Introduction

From Cyberlaw

"He who pays the piper calls the tune"

As Don Pember and Clay Calvert noticed: “The right to discuss the government, the right to criticize the government, the right to oppose the government, the right to advocate the change of the government—all these dimensions of free speech and free press are at the center of our political philosophy today” (D.R. Pember, C. Calvert, Mass Media Law, McGraw-Hill 2004, pp. 48). This work treats about an element of groving importance for this philosophy: new civic control mechanisms over whom citizens pay with their taxes in the states some call "modern republics" (B. Crick, Basic Forms of Government: A Sketch and a Model (London: Macmillan 1973), p. 56), about new media, modern and brisk popular journalism. More profoundly, it is about the equilibrium of power between society and government.

Yet, there are no two states alike, neither two societies with exactly the same set of values and aims exist and never have. As Robert Dahl, Democracy and Its Critics (Yale University Press, 1989): 91 reminds “that the character of a regime and the qualities of its people are somehow related has been a commonplace of political philosophy since the Greeks”. The argument powerful of its plausibleness is therefore that there can be no common regime of modern republic if the qualities of societies have differed since the dawn of time. Consequently, doomed to failure are any attempts to blueprint the way in which evolution of media influences legal foundations of democratic countries. One may probe the U.S. or European polity, or one from any other place where democracy works. This doubt traces back deep in the past, long before the birth of anything we call media nowadays. It is Aristotle who noticed that “it is impossible that the same laws should be calculated for all sorts of oligarchies and all sorts of democracies, for of both these governments there are many species, not one only” (Aristotle, Politics: A Treatise on Government, trans. by W. Ellis (Project Gutenberg Ebook, 2004), available from http://www.gutenberg.org/etext/6762, p. 1289a). Moreover, the divergences may be appreciated as enriching the global political ecosystem.

However, these arguments are flawed on the ground that the specific polity of democracy responds to the common hope, one aim, one purpose that the humankind has always striven for. Aristotle couched it conceptually XXIV centuries ago, saying that: “city is a society of people joining together with their families and their children to live agreeably for the sake of having their lives as happy and as independent as possible” ((Aristotle, 2004): p. 1280b). He understood happiness as “uninterrupted course of virtue” ((Aristotle, 2004): p. 1295a).

So even if people differ and therefore polities of their states are not uniform, the common aim calls for a common shape of the most basic foundations of government (as again Aristotle put it: “if we should endeavour to comprehend the different species of animals we should first of all note those parts which every animal must have, as a certain sensorium, and also what is necessary to acquire and retain food, as a mouth and a belly; besides certain parts to enable it to move from place to place. (…) For it is not possible that the same kind of animal should have any very great difference in its mouth or ears” (Aristotle, 2004): 1290b).

The shape of the democratic brains—freedom of speech—differs from state to state in details. Common is, however, its very core, because common is the conviction about the role of the freedom. Leszek Kolakowski, the winner of the first Kluge Lifetime Award in the Humanities and one of the greatest Polish philosophers, an offspring of the nation with a short track of freedom of speech, grabbed the very core of it when he confessed: “There is one freedom on which all other liberties depend—and that is freedom of expression, freedom of speech, of print. If this is taken away, no other freedom can exist, or at least it would be soon suppressed.” (Yet, broad consent over the stature of the freedom engenders different jurisprudential outcomes when a conflict with other constitutional value occurs. The U.S. system most often prefers freedom of speech. As Justice Cardozo wrote for the majority of the Supreme Court over 70 years ago, the freedom of thought and speech should be treated as “the matrix, the indispensable condition, of nearly every other form of freedom” Palko v. State Of Connecticut, 302 U.S. 319, 327-328 (1937). It is also (or particularly) true for the collision between the freedom of speech and the right to privacy, especially that the first one is explicitly enshrined in the First Amendment, while the other have been implied from the Fourth Amendment ((Pember, Calvert, 2004): 44). In Europe the general consent over importance of the freedom has not been reforged into a practical mechanism. Art. 10 ECHR, which ranks the freedom of expression among the fundamental freedoms, has not been recognized as a value more important than other basic rights. Its role is therefore established in ad-hoc balancing.)

Information and Communication technologies (ICTs) made the operation of the brains more efficient, able to coordinate other organs more effectively. Why therefore so often confusion replaces coordination? Brains of the society, involved in leisure activities, are not really used for controlling the main community organs. Is there any way to revert the process? That is the main question of this work. But before dissecting the brains, one more reservation must be made. The main presumption of this work is that (healthy) brains of (healthy) body of democracy should be ICT (genetically) modified along certain patterns. But how about ill bodies? How about autocratically governed societies or token democracies? Let’s make a clear division between these kinds, because only one of them will be further discussed. As experiments with electronic voting or programs of electronic inclusion show, ICT tools are becoming popular also in these places of the world where democracy is understood as Aristotle treated it—not a government of many but rather a government of poor. The results are quite pessimistic, possibly because ICT tools contribute a society politically mainly when they are used as watchdogs, and this happens only when the society reaches a certain level of democratic development. In other situations ICT transformation is merely a toy in an extravagant game with no democratic significance. Democratic potential of legally embedded ICT is even more limited among suppressed nations, when brains are used for government to control society, not the other way around. Aristotle might have been wrong when saying that “some men are by nature formed to be under the government of a master” (Aristotle, 2004): 1287b. But first things first. To read one has to accept the enlightenment of basic education and civic instincts, the society has to throw off the yoke of tyranny and establish basic democratic institutions, including an “ordinary” political freedom of speech. That is why also this strand will be left outside. The story will focus on the very kernel of democracy, on the participation by citizens in the process of government, on something Aristotle called “a state”—community of purpose, of “ruling and being ruled in turn” (“Nature has made all men equal, and therefore it is just, be the administration good or bad, that all should partake of it” ((Aristotle, 2004): p. 1261b) in a “political society”, every member of which, being a citizen, is a “political animal”. Where “citizen is one who both shares in the government and also in his turn submits to be governed”. Where the body is legitimately called democratic, where it is healthy, where there are good prospects that the government be efficiently controlled by the brains of the society to make the entirety more prosperous. At this point we reach the issue of control between government and society. After all the whole concept of democracy is based on checks, on manifold controlling mechanisms between these two stratums. In a standard pattern autonomous individuals (or their free media) put checks on electoral bodies and the bureaucratically structured government, while the latter ones control autonomous individuals by means of law enforcement. ICTs influence this pattern, but before we proceed to it, we should explore the very tension between government and society. More than 200 years ago (http://en.wikiquote.org/wiki/Thomas_Paine Thomas Paine), one of the America Founding Fathers, who understood democracy like hardly anyone else, wrote in his "Common Sense" (available from http://www.ushistory.org/paine/commonsense/index.htm): "Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer." In many places of the world, XX century brought governmentally caused suffering stemming from unbalanced relation between society and state, along the maxim made famous by Trotsky and Weber: "every state is founded on force" (M. Weber, Politics as a Vocation, originally a speech at Munich University, 1918, available at: http://www2.pfeiffer.edu/~lridener/DSS/Weber/polvoc.html). In such a pattern there is no equilibrium between citizenry and the state. Weber explained the reason:

“Politics, just as economic pursuits, may be a man's avocation or his vocation. One may engage in politics, and hence seek to influence the distribution of power within and between political structures, as an 'occasional' politician. We are all 'occasional' politicians when we cast our ballot or consummate a similar expression of intention, such as applauding or protesting in a 'political' meeting, or delivering a 'political' speech, etc. The whole relation of many people to politics is restricted to this.”

Description truly belittling citizenry—occasional politicians. Like occasional drivers on the way to the future. Would you trust that they can do the right, rational choices? Would you feel safe sitting on the passenger seat? In essence, would you trust yourself as an 'occasional' politician? Within the Weberian model any and each “occasional politician” is just a lonely, desperate and dodgy node in the (social) network. Possibly that is why Weber, whose bureaucratic structure of the state still prevails, did not flinch from stating that "modern state controls the total means of political organisation", implicitly agreeing on hegemony, absolute control of government over society. “Modern state is a compulsory association which organizes domination” Weber continues. In the globalizing world compulsion is more and more difficult to exercise. More importantly, is organized domination really a feature of free states? Or is it a battle cry of compelling governments. Free states should organize powers countervailing any domination to remain free. But any and each government suffers from the temptation to organize domination or allay for this purpose with powerful social actors, including mass media and ICT industries. The challenge for free societies is how to counterbalance the trend, how to protect the appropriate balance of control between government and society. For if ICT allows more comprehensive control over society, a new equilibrium between state and society, new concepts of controlling the controlling machine cry for being discovered. Modern republics require the equilibrium securing citizenry and enhancing the public field performance. They require it to flourish and to advance the state itself.