Free Speech Ends Where Free Press Begins


I do not remember the world before the Internet and the Web. The Web is HTTP: Hypertext Transfer Protocol. I know that the Internet is much more than just the Web: Email, IRC, XMPP, and other protocols. But for most people, the two have become synonymous.

The phrase "transfer protocol" means that the Web is about transferring data from one computer to another. In practice, this means from a computer controlled by a publisher to a computer controlled by a reader. "Hypertext" means that the Web is concerned with the publishing, transferring, and display for reading of "hypertext" documents.

Intuitively, that means augmented textual documents. Images, tables, audio, and video are all good options for enriching a textual document. The most important augmentation, however, is the "hyperlink".

A hyperlink allows one document to reference another. A reader can follow hyperlinks from one document to the other, and, in doing so, access that other document. If you were to look at a graph of links from document to document, you would easily see the origin of the metaphor contained in the name "the Web".

A single document is referred to as a web page and a collection of documents as a web site. A web site has a single publisher. This publisher determines what to include and what to exclude from the site. Editorial discretion to publish, not to publish, and to unpublish all lay with the publisher of a document rather than with its author.

"Free Press" is precisely this right of the publisher to editorial discretion. In a society with freedom of the press, the government cannot impose its own editorial judgment upon a publisher.

Stone wall at Newseum in D.C. with etched quote: If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Stone wall at Newseum in D.C. with etched quote.
Photograph: © Copyright 2019 William Pearson

In contrast to Free Press, "Free Speech" is the right of the author to think and to speak and to write what they wish. For the reader, both of these rights are intertwined. These rights allow all to hear and to read and to participate in a marketplace of ideas. But for the author and for the publisher, these rights are distinct and separate.

The separation between author and publisher is one that goes back only to the invention of the printing press. Before that, to author a document was to write an original document. Anyone could then copy that document, if they could write, but there are very few documents which are worth the labour to write a second time by hand.

It is the printing press which automated this previously manual task of copying documents. Someone who controlled a printing press had control over what the press did and did not print, and therefore control over what the press published. "Press" is, of course, a very literal term that refers to the pressing of an inked metal plate on to paper.[1]

The Web is an electronic printing press. Its unit economics are a revolution for publishing. Anyone can buy a domain name on the Internet. Anyone can buy web hosting to publish their web site. There are even solutions that offer free domain names and free web hosting to web publishers.

As newspapers represent institutions with control over the Press, larger web sites represent institutions with control over the Web. Many larger web sites exploit the separation between author and publisher to encourage authors to submit "user-generated content" (UGC).

This phenomenon is analogous to letters to the editor, but with editorial discretion exercised only after publishing rather than before. A question then arises as to the validity of exercising publisher discretion after publishing. When the unit economics are high, then the cost of editorial decisions made up front is low when compared to the cost of reprinting.

However, the unit economics for the Web are low. The cost of editorial decisions is high when compared to the cost of publishing. It is only natural then to publish first and review later.

There is some risk associated with the decision to publish something. Even if Free Press were absolute, Press is fundamentally about making copies and therefore it is about copyright.

The original author is the one who holds this private right to make copies, at least initially. The original author may sell this right. Regardless of who holds it, the publisher must have their permission to publish their material. This copyright gives power to the author as a balance against the inherent power possessed by the publisher.

A web site that publishes primarily UGC subverts this power structure. The publisher of the UGC site demands that authors take no or little compensation in exchange for only limited exercise of editorial discretion, and always on a post-publishing basis.

The institutional press then piggy backs on this subversion when they seek to use material from these UGC sites for their own published work. With the unit economics involved and the price already set at or near zero, many authors agree to allow the institutional press to use their work without any compensation.

This subversion of copyright is but one part of the problem with UGC web sites.

Not every author likes or agrees with the exercise of editorial discretion by UGC web sites after they have already published material. This is plainly a case of the author's Free Speech right ending where the publisher's Free Press right begins. It is possible to see this realization play out in real time when someone goes from author on a UGC web site to publisher of a UGC web site.

The author most threatened by editorial discretion is the author who is most likely to be unpublished. A publisher may exercise their editorial discretion for any number of reasons. Spam and abuse are not the only or even the most significant categories of unpublished content.

When an author claims that editorial discretion infringes on their Free Speech, it is not enough to explain that that is not what Free Speech means. Another phrase — Free Press — is necessary to express and defend the rights of the publisher.

The obvious solution to this conflict between author and publisher is for the author themself to publish their work. The Web has lowered and eliminated the economic barriers to self-publishing. Improvements to content management software and web site publishing software more broadly have steadily eliminated the technological barriers as well.

But social and cultural barriers to self-publishing remain. If the author writes something and publishes it themself, will anyone read it? The institutional power of the UGC web sites is brought to bear here, just as the institutional power of newspapers and magazines is brought to bear on self-published pamphlets and zines.

A solution to the conflict between author and publisher that abridges editorial discretion is not feasible. If the UGC web sites had no editorial discretion, then all manners of spam, abuse, and other unwanted content would proliferate on their sites. A solution that requires the exercise of editorial discretion before publishing is not feasible either. The current scale of UGC web sites makes that form of moderation impractical.

For authors who do not wish to self-publish, perhaps they will sort themselves with publishers who like their content and vice versa. This may work for a time. But web publishing requires an on-going commitment where print publishing does not.

With traditional print media, once the publisher has printed the material, then the relationship can end. If the author retains their copyright, they can get another publisher to print another run. If not, then the publisher retains discretion over when and if to print another run of the material.

But unlike print, the Web is a medium that is online. Each time a reader wants to see a document, the reader requests it from the publisher. If the editorial taste of the publisher changes, then a publisher may choose to remove an author's material from its site.

Only self-publishing can protect against this risk. But self-publishing has an inherent trade off. The author who self-publishes trades the risk of a third-party publisher pulling their work for the risk that they may no longer be able to keep their site running and their work published on it.

In this way, the Web is a medium that is both ephemeral and indelible. It is ephemeral because publishers must affirmatively act to keep material published. It is indelible because each reader gets their own copy of the material which they can choose to save or to discard.

If this articles makes you want to get started publishing on the Web yourself then the IndieWeb community site has a lot of great resources to help you.





1. If you are interested in paper and printing, then it is worthwhile for you to visit the Robert C Williams Museum of Papermaking on the Georgia Tech campus in Atlanta.