The Chronicle Review

The Future of Free Speech

Christophe Vorlet for The Chronicle Review

November 14, 2010

In 1930, a man named Daniel Lord wrote a Production Code for American motion pictures. He included specific prohibitions: "Dances suggesting indecent passions," he wrote, "are forbidden." But Lord's general point was to ensure that American films didn't glorify that which was morally wrong and that they always had a happy ending. Movies would be a source of uplift. "No picture shall be produced," he wrote, "that will lower the moral standards of those who see it."

Lord wasn't a government censor. Rather, he was a Roman Catholic priest dedicated to the elimination of "filth." Nonetheless, his code—with all of its ambitions of thought control—became one of the most effective regulations on speech in American history, more potent than any law or government program. Lord was successful in large part because the industry imposed his code on itself. The consolidation of the film industry in the 1930s concentrated power in a handful of studios, making them vulnerable to boycotts, ultimately leading to acts of self-censorship.

Americans, who have long mistrusted government, are acutely aware of and sensitive to public censorship—more so, perhaps, than any other nation. There is a strong First Amendment tradition in the courts. But Americans tend to be much less concerned with the danger of private censorship. That's too bad, because the greatest dangers to free speech in the future will come not from government interference but from speech monopolists. That has been true for much of the 20th century, and while it seems hard to imagine now, it could become the fate of the Internet.

Before we get to the future of the Internet, let's go back and see what made Lord's 1930 speech code so effective. Various censors—government and private—had been interested in controlling the content of film since the medium became popular in the 1900s. But the results were mixed. The film industry was disaggregated. There were hundreds of producers and thousands of independent theaters, and men like Lord realized that trying to police so many producers in so many places was futile.

All of that changed in the 1930s. By then, the major studios, which had moved from New York to Hollywood, had integrated production facilities and theater chains, and ruled the once unruly film industry. These studios were vastly more efficient, borrowing methods from Andrew Carnegie and Henry Ford. They produced longer films of better quality, like King Kong (1933) and Gone With the Wind (1939). The integration of every aspect of film production—from the theaters to the actors and directors—made possible a new era of motion pictures.

Industrial consolidation, in short, gave rise to the classic Hollywood blockbuster. But it also greatly reduced the number of people necessary to control the content of American film. That, in turn, made the industry vulnerable to directed boycotts—which it suffered, at the hands of the "Legion of Decency," a Catholic advocacy group organized to put censorial pressure on the American film industry. The boycotts succeeded, and the studios agreed that every American script would be turned over to a Catholic censor named Joseph Breen for review before production—what the law calls a "prior restraint." As Liberty magazine wrote in 1936, this arrangement left Breen with "more influence in standardizing world thinking than Mussolini, Hitler, or Stalin."

The impact of industrial consolidation on speech was not confined to the film industry. In the 1920s, American radio was extraordinarily diverse, a medium, not unlike the early Internet, where it was easy to establish a presence—and hundreds of people did. "A list of all that can be heard with a radio receiver anywhere within 300 miles of greater New York would fill a book," Radio News reported in 1922. Amateurs, churches, motorcycle clubs, and universities owned the majority of stations, and radio was how, for example, jazz music first reached white audiences.

By the 1930s, however, most of the nation's radio stations, with the help of the federal government, belonged to one of two networks: NBC or CBS. They delivered higher-quality programming, thanks in part to the advent of advertising. In fact, most radio content was actually produced not by the networks themselves but by advertising firms, who created the concept of "entertainment that sells." The notion of purely public broadcasting would not return to radio until the 1960s.

This may sound like ancient history, but it's very relevant today. We are living in an age where a decreasing number of firms serve as a kind of Master Switch over speech on the Internet—think Google, Facebook, the cable industry, and the major telephone carriers.

These firms are already under strong pressure to censor from powerful governments, religious groups, political parties, and essentially any outfit with a reason to want information suppressed. The Turkish government, for example, demands that Google take down mockery of the nation's founder, not just in Turkey, but everywhere. The Church of Scientology has never stopped demanding of anyone who will listen to remove criticism of its practices from the Internet, usually claiming copyright infringement.

On a daily basis, as we speak, Internet companies are making speech-related decisions more important than those made by any government. YouTube, for instance, has to constantly decide what to censor. Generally, it blocks copyright infringements on request and pornography without request, and it listens to some but not all of the demands of governments. Facebook, for its part, has been tested less, but it has been willing to delete user-generated content at the request of governments, like Pakistan and Bangladesh.

This is what speech management looks like in 2010. No one elected Facebook or YouTube, and neither one is beholden to the First Amendment. Nonetheless, it is their decisions that dictate, effectively, who gets heard. What's the answer? There is no easy answer. Monopolies like Google, Facebook, and Hollywood have certain advantages: That's why they tend to come into existence. That means the American public needs to be aware of the dangers that private censors can pose to free speech. The American Constitution was written to control abuses of power, but it didn't account for the heavy concentration of private power that we see today. And in the end, power is power, whether in private or public hands.

Tim Wu is a professor of law at Columbia Law School. His new book, The Master Switch: The Rise and Fall of Information Empires, was just published by Knopf.