Editor’s Note: Victoria D. Baranetsky is a free speech attorney and currently works as General Counsel at The Center for Investigative Reporting. She is also an affiliate at Harvard’s Berkman Klein Center for Internet and Society and a fellow at the Tow Center for Digital Journalism at Columbia University. The views expressed in this commentary are her own. This is the next installment in the CNN Opinion series on the challenges facing the media, under attack from critics, governments and changing technology.
In a famous 1927 concurrence, Supreme Court Justice Louis Brandeis distinguished the purpose of free speech as helping humans to develop and nurture their capabilities to have meaningful discourse. Brandeis wrote: “The greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”
His worry was prescient. The news business has never been easy, but today the competition for an engaged audience is more difficult than ever before due to an unexpected rival: too much information.
In 2013, more data had been created in the previous two years than in the entire previous history of the human race, according to SINTEF, a leading Norwegian research center. Since then, this number has exponentially increased, further diverting our attention and further underscoring the importance of the press, the gatekeepers of the First Amendment.
The problem: Information overload and technology
Every day the world creates 2.5 quintillion bytes of data – much of which is created passively through technology like medical and home devices, web crawling, surveillance cameras and apps that track your movement. In addition, these new tools help us not only to create data, but access it. We can view terabytes of information from any place at any time. According to one study, smartphones, which now outnumber people on Earth, are carried 22 hours a day by most people who own them.
Researchers have learned that this access to swells of information comes at a cost. Every time we click on a link, check a tweet or write a post, we give away some of our finite attention. In fact, the mere presence of a smartphone resting silently in a pocket or on a desk within view may impair our ability to think and reason. Put simply, our attention is spread too thin.
The solution of silence
In this noisy economy of clickbait and misinformation, it is imperative to ask how we can encourage the informed and engaged citizenry that Brandeis imagined.
The panacea may be simpler than it seems: silence. As philosopher Thomas Carlyle famously once said, while speech is silver, silence is gold.
Carlyle wrote in Sartor Resartus in 1836, “Silence is the element in which great things fashion themselves together.” Carlyle argued that too much speech, and by extension the noise of information overload, can suppress focused, productive thought.
To bring Carlyle’s analysis into the present, silence, especially in today’s oversaturated market, can help create an engaged citizenry. But silence is not relegated to individuals sitting down for 20-minute meditation sessions. It also occurs in the types of information we ingest.
For instance, trained journalists encourage silence through publishing carefully curated pieces. By making redactions, edits and cuts, journalists’ curation removes noisy edges, distractions and unnecessary clutter. Thoughtful journalistic work instills more space to think, or, at the very least, eliminates some of the distractions.
History of silence
However acute it may be in our environment of listicles and fake news, our silence deficit is not an entirely new phenomenon.
In 1995, French philosopher Gilles Deleuze wrote in his work “Negotiations,” “we’re riddled with pointless talk, insane quantities of words and images.”
Nearly twenty years later, amid the rise of the Silicon Valley giants, Columbia Law School professor Tim Wu reintroduced the problem in his book “Attention Merchants.” Wu writes about the modern-day internet as “thoroughly overrun by commercial junk,” and describes “something of a pandemic, swallowing up more and more people and leaving them with scars of chronic attention-whoredom.”
But never fear, there is hope. The principles of free expression and freedom of the press can be exercised to protect the right to silence. Even though our culture seems to privilege an overabundance of speech and our public forums are currently geared to clutter our minds, it is important to note that the right to silence is an essential principal squarely protected under the First Amendment. Indeed, the right to remain silent in our thoughts is perhaps even more important than the right to pollute the infosphere with misinformation.
Admittedly, for centuries, “freedom of speech and press” was often discussed in terms of the right to speak freely – as John Milton eloquently argued in his 1644 work, “Areopagitica,” and John Stuart Mill famously observed in his groundbreaking 1859 publication, “On Liberty.” But as academics like law professor Daniel Solove and others remind us, speech does not just occur on soapboxes, but also in private conversations, silent corners, and even the privacy of our own minds, where people are able to think clearly and engage in meaningful discourse.
The Supreme Court clearly articulated this sacrosanct principle of the right to silence in West Virginia Board of Education v. Barnette, a 1943 case invalidating a compulsory flag salute. At issue was whether a student could stand in silence during the salute or an “involuntary affirmation could be commanded.” The Court found that by protecting the student’s right to silence, “the (individual’s) sphere of intellect and spirit” was safeguarded.
This principle can similarly be extended to freedom of the press safeguards which protect journalists.
The role the press plays in creating silence
Today, although counterintuitive, the press – a public loudspeaker – is also one of the few major institutions that continues to promote silence, by presenting meaningful and curated information to the public.
Journalism depends on reporters not blindly dumping information, as is done on countless online platforms, but reviewing, analyzing, editing and even redacting information before publishing. In these ways, the press often acts as a gatekeeper to the floods of information we may consume. This quieting role to noisy information is essential to a healthy information economy, especially as social platforms deluge us with information.
A prime example were the hundreds of journalists who investigated the Panama Papers and the more recent Paradise Papers – the largest leaks in history – for months and up to a year, respectively, before publishing any information. Rather than hastily uploading the troves of data onto the web in exchange for clicks, reporters built technology to sift through and analyze the millions of documents. As an attorney for one of the newsrooms working on the Paradise Papers, I watched reporters parse through these leaked documents, considering what to publish – and what not to. For months, the public sat free of clutter, as journalists prepared a more meaningful presentation of the leaks.
While the press should not be venerated as the modern St. George slaying the Silicon Valley dragon – often themselves succumbing to the 24-hour news cycle – journalists do offer an immense service to the public. Journalists respond to swaths of data by silently sieving through scores of information, identifying and analyzing important kernels of data, and then editing and redacting before publishing. We are starved for this type of curation.
As new threats against the press escalate, today’s courts should feel compelled to buttress the few safeguards that are left for the news media – one of the last bastions of silence. In 2001, the Supreme Court rose to this occasion in the case Bartnicki v. Vopper, where it eschewed liability of a media defendant for obtaining, analyzing, and broadcasting portions of a leaked conversation. There the Court honored what it wrote in a different press case, that “without some protection for seeking out the news, freedom of the press could be eviscerated.” By offering protections for the press, courts may not only save the news media but may also potentially save our ever-more polluted infosphere from being consumed by a tyranny of voices.