Citizen
Participation in
an Internet Era
by Russell L. Weaver, Professor
of Law & Distinguished University Scholar, University of Louisville, Louis
D. Brandeis School of Law, U.S.A
Citizen
participation in government has relatively recent roots. For centuries, Europe
was dominated by monarchs who offered ordinary citizens limited opportunities
to influence, governmental decision-making. Indeed, some monarchs claimed to
have been placed on their thrones by God, and also claimed that their actions and
decrees were manifestations of God’s will.[1]
Of course, if Kings are “divinely inspired,” and carrying out God’s will
through their actions, it is difficult to argue that ordinary people can or
should be allowed to question or criticize what they have done, or what God has
purportedly done through them.
With the dawning of the Enlightenment, the Divine Right of kings came under
intense scrutiny, and was ultimately rejected.[2]
The right of hereditary succession was also questioned.[3]
Over time, democratic principles began to take root as a much more legitimate
basis for the exercise of governmental authority. Illustrative is the U.S.
Declaration of Independence.[4]
In an effort to justify their decision to declare their independence from
England and the English king, the Framers of the Declaration implicitly
rejected the concept of Divine Right,[5]
and staked out a democratically-based approach to government : “Governments are
instituted among Men, deriving their just powers from the consent of the
governed.”[6]
Of course, most European nations evolved towards democratic principles over
time.
Having created a document that contained democratic principles, the drafters of
the Declaration then set out their reasons for revolting against the English
king. They began by discussing the purposes of government, including the idea
that citizens possess inalienable rights:
We hold these
truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed, That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles
and organizing its powers in such form, as to them shall seem most likely to
effect their Safety and Happiness.[7]
The Declaration
then went on to articulate a series of alleged abuses by the British king (some
of which had been committed by the British Parliament rather than by the king),[8]
and sought to justify the decision to sever ties with England.[9]
Despite the sweeping language of the Declaration of Independence, the United
States never fully embraced or implemented democratic principles. Indeed, many
in the founding generation were distrustful of governmental power.[10]
Illustrative were the views of Thomas Paine who argued that, “Society in every
state is a blessing, but government even in its best state is but a necessary
evil; in its worst state an intolerable one. »[11]
There may have been two separate and distinct reasons for citizen distrust of
government. First, the new Americans, having just revolted against the British
empire because of perceived abuses, were understandably fearful of powerful
governments.[12]
Second, many of the new Americans had emigrated to the American colonies in
order to escape religious persecution in Europe.[13]
In particular, they were seeking to escape “established” religions that
required everyone to support those religions, and aggressively persecuted those
who tried to practice other religions.[14]
As a result, even though the Declaration made clear that the power to govern
flows from the “consent of the governed,” the early Americans did not
unequivocally embrace democracy, and instead sought to limit and constrain
governmental power. In particular, , the Framers of the U.S. Constitution
embraced the ideas of Baron de Montesquieu, the French philosopher, who is
credited with articulating the doctrine of separation of powers, and they used
that doctrine as a way to limit governmental authority.[15]
They also provided that some governmental officials (e.g., the President and
the U.S. Senate) would not be directly elected.
This article
discusses how, in the context of the U.S. governmental system, the Internet has
enhanced citizen participation in governmental processes. As we shall see, the
Internet has enabled so-called “sousveillance” of the
government, given citizens the ability to actively participate in governmental
decision making processes, and provided them with the means to influence and
promote change in the political process.
An effective
and functioning democracy contains two essential elements. First, a free and
democratic society must be premised on the right to freedom of expression.[16] If
the citizenry is free to decide who they will vote for, and which ideas or propositions
to support, promote or oppose, they must be free to communicate their ideas
with each other, and to attempt to persuade others to support their positions.[17] Second,
the people must have access to information regarding the functioning of
government. It is difficult to have meaningful democratic participation, or
democratic accountability, when the government conceals information from the
public, and starves the public of information regarding its functioning.[18]
In the United
States, citizens have always had the ability to participate in government, but
their ability to do so has been limited by various considerations. For much of
human history, the U.S. government has not been particularly transparent or
forthcoming with information. Indeed, until the 1930s in the United States,
governmental officials could adopt rules and regulations without consulting
with the citizenry. They were not required to give citizens notice of what they
were thinking about doing, or a chance to comment or provide input on the
proposed action. Only with passage of the Administrative Procedure Act (APA) in
the 1930s could the citizenry access somewhat greater information, and only
then did it have an increased right to participate in governmental processes.[19] Under
the APA’s informal rulemaking processes, agencies were required to give people “notice”
of proposed regulations, and an opportunity to “comment” thereon.[20] When
agencies created “formal” rules, they were required to conduct trial-type
proceedings.[21]
Historically,
communication between citizens could also be difficult.[22] Of
course, throughout history, ordinary people could find it relatively difficult
to communicate with each other. Prior to the 1400s, speech technology was
relatively limited, and communication was necessarily slow, difficult and
inefficient. A Roman Emperor might wait days or weeks to hear the outcome of a
critical battle fought in a distant land. Without telephones, telegraphs or the
Internet, the “news” had to be transported to Rome by foot, chariot, horseback
or sea.
Ancient
methods of communication made it particularly difficult for ordinary
individuals to engage in speech or to convey political information between
themselves. Ordinary people could talk to others, and communicate, by giving speeches,
but oral communication was inherently limiting because it could only reach
small numbers or groups of people. People could also draft and circulate
letters, announcements and petitions. However, since there was no special
technology (other than quill pens and parchment) for preparing or reproducing
writings, early written documents had to be laboriously prepared by hand.
Moreover, because distribution methods were more limited, it was difficult for
ordinary people to mass disseminate writings once created. As a result, mass
communication was understandably difficult (if not virtually impossible) for
the average person.
The first
major breakthrough in speech technology occurred in the Fifteenth Century when
Johannes Gutenberg invented the first printing press. Essentially, Gutenberg
hit upon the idea of creating movable type that could be used to relatively
quickly (for the time) compose pages for printing.[23] Once
composed, these type-set pages could be inserted into a printing press and used
to mass produce copies of that page.
Gutenberg’s
invention was « transformative» Prior to his invention, most books were
created by monks using laborious hand-written methods. Since monks usually
wrote in Latin, and created primarily religious texts, their works were not
widely accessible to (or widely accessed by) the masses. Moreover, monks did
little to assist ordinary individuals in conveying their ideas (political or
otherwise). The printing press revolutionized communication because it allowed
non-clergy to mass produce written works, in their own languages, and
ultimately to communicate much more easily with their fellow citizens. The
ability to mass create written works was ultimately credited by some with
leading to the Renaissance, the Scientific Revolution, and the Protestant
Reformation.[24]
By 1499, some 2,500 European cities had printing presses, and some 15 million
books (representing some thirty thousand book titles) had been printed.[25]
As dramatic as the development of the printing press might have been, the early
presses were exceedingly slow and inefficient compared to the technologies that
followed. Moreover, the printing press did not necessarily enable ordinary
individuals to communicate with each other. In the broad sweep of history, as
technology has improved and advanced, private actors were able to limit or
control the ability of ordinary individuals to communicate with each other. Even
though Gutenberg’s invention of the printing press had a profound impact on
communication, it too was subject to gatekeepers. Even though the press had
revolutionary potential, it was expensive to create printed works.[26]
Moreover, few people had enough money to buy or operate their own operate
printing presses, and the English government affirmatively limited the number
of presses that were available. Although individuals could pay printing press
owners to print their ideas (assuming, of course, that licensing restrictions
did not prevent the publication), the cost could sometimes be high.[27]
Even individuals who could afford to pay printing costs confronted substantial
distribution costs that were beyond the means of ordinary individuals.[28]
As a result, even though the press revolutionized technology, the elite (e.g., governmental officials,
newspapers, universities and the rich) were the primary beneficiaries of the
new technologies, and were the ones who were able to use the printing press to
disseminate their ideas.[29]
Ordinary
individuals might be able to disseminate their ideas or opinions if they could
persuade the owners or editors of newspapers or magazines to publish them (e.g., some individuals might write op-ed
pieces or persuasive articles for newspapers). However, the editors (and
reporters) of newspapers served as gatekeepers who could chose whether or not to
publish the ideas of other people, and ordinary individuals did not have
assured access to the print medium in disseminating their ideas. If the
gatekeepers of the print media refused a publication request, the individual
would be left with only more primitive methods of communication. Of course, the
difficulty for the average individual is that gatekeepers were sometimes
interested in pushing their preferred political positions, and used their
newspapers or magazines to push those views, to suppress views with which they
disagreed.
The next major
advance in speech technology came in the nineteenth and twentieth centuries
with the development of electricity which led to invention of the telegraph,
and later to the development of broadcast technology, including both radio and
television. As noted, all three of these technologies were revolutionary in terms
of their speech potential. All of these technologies dramatically expanded
communication possibilities, and made it possible to quickly convey information
over long distances.[30]
With the development of these technologies, it became possible to send images
and content around the world very quickly, sometimes almost instantaneously. As
a result, it was possible to see and hear images of the First World War and the
Second World War, if not in real time, without having to wait for months.
Radio and
broadcast media were also accompanied by private gatekeepers, and all three
technologies had limited value for average people who could passively receive
media generated images, but who could not easily generate their own content.
Radio and television, in particular, suffered from this problem. Because of a
limited number of airwaves, as well as because of the sizeable expense
necessary to acquire, establish and operate a radio or television station, few
individuals could hold broadcast licenses.[31]
As a result, a non-licensee’s ability to access the air waves through an op-ed
piece, or even through an advertisement, was subject to the discretion of those
who did hold licenses.[32]
Although some broadcasters allowed private individuals to air op-ed pieces,
just as some newspapers published op-eds or letters to the editor, an
individual’s ability to communicate by air or in print has nonetheless been
subject to gatekeepers: the newspaper or broadcaster’s editor or producer who
could decide whether to permit the individual to air his/her views.
Given the
existence of media gatekeepers, the flow of information through broadcast
outlets has historically been limited by the views of publishers (although, as
we shall see, even that is changing). At various points in history,
broadcasters have stridently attempted to use their media to attempt to
influence public opinion, in much the same way that newspaper owners and
editors have done,[33]
and they have not served as honest brokers of information and news. On the
contrary, some have used their broadcast ability to air or discuss issues only
in ways that comport with their political or social beliefs. Of course, in a
free society, the broadcast and newsprint media can and should have
journalistic license and discretion, and therefore should have freedom to
report in the way they deem most appropriate. The point is that, during most of
the Twentieth Century, the average individual had few affordable or guaranteed
means of mass communication. As before the invention of the printing press,
individuals could give speeches, and could draft arguments and position papers.
Using typewriters and crude word processors as they became available, as well
as copy machines, it was easier for individuals to reach more people, but the
ability to reach others was limited by practical and technical considerations
such as distribution costs and logistical difficulties. Individuals could also
use shortwave radio technology, but shortwave suffered from a number of
limitations that limited its use and effectiveness.
During the
last quarter century, the nature of speech technology has changed dramatically.
For one thing, a variety of new media options have developed, including cable
television,[34]
and satellite radio and television. Cable and satellite technologies
dramatically increased the number of options available to viewers and
listeners, sometimes increasing station availability by hundreds of times.
Moreover, cable television has gained an increasingly large market share, now
approaching fifty percent.[35] But
even cable communication has been limited to the rich and the powerful, or
those who they allow to use their technologies. As important as the development
of cable and satellite mediums might have been, they did not dramatically
increase the ability of average individuals to access the media or participate
in freedom of expression. Even though some cable companies established local
access channels,[36]
the overwhelming majority of the hundreds of cable and satellite channels were
(and remain) controlled by media conglomerates.
The real
revolution in speech technology resulted from two other developments. The first
major breakthrough involved the invention of the personal computer (PC) because
it allowed individuals to quickly and easily produce high quality printed
content. No longer did an individual need to invest in an expensive printing
press, or pay the owners of printing presses, in order to create printed
documents. Indeed, as PCs became more sophisticated, it became possible for the
average individual to mass produce documents with high quality graphics.[37] The
second breakthrough involved the development of the Internet which allowed
individuals to quickly and easily distribute information, around the world,
with the click of a computer mouse.
The Internet
has led to a societal revolution, including a dramatic reshaping of society.
Moreover, it has created great possibilities for active citizen participation
in the mechanisms of government. Indeed, in the history of mankind, the
potential for participation is almost unprecedented. While the shift from
monarchy to “the consent of the governed” marked a dramatic shift in the basis
for government, the Internet creates the very real possibility that the “consent
of the governed” will actually come to fruition.
Professor
William Gilles is a strong advocate of the idea of “sousveillance”
– the idea that members of society can observe and attempt to influence the
actions of governmental officials.[38] He
describes sousveillance as involving the “increasing
tendency of the citizenry to watch, gaze, look and monitor, from the bottom,
the practices of their governments, or even more widely, everyone’s action
thanks to the democratization of ICT tools.”[39] In
the modern era, sousveillance is possible. As one
commentator noted, “Today, one environmental advocate with a 56k modem and a
$20 per month Internet account has more power to acquire information, to
communicate, and to participate than a whole staff of people did ten years ago.”[40]
Although sousveillance is possible in many different areas of the
law, the environmental area illustrates how the concept works.
There are a
number of websites, including governmental websites, that allow the public to
access environmental information.[41] For
example, the United States Environmental Protection Agency (EPA) maintains a
website entitled “Envirofacts”[42]
that is designed to provide “multi year information about stationary sources of
air pollution; large-quantity generators of hazardous wastes; treatment,
storage and disposal facilitieps; Superfund sites ;
facilities required to develop Risk Management Plans under the Clean Air Act;
facilities that submit Toxic Release Inventory reports characterizing
multimedia releases of toxic chemicals; and facilities required to report
wastewater discharges pursuant to the Permit Compliance System. »[43]
Some analysts tout Envirofacts as “one of the best
sources of environmental information on the Internet” because it is available
in multiple formats, is easy to and can be accessed though a “fill-in-the-
blank” form, and “ almost all of the information on the site is derived
directly from industry self-reporting to the U.S. EPA and/or its state
counterparts, pursuant to mandates imposed by law.”[44]
Individuals
can also access environmental information through private websites. For
example, the Right-To-Know Network[45] “offers
information from government files about chemical accidents and unpermitted
releases, chemical testing and federal civil enforcement action, and also
includes other information (e.g.,
census, environmental, and mapping information).[46] In
addition, Environmental Defense maintains the website Scorecard[47]
which publishes information in an effort to “encourage and sustain activism.”
Scorecard focuses on matters “like lead poisoning and runoff from animal lots,”
and includes “a report card ranking system by which states (and in most cases,
smaller geographic areas) and facilities are contrasted with each other.”
Another website is maintained by the Natural Resources Defense Council’s (NRDC)
which posts information on its website[48]
related to the EPA's Cumulative Exposure Project (CEP).[49] There
are other similar websites.[50]
Individuals
can also use the Internet to locate scientific and technical information that
will help them evaluate the technical environmental information that they find
on the EPA website or other sites.[51] For
example, the U.S. EPA’s Office of Air Quality, Planning and Standards provides
the Technology Transfer Network[52]
provides a “clearinghouse of the scientific and engineering information used to
generate EPA's multiple Clean Air Act activities.”[53]
The website includes the Maximum Achievable Control Technology (MACT),
including emissions and pollution control information reported by industry
sector, and the Ozone Transport Assessment Group, which documents “nitrogen
oxide (NOx)
transportation across the eastern United States.”[54] Of
course, individuals can also use search engine directories such as the Google
Web Directory which “offers numerous subcategories of websites under
‘environment,’ including ten sites on environmental ethics, seventy-six sites
on forests and rainforests, and 385 sites on biodiversity.”[55]
In addition to
accessing technical and scientific information on the Internet, individuals can
also access legal information through such sites as “Findlaw”
and the Government Printing Office’s “GPO Access.”[56] Findlaw[57] “provides
a wide array of useful legal documents and links to legal resources for
environmental advocates,” including the United States Code, the Code of Federal
Regulations and Federal Register
notices, as well as statutes and administrative codes for many states, and some
U.S. Supreme Court opinions and lower court information and opinions.[58] “Findlaw also provides links to websites for nonprofit legal
groups and information regarding the U.S. House of Representatives, Senate, and
Council on Environmental Quality.”[59] GPO
Access[60]
provides many of the same documents available on Findlaw,
including a collection of earlier U.S. Supreme Court opinions, as well as “congressional
bills and hearing reports, House and Senate reports and Congressional Records.”[61]
Perhaps as
important, if not more important, the Internet has enabled ordinary citizens to
organize in an effort to affect and control the broader political processes.
The Internet
has also enabled and empowered citizen activism. For the first time in history,
ordinary people are able to widely disseminate their ideas all over the world
and to do so instantaneously. Not only can individuals send e-mails and create
websites, they can also create chat rooms, list serves and blogs. They can also
send text messages, and communicate in lots of other (new) ways.
The impact of the Internet has been profound. In the environmental area, this
activism has been obvious. The Internet also offers public interest advocates a
new way to communicate with one another and to organize political
constituencies. For example, the Clean Air Network (CAN) is a Washington-based
organization that builds coalitions among a wide range of groups from across
the country in an effort to promote clean air.[62] The
Internet has also enabled the media to advocate for governmental responses to
climate change.[63]
For example, one blog on the New York Times website advocated in favor of the
climate change theory,[64]
and another blog discussed ways that ordinary people can combat climate change.[65] The
evidence suggests that some blogs have broad readership.[66] In
addition, there is evidence that governmental policymakers are aware of what is
being written in blogs.[67] For
example, governmental policymakers have critiqued information contained in
blogs (even though those policymakers might not have been altered or shifted by
the blogs).[68]
Even in China,
a country in which the government has engaged in aggressive censorship, the
Internet is beginning to significantly reshape society.[69] China
now has some 298 million Internet users, as well as some 70 million bloggers,[70]
and those bloggers have repeatedly found ways to avoid governmentally-imposed
Internet restrictions.[71] TheInternet has been vigorously employed by ordinary
Chinese people to pressure the Chinese government on environmental issues. For
years, the Chinese government has tried to downplay the existence of pollution
within the country.[72]
As a result, when airline flights are cancelled or delayed due to pollution,
airport authorities make no reference to pollution in their announcements, but
instead suggest that the cancellations are due to “weather conditions.”[73]
Likewise, when smog envelopes a city, the government characterizes the haze as “fog,
not fumes.”[74]
These efforts to silence communication are repeatedly being challenged. Although
Twitter feeds are blocked in China, U.S. Embassy pollution readings in China
are distributed through unblocked sites.[75] Likewise,
when the Chinese government claimed that air quality was improving,
disbelieving activists purchased air quality monitors, and began posting
environmental readings on the Internet.[76] Environmental
activists in other Chinese cities did likewise.[77]As
pollution data began to mount, Chinese citizens began to demand environmental
improvements, and air quality standards were heightened.[78] In
one instance, a video about the environment went viral in China.[79]
The video received millions of hits within the space of a week,[80]
and was ultimately banned by the Chinese government,[81]
but not before it created a national stir over Chinese environmental issues.[82]
The Internet
has profoundly influenced communication, and has also enabled a new era of
active citizen participation in governmental decision-making processes. This
enabling has occurred in many different areas. Not only has it enabled citizens
to gather information regarding governmental decision-making processes
(Professor William Gilles’ idea of “sousveillance”),
but has enabled citizens to participate in those processes. In addition, it has
given citizens the ability to organize in an effort to affect and control
political processes and governmental decision-making. In other words, the
Internet has the potential to profoundly transform society and government.
The Internet
is not without its detractors or adverse impacts on citizen participation in
governmental processes. It can be used not only by environmental activists, but
also their opponents, and can be both a source of legitimate information and
misinformation.[83]
As one commentator noted, although “blog after blog denies climate change is a
problem or that people's actions have anything to do with it,” but often, “there's
no basis behind what is reported.”[84] In
one instance, computer hackers sought to undermine claims regarding climate
change.[85] They
did so by breaking into a computer server at a climate research center in
Britain, stealing correspondence between U.S. and British researchers, and
claiming that the correspondence showed that the case for climate change had
been overstated and “attempted to manipulate data.”[86]
Disclosure of the information created a furor because it was released only
weeks before the Copenhagen climate change conference.[87]
The Internet
has also enabled citizen participation in governmental decision-making
processes such as permitting, rulemaking, and legislation. For one thing,
individuals can now use the Internet to ascertain information regarding ongoing
administrative processes. For example, the EPA's rulemaking process can be
accessed through the web.[88] On
a local level, many states and regional EPA now place online draft permits,
public notices, final permits, summary documents, and point-of-contact
information online.[89]
For example, in Illinois, air permits are posted on a single website.[90]
[1] See Seminole Tribe of Florida v. Florida,
517 U.S. 44, 96 (1996) (noting that “centuries ago” there was a “belief that
the monarch served by divine right”).
[2] See Thomas
Paine, Common Sense 6 (1776) (Dover ed. 1997) (“There is something
exceedingly ridiculous in the composition of monarchy; it first excludes a man
from the means of information, yet empowers him to act in cases where the
highest judgment is required.”). Thomas Paine, who was British born, but who
was in the American colonies during the Revolutionary period and who wrote
extensively, expressed serious reservations regarding the British monarchy’s
claim to rule by Divine Right: “no man in his senses can say that their claim
(the British monarchs’ claim to the throne) under William the Conquerer is a very honorable one. A French bastard landing
with an armed banditti, and establishing himself king of England against the
consent of the natives, is in plain terms a very paltry rascally original. – It
certainly hath no divinity in it.” Id.,
at 13-14.
[3] Even
if the British monarchy had been legitimately established, Paine had grave
reservations regarding the desirability of granting the monarchy the right of
hereditary succession: it “is an insult and an imposition on posterity. For all
men being originally equals, no one
by birth could have a right to set up
his own family in perpetual preference to all others for ever.
. . . Most wise men, in their private sentiments, have ever treated hereditary
right with contempt; yet it is one of those evils, when once established is not
easily removed . . .” Id. at 12-13.
[4] U.S. Declaration of Independence (July
4, 1776).
[5] See Seminole Tribe of Florida v. Florida,
517 U.S. 44, 96 (1996) (noting that “centuries ago” there was a “belief that
the monarch served by divine right”).
[6] Id.
[7] Declaration of Independence, supra.
[8] Id. (“Such has been
the patient sufferance of these Colonies; and such is now the necessity which
constrains them to alter their former Systems of Government. The history of the
present King of Great Britain is a history of repeated injuries and
usurpations, all having in direct object the establishment of an absolute
Tyranny over these States. To prove this, let Facts be submitted to a candid
world. He has refused his Assent to Laws, the most wholesome and necessary for
the public good. He has forbidden his Governors to pass Laws of immediate and
pressing importance, unless suspended in their operation till his Assent should
be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of
people, unless those people would relinquish the right of Representation in the
Legislature, a right inestimable to them and formidable to tyrants only. . . . He has dissolved Representative Houses
repeatedly, for opposing with manly firmness of his invasions on the rights of
the people. . . .”).
[9] Id. (“When in the
Course of human events, it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to assume among the
powers of the earth, the separate and equal station to which the Laws of Nature
and of Nature's God entitle them, a decent respect to the opinions of mankind
requires that they should declare the causes which impel them to the
separation.”).
[10]See Ralph Ketcham, The
Anti-Federalist Papers and the Constitutional Convention Debates: The Clashes
and Compromises That Birth to our Government xv (1986) (“Uncertain that
any government over so vast a domain as the United States could be controlled
by the people, the anti-federalists saw in the enlarged powers of the central
government only the familiar threats to the rights and liberties of the people.”).
[11] See Paine, supra note 2, at 3 (“Society in every state is a blessing, but
government even in its best state is but a necessary evil; in its worst state
an intolerable one; for when we suffer, or are exposed to the same miseries by
a government, which we might expect
in a country without government, our
calamity is heightened by reflecting that we furnish the means by which we
suffer.”).
[12] See, e.g., U.S. Declaration of
Independence (July 4, 1776) (listing grievances against the English King
(although, in fact, some of the offenses had been committed by the British Parliament
rather than the King)).
[13] See Everson v. Board of Education, 330
U.S. 1, 8-9 (1947) (“A large proportion of the early settlers of this country
came here from Europe to escape the bondage of laws which compelled them to
support and attend government favored churches. Catholics had persecuted
Protestants, Protestants had persecuted Catholics, Protestant sects had
persecuted other Protestant sects, Catholics of one shade of belief had
persecuted Catholics of another shade of belief, and all of these had from time
to time persecuted Jews.”).
[14] Id.
[15] Baron de Montesquieu, The Spirit of Laws
151-152 (Cosimo Edition 2011).
[16] See C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L. Rev. 964 (1978); Robert H.
Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L.J. 1
(1971); Thomas I. Emerson, Toward a
General Theory of the First Amendment, 72
Yale L.J. 877 (1963); Alexander Meiklejohn, The First Amendment as an Absolute,
1961 S. Ct. Rev. 245; Russell L. Weaver, Understanding the First
Amendment 10-13 (5th ed. 2014).
[17] See id.
[18] See John M. Ackerman & Irma E.
Sandoval-Ballesteros, The Global
Explosion of Freedom of Information Laws, 58 Admin. L. Rev. 85, 89 (2006) (“The current rules on open
government are for the most part mainly a question of public hygiene. This
regulation is intended to increase the transparency of public administration,
with a view to better democratic control and social accountability of
government.”); Katherine McFate, Keynote Address: The Power of an Informed Public, 38 Vt. L. Rev. 809, 825 (“Access to information
is an important tool of democratic accountability. Governments need information
to provide citizens with protection from harmful products and practices.
Citizens need to understand what their government is doing in their name.”).
[19] 5
U.S.C. § 553, 556-557.
[20] 5
U.S.C. § 553.
[21] 5.
U.S.C. § 556-557.
[22] See Russell L. Weaver, From Gutenberg to the Internet: Free Speech,
Advancing Technology and the Implications for Democracy (2013).
[23] The
printing press changed the equation by making it possible for individuals to
mass produce written works. See
Rogelio Lasso, From the Paper Chase to
the Digital Chase: Technology and the Challenge of Teaching 21st
Century Law Students, 43 Santa Clara
L. Rev. 1, 4 n.2 (“Printing changed every aspect of the human
condition--from thinking, learning, and language, to science, religion, and
government.” “The 17th century became known as ‘the century of genius’ in large
part due to the explosion of creativity and new ideas fueled by printing.
Creativity is often the result of a combination of intellectual activities. For
example, reading two books on separate topics and combining their themes in one
mind produces a creative interaction. Increased output of printed works led
first to the combination of old ideas, and later to the creation of entirely
new systems of thought.”); Peter Linzer, From
the Gutenberg Bible to Net Neutrality – How Technology Makes Law and Why
English Majors Need to Understand It, 39 McGeorge L. Rev. 1, 4-5 (2008) (“Some time around 1450, building on
existing machines, Johannes Gutenberg invented the printing press and movable
type. Because of the printing press, mass communication became more than
talking to a crowd or a church congregation.”).
[24] See George Paul &
Jason Baron, Information Inflation: Can
the Legal System Adapt?,
13 Rich. J. L. & Tech. 1, 8
(2007) (“There has been only one transformative advance in the original writing
technology. Circa 1450 Johannes Gutenberg invented the movable type printing
press, which dramatically lowered the cost of producing written records. The
printing press allowed mass production of information and thus contributed to
the Renaissance, the Scientific Revolution, and the Protestant Reformation.”).
[25]
Joseph Karl Grant, Shattering and Moving
Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will, 42 U. Mich. J. L. Reform 105, 111-112
(2008).
[26] See Peter K. Yu, Of Monks, Medieval Scribes and Middlemen,
2006 Mich. St. L. Rev. 1, 13.
[27] See Adrienne J. Marsh, Fair Use and New Technology: The
Appropriate Standards to Apply, 5 Cardozo
L. Rev. 635, 635 n.1 (1984) (concluding that Gutenberg’s invention of
the printing press “brought books and the written word to the masses.”).
[28] See Markenzy Lapointe, Universal
Service and the Digital Revolution: Beyond the Telecommunications Act of 1996,
25 Rutgers Computer & Tech. L.J. 61,
80 (1999) (“When Gutenberg developed the first moveable printing press and
published his famous Bible in 1445, a communications revolution was greatly
anticipated. However, this momentous invention failed to immediately ignite the
expected information revolution. For centuries, books were available primarily
to the rich, the academics, and the clerics. It was not until the creation of
institutions like public libraries, which made books more accessible and the
technological enhancement of the printing press, which allowed the production
of books to become more affordable, that a true revolution finally began to
take place.”).
[29] See Peter K. Yu, Of Monks, Medieval Scribes and Middlemen,
2006 Mich. St. L. Rev. 1, 11 (“The initial demand for printed books came from
universities, the clergy, monasteries and convents, the Civil Service, the
feudal nobility (and their ladies), lawyers and physicians, and schoolboys and
their teachers. There was also “a wide market for prayer-books, missals,
almanacs, calendars, prognostications, broadsides, and other printed matter.”
In fact, the demand and supply for printed materials varied considerably from
one geographical region to another.”).
[30] See Red Lion Broadcasting Co. v. FCC, 395
U.S. 367 (1969).
[31] See id. (commenting on
the scarcity of broadcast licenses).
[32] See Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94 (1973).
[33] See Jerome A. Barron,
Access to the Media – 1967 to 2007 and
Beyond: A Symposium Honoring Jerome A. Barron’s Path-Breaking Article “Access
Reconsidered,” 76 Geo. W. L. Rev.
826, 832 (2008).
[34] See Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622 (1994) (discussing the Cable Television Consumer Protection and
Competition Act of 1992).
[35] See Brian Stelter, Cable
Networks Trying to Build on Their Gains in Ratings, N.Y. Times, May 26,
2008.
[36] See John J. O’Connor, How Much Access Have We to Public Access?; Television, N.Y. Times, June 3, 1973.
[37] See George Paul
& Jason Baron, Information Inflation:
Can the Legal System Adapt?,
13 Rich. J. L. & Tech. 1, 9 (2007): [Q]uite recently there has been an
evolutionary burst in writing technology - a jagged punctuation on a 50
century-long sine wave. A quick succession of advances clustered or synced
together, to emerge into a radically new and more powerful writing technology.
These include digitization; real time computing; the microprocessor; the
personal computer, e-mail; local and wide-area networks leading to the
Internet; the evolution of software, which has “locked in” seamless editing as
an almost universal function; the World Wide Web; and of course people and
their technique. These constituents have swirled into an information complex,
now known as the “Information Ecosystem.” In such a system, the whole exhibits
an emergent behavior that is much more than the sum of the parts. Critically
for law, such systems cannot be understood or explained by any one person. As a
result, writing has now grown into something akin to a new “form of life.”
Because of its long-standing stasis and the importance of writing as a global
technology, such a development may legitimately be said to herald a new phase
of civilization.
[38]
William Gilles & Irene Bouhadana, From the Right to Be Let Alone to the Right
to Be Forgotten: How Privacy Is Moving in the Collecting Data Age, in Russell L. Weaver, Steven I. Friedland, William Gilles & Irene Bouhadana,
Privacy in a Digital Age: Perspectives From Two Continents ___ (2016)
(forthcoming).
[39] Id.
[40] See Keith Harley
& Holly D. Gordon, Public
Participation and Environmental Advocacy in the Internet Era, 16 Nat. Resources & Environment. 296
(2001).
[41] See id.
[43] See Harley &
Gordon, supra note 40, at 297.
[44] Id.
[46] See Harley &
Gordon, supra note 40, at 297.
[48]
www.nrdc.org/air pollution/cep
[49] See Harley &
Gordon, supra note 40, at 297.
[50] Id. (“Perhaps the
best site for obtaining quality, understandable information about potential
hazards posed by different chemicals is offered by the Agency for Toxic
Substances and Disease Registry (ATSDR), a division of the Centers for Disease
Control.”).
[51] Id.
[53] See Harley &
Gordon, supra note 40, at 297.
[54] Id.
[55] Id.
[56] Id. at 297-298.
[58] See Harley &
Gordon, supra note 40, at 298.
[59] Id.
[61] See Harley &
Gordon, supra note 40, at 298.
[62] Id. at 298.
[63] See Daniel Altman, Blogging and Thinking About the Big Issues: Managing Globalization,
International Herald Tribune 12 (May 30, 2007).
[64] See Eric Berger, BLOG: SciGuy: Climate Olympics: Two Compete
for the Grandstanding Medal, International New York Times (Nov. 8, 2015).
[65] See Bettina Wassener, A Fight That Doesn’t Need Heroes,
International New York Times 19 (Apr. 8, 2010).
[66] See Daniel Altman, Blogging and Thinking About the Big Issues: Managing Globalization,
International Herald Tribune 12 (May 30, 2007) (“When an editor suggested
finding out why so few women left comments by taking the subject on in a post,
female ''lurkers'' immediately made their presence known with varying degrees
of indignation.”).
[67] Id.
[68] Id. (“While
commenters butted heads and shared their knowledge, was anyone in high places
reading? Apparently so, as Stephen Adams, a spokesman for Peter Mandelson, the European
Union's commissioner for trade, took issue with the headline ''Mandelson:
Repent, repent!'' He had read it as ''Mandelson, repent, repent!'' After a
short offline discussion of punctuation, Adams contributed a substantive
response to the blog.”).
[69] See Andrew Jacobs & Jonathan Ansield, For China, “Stability
Above All”: State Pours Resources Into Monitoring Critics and Quelling Dissent,
The International Herald Tribune, at 6 (Dec. 10, 2010).
[70] See Anne Stopper, China Appears to Tighten Internet Access Around Tiananmen Anniversary,
PBS News Hour (June 1, 2009).
[71] Id.
[72] See Edward Wong, Anger Rages as Beijing Chokes in a Dark Cloud: Unreported Levels, The
International New York Times 1 (Dec. 7, 2011).
[73] Id.
[74] Id.
[75] Id.
[76] See Sharon LaFraniere, Activists Crack China’s Wall of Denial
About Air Pollution, The New York Times, at A4 (Jan. 28, 2012).
[77] Id.
[78] Id. (The Chinese
government decreed “that about 30 major cities must begin monitoring the
particulates this year, followed by about 80 more next year. The Ministry of
Environmental Protection also promised to set health standards for such fine
particulates ‘as soon as possible.’ “).
[79] See Edward Wong, China Blocks Web Expose on its Air Pollution, International New York
Times 1 (Mar. 7, 2015).
[80] Id. (“Under the Dome,”
a searing documentary about China's catastrophic air pollution, had hundreds of
millions of views on Chinese websites within days of its release one week ago.”).
[81] Id. (“Then on Friday
afternoon, the momentum over the viral video came to an abrupt halt, as major
Chinese video websites deleted it under orders from the Communist Party's
central propaganda department.”).
[82] Id. (“The startling
phenomenon of the video, the national debate it triggered and the official
attempts to quash it reflect the deep political sensitivities in the struggle
within the bureaucracy to reverse China's environmental degradation, among the
worst in the world.”).
[83] See Lindsay Peterson, Climate Scientist: Don’t Trust Uninformed
Blogs, Tampa Tribune (Feb. 12, 2010).
[84] Id.
[85] See David Stringer, Computer Hackers Leak E-mails, Stoke Global Warming Debate, Seattle
Times A9 (Nov. 22, 2009).
[86] Id.
[87] Id.
[89] See Harley & Gordon, supra note 40.
[90] Id.