Part Two

The philosopher Iredell Jenkins has warned against accepting the visible facets of law as a complete or adequate description of law. He has written,

Law is very like an iceberg; only one-tenth of its substance appears above the social surface in the explicit form of documents, institutions and professions, while the nine-tenths of its substance that supports the visible fragment leads a sub-aquatic existence, living in the habits, attitudes, emotions and aspirations of men.(1)

What sits on the surface of the legal iceberg is undeniably important in ordering our lives and in making educated predictions about the resolution of problems. It is not, however, a particularly reliable predictor of the long term evolution of the legal process. The method of this book is to explore also some of what lies beneath the surface, the values, goals and functions of law in our society, the habits of thought that underlie various legal concepts and approaches, and the symbols and myths that affect public perceptions of law. Significant occurrences beneath the surface can reveal developments that will be visible to the public later.

A central theme of this book is that changes in the means used to communicate information are important to law because law has come to rely upon the transmission of information in a particular form. Law does not simply consume or produce information but structures, organizes and regulates it. The effectiveness and operation of law depends on controlling access to some information and highlighting or directing attention to other information. It has been observed that "organizations are networks of information flow; therefore, directing flow to the right places, filtering it in useful ways, and even preventing it from flowing to certain locations improves organizational performance....the primary goal from this perspective is not to produce more information, but rather to reduce the amount that any one subsystem must process."(2)Some of the ways the law does this have been consciously developed but many of the patterns and traditions of information use result from limits built into the media of communication that have been employed. Law, which one scholar has labeled "the science of inefficiency,"(3) has been conditioned in many ways by various characteristics and constraints of traditional modes of communication, particularly print. It has come to depend on information being organized and communicated in a particular form. The introduction of new forms of communication which possess different qualities will not simply extend trends which are associated with print. The electronic media are not to be considered merely as more powerful versions of print. They have different mechanisms for transmitting and processing information, some of which will pressure the law to change course and become a different and not simply a more efficient institution.

Although this book is about media and about law, it is not strictly about media law. We often read about cases involving libel and slander, broadcasting regulation, obscenity and pornography, and similar issues where, because of some conflict, the involvement of law has been felt to be necessary. The development of new forms of communication has caused the field of communications or media law to be an area of great growth and activity. Legal cases in this area often involve powerful people, large sums of money or disputes affecting deeply held values. Such cases are newsworthy, attract our attention and dominate public discussions about law and media. Yet, media law, no matter how important it might be, reveals only a small part of the relationship between law and the new forms of communication in our society. It informs us about newly developed legal rules and changes in traditional doctrines, about how law is trying to exert its authority on the means of communication. But it reveals relatively little about how the new media are changing the general process of law, the institutions of law, the values of law and the concepts of law in our society. While we shall inevitably touch on many topics of media law, our main concern is broader and will also reach some areas of law that are not normally thought of as being related to the media.

Media, the means we use to communicate, and law, the process we employ to settle conflicts, establish values and secure liberties, are two of the most basic parts of society's structure. They both influence the operation of institutions that are central to our society. When these two forces clash publicly, media law is the result. When they struggle quietly, sparring, adjusting and accommodating each other in less visible ways, the end result may be change that is broader, more pervasive and more significant, albeit less newsworthy. This book is mainly about the quiet struggle, the one that is generally not considered newsworthy enough to be reported by either print or broadcast journalists. Its purpose is to look beyond the pressing media law problems of the day and explore the wider impact of the new media on law. It is intended to illuminate new challenges that will affect the resolution of all cases rather than to analyze the details of particular cases.

When we examine our system of communication, there are also areas of activity that are visible and above the surface and others that get less attention and are often hidden from public view. The tip of the iceberg, for many researchers and for the public, is television, particularly the content of commercial television. Much research in the area of communications is based on the theory that measuring or determining the content of a televised message will reveal to us the impact of that communication on the individual or group that receives it. Some studies which measure the amount of violence on television, for example, employ this model. They assume that there is a connection between the amount of violence viewed on television and the level of violence in society.

This approach regards television or any medium of communication as being similar to a moving company.(4) Its job is to transport messages from sender to receiver and its impact results from the combination of words, pictures and sounds that are seen or heard by the viewer. While television may affect the speed at which something is moved, it is presumed to have no effect on the information itself. Whether a car is shipped by truck, train, airplane or boat, for example, does not change the car. Similarly, it is thought, whether one sends a message to consumers by television or by carrier pigeon does not affect the content of the message. Under this view, the medium seems largely irrelevant.

This is a model that appears plausible, particularly given our personal experiences and contact with television programming. When one sits in front of a television set watching a program, it is natural to assume that the sounds and images being seen on the screen are more influential than any other aspect of modern communication. Yet, when one moves away from the television and one's range of vision becomes wider, it can be seen that the communication of information in society, particularly within institutions, involves a great deal more than the television program of that moment. If we were able to peer into many homes at once, each of which had a television set on, we might begin to think more about the process of watching television and less about what program was being watched. And if, while observing all of these homes, we saw some people watching television, some talking on the telephone, some reading a book or newspaper, some talking with someone else face to face, and some transmitting data across the country through a personal computer, we would think even less about the content of the television program that some were watching. We would realize that we spend much of our lives engaged in the process of communication and being affected by communication about us, that many forms of communication are employed, and that how we communicate can influence our existence considerably.

Although I believe that television programming can and does influence viewers,(5) the emphasis in this volume will be less on the current content of that medium and more on the novel qualities which most media which transmit information electronically share. The economist Harold Innis, more than a decade before McLuhan became popular, stressed that "the materials on which words were written down have often counted for more than the words themselves."(6) This is a more restrained and, therefore, more accurate statement than McLuhan's famous assertion that "the medium is the message."(7) It suggests that the instruments carrying information are worthy of study and that we should explore the effect of a shift from a medium with certain qualities to a new form of communication having other qualities. This is particularly true for an institution, such as law, whose reliance on the printed word has been substantial.

Technologies of communication are being recognized by more and more scholars as being more than mere containers for carrying information.(8) Societies and cultures have been influenced independently of the content being communicated by their media. The long term impact of our new modes of communication, therefore, may be deeper and more widespread than the words, pictures or sounds being communicated would suggest. What is lurking below the surface of the new media iceberg are vast differences in the storage of information, in the movement of information and in how information is presented to the consumer. For example, some media allow information to travel faster than others. Some reach wider audiences. Some preserve information more effectively than others. Some encourage copying, change and the growth of information. Some can store more information than others. Some are more easily accessible. Some are easier to use. Some communicate some kinds of information more efficiently than others. Some use images and sounds instead of text. These qualities affect the information we receive and how we perceive problems and solutions. They influence our individual thoughts and actions, and shape the organization, operation and perception of our institutions as well.

As we look at law during the last few centuries, we shall find that our model of law has coincided with the age of the printed word and is an outgrowth of it. Law as we know it would not be possible without the special properties of print. We expect certain things from it because the technology of print structured the capabilities and functioning of law in various ways. It is not "fine print," as much of the public believes, that characterizes the law, but print itself. Print affected the organization, growth and distribution of legal information. The processes of law, the values of law and many of the doctrines of law, most notably the First Amendment guarantee of free expression, required a means of communication that was vastly different from writing and a society that used something other than manuscripts to store information. Law before Gutenberg was different from law today and was different in significant ways.

To explain the changes in law over long periods of time, this book has a historical orientation as well as a contemporary focus. Law is viewed more as a changing historical concept than as a clearly defined generic concept. Law is considered not merely "as a body of rules but as a process, an enterprise, in which rules have meaning only in the context of institutions and procedures, values and ways of thought."(9) Change over time has involved ideas about law and habits of thought as well as practices and doctrines. Many of the former changes occur gradually, are almost imperceptible when they are taking place and are often taken for granted. As two eminent English legal historians once wrote in connection with an earlier shift in communications, "the habit of preserving some written record of all affairs of importance is a modern one....But it is so prevalent and so much bound up with our daily habits that we have almost forgotten how much of the world's business, even in communities by no means barbarous, has been carried on without it."(10) In each chapter, therefore, I have tried to provide a background for understanding how modern law is different from what existed previously and how the electronic media differ from speech, writing and print. The historical material is employed to try to ascertain where change occurred previously when there was a shift in modes of communication and which areas of law are most likely to be vulnerable today.

Our society is already heavily reliant on the new media. Many of the vast changes that are occurring in our ability to obtain information, process it, and communicate it are obvious. Power failures today, for example, create more than just temporary darkness. When electricity stops moving, the flow of information grinds to a halt and the financial and political implications can be serious. A growing percentage of information moves electronically and much of this information is economically and legally significant. Most mailboxes contain more letters "written" by a computer than by the human hand. Even what appears to be printed, such as the morning newspaper, was probably "printed" electronically, and not in traditional ways.

What does a transformation in law entail? In confronting this issue, I have begun by focusing on some of the functions we expect law to perform. Chapter one examines the vital role played by the traditional media in fostering a public belief that law is stable and predictable as well as being flexible and adaptable to changed circumstances. Modern law promotes stability and limits the process of societal change by placing a heavy emphasis on maintaining links with the past. This function of law and the methods the law employs to regulate change are tied to the qualities of print. The chapter explores why the concept of precedent evolved into its present form only after the invention of printing, how modern attitudes toward change are different from expectations of change in the past, and the ways in which the electronic media threaten the law's current techniques of maintaining both tradition and change.

Chapter two examines another important function of law, the settling of disputes and conflicts. This may be the oldest and most traditional of the law's functions. Yet, there has been considerable variation in how much different cultures have relied on law to reduce conflict. Part of our affection for legal techniques of dispute resolution, I believe, has been encouraged in subtle ways by print. As other means of communication are used in lieu of print, our attitudes toward the kinds of techniques which should be used to settle problems are likely to change. The chapter explores how dependence on law to resolve conflict has evolved in the past and why other techniques may now seem more desirable.

Chapters three and four analyze the relationship between the new media and legal doctrines that concern information. One theme that is developed is that state or institutional control of information will be much more difficult in an era of electronic media than is generally assumed. As a result, all legal doctrines that concern information are in a state of flux. Legal doctrines which are designed to foster the movement of information, such as the First Amendment, will be less threatened than they were in the past. Other legal doctrines, such as copyright, obscenity and privacy, which are designed to restrict and regulate communication, will be increasingly challenged.

Chapter five examines the relationship between the legal profession and the control of information. What lawyers do and what they are is changing as a result new modes of obtaining and processing information. The idea of a profession is based at least in part upon control of a body of information. As knowledge is organized differently, this task will be considerably more difficult than it has been in the past. Changes occurring in the organization and structure of legal practice have already begun to occur. The new communications technologies have been welcomed enthusiastically by the profession but the consequences may be very different from what is expected.

Chapter six explores how law is not simply what we do but is also a function of how we think. It focuses on the perception of the individual and on the use of abstract concepts, both of which are very different now than they were in pre-modern legal systems. The changes that occurred in these areas in the centuries following Gutenberg allowed for the growing use of rights and the framing of social and political problems in legal terms. The use of electronic media in lieu of print threatens to change the meaning and use of rights and other abstract legal concepts. The "rights revolution," which, for the past thirty years, has been generating new rights and legal protections for previously disenfranchised groups may turn in a new direction in which substantive ends are stressed. The new media, for example, add pressure for securing real equality instead of legal equality, of equal treatment and not merely equal rights, for a system with perhaps less law but more justice. Conversely, the value of a right and its perception as a highly stable and secure form of legal protection may erode as information is stored in a more transitory form and is continually processed and reprocessed.

In one of his more famous comments, Justice Oliver Wendell Holmes observed that,

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral or political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.(11)

There has been increased attention in recent years to the "experiences" that affect law. The role of economics, politics and religion have been explored but the impact of the communications environment in which law operates has been neglected. This is particularly unfortunate in an era of emerging technologies and changes in the use of traditional forms of communication. Law, while it is a powerful mechanism for exerting power over others, is itself affected by other forces in society. One of these, I hope to show, is the manner in which information is communicated.

Due to our tradition of free expression, we have not resisted the development of the new media, as some other cultures have done when faced with a shift in their system of communication. After the development of writing in ancient Greece, for example, Lycurgus, the chief lawgiver of the Spartans is described as having

strictly forbade that the fundamental laws of his people ever be written. If you must write the law in order to remember it, the spirit of the law has already been forgotten; and if you must think the law in order to respect it, you confront the law as any mere stranger confronts it who is subject to it in an alien encounter. The only proper tablet of the law is the cultivated human soul. For law is secured among men not by tablets of stone but by habits of loyalty, by the settled habits of the citizen for whom the law has become, out of old and careful discipline, a simple echo of the soul.(12)

The ancients may have understood that a new form of communication ultimately leads to deep rooted change but they were not cognizant of the opportunities that such an occurrence also presents. Plato warned that,

If men learn [writing], it will implant forgetfulness in their souls, they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves but by means of external marks; what you have discovered is a recipe not for memory, but for reminder. And it is no true wisdom that you offer your disciples, but only its semblance; for by telling them of many things without teaching them you will make them seem to know much, while for the most part they know nothing; and as men filled not with wisdom, but the conceit of wisdom, they will be a burden to their fellows.(13)

One of the lessons of the era of print has been that new media do not simply threaten old ways of doing something. They also open up new opportunities. The analysis that follows suggests that there is reason for optimism as well as for concern. The process of legal readjustment that will be necessary in the future may prove painful to those who idealize the current model of law, who mistakenly associate the rules of law with the rule of law, or who do not understand that what we have now is not perfect and has never been static. For those who do recognize the likely direction of change and the unique qualities of the new media, the new possibilities that will be opened up may be a welcome as well as a formidable challenge.

Footnotes

1. Iredell Jenkins, Social Order and the Limits of Law (Princeton: Princeton University Press, 1980), p. 9.Return to text

2. Bonnie McDaniel Johnson and Ronald E. Rice, "Reinvention in the Innovation Process: The Case of Word Processing," in Ronald E. Rice, ed., The New Media: Communication, Research, and Technology (Beverly Hills: Sage, 1984), p. 158.Return to text

3. William Seagle, Law: The Science of Inefficiency (New York: MacMillan, 1952). See also Samuel Gross, "The American Advantage: The Value of Inefficient Litigation," 85 Michigan L. Rev. 734 (1987).Return to text

4. This analogy is borrowed from Tony Schwartz, The Responsive Chord (Garden City: Anchor Press/Doubleday, 1974), p. 2.Return to text

5. Ethan Katsh, "The Supreme Court Beat: How Television Covers the U.S. Supreme Court," 67 Judicature 6 (1983); Ethan Katsh and Stephen Arons, "How TV Cops Flout The Law," Saturday Review, March 19, 1977, pp. 11-18.Return to text

6. in David Riesman, The Oral Tradition, The Written Word and the Screen Image (Yellow Springs, Ohio, 1956), pp. 12-13.Return to text

7. Marshall McLuhan, Understanding Media (New York: McGraw-Hill, 1964).Return to text

9. Harold Berman, Law and Revolution (Cambridge: Harvard University Press, 1983), p. 11.Return to text

10. Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 1968, 2nd. ed.), v. I, p. 25 Return to text

11. Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co., 1881), p. 5.Return to text

12. John F.A Taylor, The Masks of Society (New York: Ap- pleton-Century-Crofts, 1966), p. 4; see also Plutarch, Lycurgus 13.Return to text

13. Plato, Phaedrus, R. Hackforth, tr., (Cambridge: Harvard University Press, 1952), p. 274-275. Return to text