Saturday, February 20, 2010

Information Value and Free Speech

Note: These are some ideas that I've been kicking around lately. It's certainly possible that other people have devoted more substantive thought to this than I have and articulated it better. I don't claim these as original ideas - I've directed no research towards this question, so I have no idea who may have already said what about any of this. On the other hand, it's also possible that there's not much merit in this, and that nobody has spent time thinking about it. Anyways, this post falls into the category of "random thoughts."

Let's start with the premise that information is valuable. This proposition is likely as close to being universally accepted as anything can be. Whether you're gathering military intelligence or stock tips, having knowledge is an advantage.

The next premise is that information dissemination used to be a very expensive venture. Imagine the costs associated with transmitting a large volume of information over a great distance one thousand years ago. Let's say a phonebook, from Baghdad to Reykjavik, in the year 1000. (Ignore the anachronism for the sake of illustration.) You're in Baghdad, and you need to get all the information contained in that phonebook, consisting of thousands of names and numbers, to someone in Reykjavik. You don't have a printing press, so you're going to have to pay somebody to copy out all of those thousands of names and numbers by hand. Then you're going to have to arrange for the copy to be conveyed halfway across the world. This will entail horses, ships, and other not-so-fast modes of transportation. This is also happening in an era where bears, bandits, and storms carry a real risk of your courier getting killed and this information being lost en route. So, if you want to really make sure that your phonebook gets to Reykjavik, you would be well-advised to at least duplicate your efforts: multiple hand-made copies, multiple couriers, multiple ships/horses. Result: it's very expensive to get that phonebook to Reykjavik. Given the expense of all this, you're going to be very reluctant to transmit information unless it's actually valuable in some sense.

But technological progress has made the transmission of information cheaper. Let's say we're trying to get that phone book from Baghdad to Reykjavik 500 years ago instead of 1000. It's still going to be fairly expensive, but far less so than it was 500 years earlier. By 1500 you've got a printing press, so you're not going to have to spend so much time and money getting the book transcribed by hand. You've got better navigation technologies, so ships are less likely to sink on the way there, and you're less likely to feel the need to duplicate your efforts. It's going to be cheaper and easier still in 1600, in 1700, and so on.

Today, getting that information from Baghdad to Reykjavik now happens literally instantaneously, and at no measurable cost to the transmitter. Forget horses, ships, printed or handwritten copies and the rest - this is now a matter of clicking a mouse. Today, information transmission is cheap, fast, secure, and generally easy.

This is where I feel like I'm on shakier ground. Let's say the cost of transmitting a piece of information to one million people is X. Let's say the aggregate value of transmitting that information is Y. A rational person will only transmit that information if Y>X.

I posit that right now, in 2010, X is (for many people) close to zero, because communications technology has reached a point where it is basically free to communicate instantaneously with a wide number of people. So if X is zero, information with any positive Y value at all will be worth transmitting. Put differently, in this day and age there is no piece of information that is too worthless, trivial, or frivolous to communicate across great distances to many people. (For the record, I am a big fan of free speech and reducing barriers for communications. The advantages are obvious and manifold. Right now, though, I'm taking a look at the other side of the coin.)

One problem with this analysis is that characterizing information as valuable or frivolous begs two overlapping questions: First, valuable to whom? Second, how to measure value? I'm not really sure how to answer these. On one hand, I intuitively feel like society is made better off by the publication of information relevant to healthcare reform than by photographs of Paris Hilton in a compromising position. Yet the paparazzo who snaps the picture of Paris Hilton will almost certainly be paid more for his work than a Washington correspondent who gets a scoop on healthcare reform.

Additionally, I firmly believe that we are collectively worse off when people on any side of the political spectrum deliberately muddy the waters with disinformation. But while disinformation is not valuable to society, it may have value to the disseminator: it may give a politician a lead in the polls, or a talk radio host a ratings boost, or it may forestall regulation and thus boost a corporation's profits. So there's a real problem related to even the most approximate form of value calculation here. Maybe this is such a case-by-case, context-specific inquiry that it's impossible to impose a standard.

But leaving that aside for the moment: what if the cost involved in disseminating information has, in the past, played some sort of gatekeeper function, by keeping "worthless" information out, and ensuring that anything that was widely disseminated had some value? If that's true, and the cost of dissemination has dropped to almost zero, then there's no longer any kind of gatekeeper. Anybody can put anything out there, and we're constantly bombarded with nonsense - including, perhaps, this blog post.

So here's my final, non-rhetorical question: do the scope of our free speech laws still make sense? If we no longer have a cost-based gatekeeper, should the law play that role, by stepping in to redraw the line in a spot that makes more sense for the world we live in today?

The most cited example of the limits of free speech is that nobody has the right to shout "Fire!" in a crowded theater. I would argue that in this day and age, many of the communications that influence the course of national politics would fall into this same category. For example, when someone who knows better goes on national television or talk radio and announces that the President is an Indonesian-born Muslim who intends to use health care reform to create death panels, that is going to cause panic and confusion - much like shouting "Fire!" in a theater. Today the whole country, maybe even the whole world, is the theater. And the internet, along with a perpetually hungry 24-hour news cycle, has given more Americans than ever before the capacity to shout whatever they want. Perhaps the law ought to be more concerned with the consequences. To paraphrase the junior senator from Minnesota: we're entitled to our own opinions, but we're not entitled to our own facts.


  1. A hundred years ago, when the cost of disseminating information was not close to zero, yellow journalism abounded and drivel was plentiful. You're right that there is no longer the gatekeeper there once was, but the gatekeeper never served as a mechanism for keeping out misinformation - it simply blocked the spread of information by those who couldn't afford it. So while the amount of information out there has grown in recent decades, I wouldn't say there's necessarily been a major change (for better or worse) in the quality of the information.

    Still, I found most of your argument interesting and convincing until the "let's ban free speech" part. The fire in a theater analogy is wrongheaded, because there is a big difference between speech that causes imminent physical harm and speech that has less tangible consequences. And not to sound like a Con Law 1L, but the slippery slope argument is pretty compelling here: who says what kind of speech is misinformation, where do you draw the line between harmful and harmless speech, and what's stopping someone from characterizing harmless speech as harmful for political reasons? While perhaps in theory your argument may have some merit, in application it would be a disaster. "Facts are stubborn things," true, but I am not confident letting the political system determine which facts are true and which facts are not, especially when there are often complicating gray areas to worry about.

    Nonetheless, I understand your frustration at the manipulative press and how easily some people fall sway to it. And I commend you for having the testicular fortitude to go ahead and make the argument for curtailing speech.

  2. Hey, thanks for reading and for the thoughtful response.

    To clarify, and for the record: "Let's ban free speech" isn't part of my argument. I'm not advocating banning, or even curtailing, free speech. Right now these are just questions and ideas that I've been thinking about. When I ask whether the law should step in, I'm posing it as an actual, open question, not as a rhetorical question that I've already made up my mind about.

    Here's where I stand: I am certainly cognizant of the risks of curtailing free speech, but I'm still not convinced that it's impossible to draw the line somewhere else without destroying one of the principles that has done much to make this country great.

    Do you draw a distinction between the political system and the judiciary? Because the law doesn't have a problem with assessing the objective truth of statements in the context of defamation; maybe that's a doctrine that can be expanded.

    Re: yellow journalism, I did spend some time thinking about how to account for that. Those are some good points that merit a more complete response.