with Volokh, Reynolds, and Balkin

A little more than two weeks ago, I moderated a panel at the Association

of American Law Schools Conference. Two of the panelists were famous bloggers

(so I’ll use their full names): Glenn

Reynolds and Eugene Volokh.

I had not selected the panel—Amitai

Etzioni had arranged the whole event—and I was so ignorant about

blogging that I failed to mention their blogs when I introduced these

two panelists. (Meeting them may partly explain why I got into this business.)

In any case, I have continued to think a lot about the discussion that


First of all, I’ve been thinking about public engagement. Professor

Volokh graduated from UCLA with a BS in computer science at the age of

15, and then worked as programmer for some time before he became a law

school professor. I asked him why he made the switch, and he explained

that he wanted to lead a "public life" by testifying, writing

opinion pieces for newspapers, etc. This kind of opportunity has a certain

appeal for me, too, although I’m not sure that I could break into the

mass media even if I tried—and I don’t try very hard. The reason

I don’t try is that I want to lead a different kind of "public life."

My goal is to help build and sustain public institutions or communities.

That is quite different from expressing opinions (even informed and interesting

ones) on broad matters of national or international concern. Institutions

don’t primarily need people to express opinions; they need organizational

work and products appropriate to their mission. Also, the institutions

within which someone like me can have an impact are necessarily limited

in scope. They either work in particular geographical locations or else

they deal with fairly narrow issues. Unless you’re the Pope or the president,

you can’t work through institutions and deal directly with all the great

issues of the world. So I think that there is a trade-off between addressing

a big audience and working within organizations. I seem to have chosen

the latter course.

Second, the panel was populated by First Amendment lawyers, and for them

the Internet is primarily interesting as a venue for cheap speech.

It’s extremely expensive to communicate through media like print or television,

but it’s cheap to operate a Website or to send out bulk emails. Thus the

Internet is supposed to be very good for freedom of speech. I find myself

unpersuaded. The more people communicate on the Internet, the more they

have to split the available audience, to the point that the average online

"speaker" (that’s me) probably talks to two or three people.

Being able to communicate to such a small number is no great advance over

the olden days, when you could put up a poster. Also, "cheap speech"

often turns into the blather of chat rooms. That is because people abuse

common spaces by dumping ill-informed or uncivil speech into them. So

I have realized that I am interested in the possibilities of the Internet

for "affordable speech," not "cheap speech." Given

the new digital technology, we can now create such goods as streaming

videos, interactive online maps, local newspapers, and structured deliberations.

These goods cost thousands of dollars instead of hundreds of thousands.

The result is a great advance for the First Amendment, as many more people

can participate in creating things of value. However, "affordable

speech" is not free—indeed, it’s out of the reach of most community

groups and non-profits. Which is why I am so interested in creating institutional

support for public uses of the Internet.