there would have been otherwise. And caused the people at WikiLeaks so much consternation that they decided to distribute alternate versions of the encrypted file as a kind of doomsday device should WikiLeaks in fact be taken down.
And this is partly because WikiLeaks was being pursued via extra legal means to have its hosting arrangements taken away, to have itself cut off from financial services via the credit system and so on. And the presence of those encrypted documents was one of the precursors to those documents finally being decoded. And for people who had risked their lives to try to help the United States now being subjected to plain identification in clear text. From Tyndale’s bible to WikiLeaks I think history has repeated itself, but this time it was the second time that was tragedy.
Now, I don’t want to leave you with the impression that WikiLeaks has caused this post national media environment. In fact WikiLeaks’ principle tool here wasn’t there servers or their software or their people, WikiLeaks principle tool was the Internet. When you have a medium that allows data to move from Kandahar to Reykjavik and from there to Madrid and London and New York and to do so quickly and privately and above all cheaply, you have a medium that makes it easy to create these kinds of platforms. But because it’s the Internet driving this post national media environment different countries discover this change at different times.
In Canada in 1994 during a particularly lurid sex crimes trial called the Homolka Teale trial a Canadian judge enjoined the press from discussing the trial. And as had happened in the past this successfully stopped magazines and newspapers and radio and television from discussing the trial. But the Canadian judge discovered it could not stop conversation on America Online and they could not stop conversation on Usenet. The national border had not become porous so much as irrelevant.
Five years ago in Italy a documentary made about the priestly abuse scandal, first discovered and documented in this city by The Boston Globe, that documentary movie was going to be shown to the Italian people on RAI, the Italian broadcaster. And so the Italian Parliament said, well, no, actually you are not going to do that. We forbid the national broadcaster from showing this documentary, at which point it was uploaded to YouTube and it stopped mattering. Just last year I was talking to The Guardian’s correspondent in Johannesburg who said I used to write about South Africa so that people in England could read about it. But with The Guardian’s online presence and the number of South Africans connected to the Internet, I now have more readers in South Africa than I have in England. So an Englishman in South Africa writes for an English paper to be read by South Africans. It’s not how you would route the news if you were looking at a map, but sometimes other things trump geography, and increasingly that is the case.
Now, if I had to pick a spokesperson for the complicated and confused state of national regulation and post national media, I would pick Judge Eady, a British judge who was asked to weigh in on a free speech case earlier this summer. A British footballer was rumored to have had an affair with a young lady, not his wife, who was both a model and a star on a popular reality television show. So the tabloid headlines, they basically write themselves. But the footballer took out what is called a super injunction. A super injunction is a way of not merely instructing the British press not to write about something, but also instructing them not to mention the fact that there is something they can’t talk about. It is like double secret probation for newspapers.
And this lasted, as you might imagine, all of about 35 seconds. Tens of thousands of people on Twitter showed up and said, hey, Ryan Giggs is having an affair with Imogen Thomas, how about that? And when it was pointed out to Judge Eady that the super injunction had been utterly ineffective he said if the British populace is going to start behaving like publishing outlets they are also going to have to start learning that the law applies to them as well. So stay with that irony for a minute. The whole point of a super injunction is not to tell the public something. But if every member of the public is a media outlet you have to tell them the thing that they are not supposed to know in order that they can obey the law, thus eviscerating your court order by enforcing it. So Judge Eady gets my vote for the not thinking things all the way through award, an award somewhat debased alas by the fact that it’s given out about once an hour in the current media environment.
So this is a dangerous moment for free speech. Not because we know how nation states and post national media environments interact, but because we don’t. We don’t. And the reaction to that change, the reaction to the enormous increase in free speech as an actual practical capability could leave us in a considerably worse state than we are now. There is a lot of attention paid when thinking about freedom of speech, particularly as regards to the use of the Internet, on the world’s autocracies, on Iran, on China, on Cuba. But of course there is nothing new there. Autocracies have always expended an extraordinary amount of resources to keep their people from communicating with one another or with the outside world.
The threat we face now is coming from the world’s democracies. South Africa, which has discovered that a press that has more international coverage and more transparent access to data is getting uncomfortably close to some ties between the president’s family and the issuing of state contracts for things like mining rights, has proposed a press tribunal which basically would have, if enacted, the right to oversee the interaction of all of the press operating in that country, whether they were incorporated locally or globally.
South Korea in the aftermath of protests that shook Lee Myung-bak’s government in the middle of 2008 has enacted a real names law in which a South Korean citizen wanting to do so much as comment on a video must register their real name with that site in a way that is directly accessible to the South Korean Government on demand. And to make it clear that this is not about increasing personal accountability but decreasing group coordination, the law only applies to sites with 10,000 or more users. This is not actually about individual behavior, this is about group synchronization. South Korea, because of this, is the first nation to get itself banned from YouTube by Google rather than comply with the law.
In Italy right now they are debating a law which says anyone who has something written about them online that they don’t like has the right to demand that that same site publish a reply, unredacted and uncommented on in full within 48 hours or be fined 12,000 euros. Here’s two things that law doesn’t propose. It doesn’t propose that the accuracy of the statement is any sort of defense at all and it doesn’t propose any exemption for political speech. That may go through the Italian Congress next week.
Now, we would expect the governments of the world, even democracies, to be somewhat iffy about this. Democracies have always been fitful supporters of free speech and when they do support increases of free speech they have typically supported it only incrementally. So it is disappointing but not surprising that the threats are coming from democracies. What’s disappointing and surprising is the threat that is coming from mainstream media. Because they have typically been the most active, most vocal proponents of free speech and the most active opponents of states to restrict that speech. But in this case they are curiously quiet. Now, one need allude only lightly, especially in this gathering, to the commercial and competitive forces unleashed by new Internet competitors as felt by the group of organizations we have learned to call traditional media. And to the affront to professional dignity to see citizens calling themselves publishers merely because they have software that has a button that says publish.
But even then, even then the temptation to assume that there is a separation that can be cleanly and coherently drawn between traditional publishers and the new participants in the media environment is pernicious. Bill Keller has gone out of his way to characterize WikiLeaks as a source, to talk about WikiLeaks in a way that explicitly denies that what WikiLeaks is doing is in any way related to what the New York Times is doing. But Joe Lieberman, God bless him, intellectually honest to the last, gave the game away last fall on the Senate floor. When people were looking for a way to charge WikiLeaks with a crime Lieberman got up and said we should absolutely do that and we should go after The New York Times too. Because Lieberman recognized what Keller denies, which is that any legal rationale for going after WikiLeaks is a legal rationale for going after The New York Times. And what Lieberman fantasizes about is re-adjudicating the Pentagon Papers case, this time with The New York Times in the losing role.
… I wish I had better tidings to bring you on the happy occasion of Shorenstein’s 25th Anniversary, but alas, I don’t. I wish I could tell you that the expansion in free speech occasioned by these new tools is a lock, a done deal so baked into the environment that it can’t be uprooted and it can’t be reversed. Sadly that is not true. So what I will say instead, three things. First, twenty years from now we are going to look back on this period and we are either going to recognize it as the beginning of a revolution or as a funny interregnum. Because what the democracies of the world are asking for, like the index of banned books, is not a sensible return to a previously acceptable status quo, but instead a vast new set of powers unlike anything they had enjoyed previously.
And that if we are going to see this period as a revolution and not as an interregnum we have to sign the democracies of the world and particularly the United States of America up for the idea that freedom of speech is something that has to be defended. It can’t be allowed to be eroded piecemeal. In particular we have been quite good at talking about control of speech to the governments in Tehran and Havana and Beijing. But we have to get that good and better at holding ourselves to those standards and in having that conversation with the governments of Seoul and Rome and Pretoria. If we don’t hold ourselves to those standards and we don’t hold our democratic allies to those standards we have no standing to lecture autocracies at all.
The second thing I will say is that if we are going to see this period as a revolution and not as an interregnum we have to sign up the traditional media outlets for defense of freedom of speech, even on the part of the new entries. Yea unto the lowliest blogger. There is no way to draw a clean line that said media, essentially media incorporated before 2000, one set of rules to the left, people publishing after 2000, another set of rules to the right. Rationales for restricting speech are rationales for restricting speech and the mainstream media needs to understand that notwithstanding the competitive pressures and the affront to professional dignity, with the digitization of all media well underway, there is only one media environment that matters and controls in that media environment will apply to all participants. We need to be very careful about thinking through the logic of this because we may be setting the stage, not just for the next few months, the next few years, but for the foreseeable future.
And the third thing I’ll say is that if you wanted to take that problem on you would want to do it from inside an institution that is committed in equal parts to thinking about the press and about public policy. I can think of nothing I would recommend more highly to Shorenstein in the next 25 years than thinking through the possibility of political speech in a post national environment and securing for ourselves some of the advantages we enjoyed in securing political speech in a national environment.
We could do this. We could see that this increase in freedom of expression, the practical lived experience for billions of people worldwide remains part of the global fabric of conversation. But we could also lose. Not all counter reformations fail. Last time maybe we just got lucky.
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