Jack Balkin Lectures on First Amendment in Today’s World

By Justin Pottle, Features Editor
Friday, March 25, 2011

Jack Balkin discusses the political implications of the information
age at the Memorial Chapel. JUSTIN POTTLE/FEATURES EDITOR Jack Balkin discusses the political implications of the information age at the Memorial Chapel.

As any person with a computer, satellite television, or a Facebook profile can tell you, we’ve entered an age dominated by information. In the past, people hand wrote letters; now, we email; they consulted libraries; we Google; suddenly, information is available anywhere, at anytime, on anything. As we watch the political and social implications of a rapidly changing world unfold on news blogs and the Twittersphere, we’re confronted with a host of new questions and new challenges for thinking about our own lives in the United States.

This is Jack Balkin’s territory. The Knight Professor of Constitutional Law and the First Amendment at Yale Law School, Balkin delivered this year’s Hugo L. Black Lecture, entitled “The First Amendment is an Information Policy,” at the Memorial Chapel on Wednesday, offering new insights into a public sphere dominated by Wikileaks, social media, and unprecedented forms of unrest.

Despite the recent upheavals in the way information is shared and delivered, government regulation of information flow and public discourse, what Balkin describes as “information policy,” is rooted in a time long before YouTube, the Internet, or even the Gutenberg Bible; as far back, in fact, as Ancient Persia.

Balkin argued that information policies have existed regardless of the emergence of technology, but, that, as we change the way we communicate, such policies have become increasingly important to our modern world. The modern state, essentially, is an information state, regardless of whether they’re authoritarian or democratic. Balkin attested nation-states could be information “misers” and “gluttons”—withholding and despotically controlling public knowledge in order to consolidate power—or information “philanthropists,” encouraging discourse and freely sharing data.

Balkin moved on to discuss the necessity of freedom of information in the context of democracy, specifically in the United States. In states where power rests with the people, political legitimacy requires vigorous discourse. In order to effectively wield democratic power, freedom of information is paramount and the emergence of the Internet has made such public deliberation that much easier. Yet, while some scholars and journalists have written that the Internet will make authoritarianism more difficult, Balkin suggested that this might not be the case. In fact, such a new information outlet could potentially make democracies less democratic. Similarly, Balkin noted the role of powerful corporations as a potential threat to the infrastructure of information accessibility.

Transitioning, Balkin asserted the need for thinking about our political systems and documents in terms of information and knowledge. As the title of his lecture suggests, the First Amendment is, in the Internet age, a freedom of information policy, not a policy expressing an individual right so much as a tool necessary for effective democracy—in itself an active process.

Balkin elaborated on two exemplary cases of the political implications of a new era of information: the recent revolutions in the Middle East, and the rise of file-leaking website Wikileaks. Revolutions, Balkin explained, require two main sentiments: grievance and courage. The feeling of persecution requires access to knowledge of the outside world and the understanding that things are not just bad, but bad for a specific reason. Similarly, the network connections provided by social media have bolstered revolutionary courage by helping young Middle Easterners realize what can be done and forming groups. With YouTube, protestors could broadcast their struggles to people across the world, cementing and proliferating a deep emotional element of the recent revolutions.

On the other hand, Balkin saw Wikileaks as an entirely new form of investigative journalism—one that jeopardized government control over knowledge and promoted freedom of information. Releasing hundreds of thousands of formerly undisclosed documents, Wikileaks has drawn the ire of many American politicians, but, as Balkin attested, such resentment and demonizing is deeply hazardous to our democracy. By giving citizens access to knowledge of the inner workings of their government, Wikileaks is not only protected under the First Amendment, but is a huge, revolutionary step forward for the use of technology in spreading the truth and holding the American government accountable for its actions.

Balkin criticized the severe demonizing of the actions of Wikileaks and Julian Assange by claiming that the United States is constricting its own democracy—an alarming repercussion of the Internet age. Thus, maintaining the freedom of information promised under the First Amendment, remains, in Balkin’s eyes, absolutely necessary to the preservation of American democracy.

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