John Stuart Mill was an Englishman, though one of the most influential political philosophers in America in the nineteenth century. His writings ranged from important work on logic to a still striking text, The Subjection of Women. But his continuing influence comes from a relatively short book titled On Liberty.Published in 1859, this powerful argument for individual liberty and diversity of thought represents an important view of liberal and libertarian thinking in the second half of the nineteenth century.

“Libertarian,” however, has a specific meaning for us. It associates with arguments against government.¹ Government, in the modern libertarian’s view, is the threat to liberty; private action is not. Thus, the good libertarian is focused on reducing government’s power. Curb the excesses of government, the libertarian says, and you will have ensured freedom for your society.

Mill’s view was not so narrow. He was a defender of liberty and an opponent of forces that suppressed it. But those forces were not confined to government. Liberty, in Mill’s view, was threatened as much by norms as by government, as much by stigma and intolerance as by the threat of state punishment. His objective was to argue against these private forces of coercion. His work was a defense against liberty-suppressing norms, because in England at the time these were the real threat to liberty.

Mill’s method is important, and it should be our own. It asks, What is the threat to liberty, and how can we resist it? It is not limited to asking, What is the threat to liberty from government?It understands that more than government can threaten liberty, and that sometimes this something more can be private rather than state action. Mill was not so concerned with the source. His concern was with liberty.

Threats to liberty change. In England norms may have been the problem in the late nineteenth century; in the United States in the first two decades of the twentieth century it was state suppression of speech.² The labor movement was founded on the idea that the market is sometimes a threat to liberty—not just because of low wages, but also because the market form of organization itself disables a certain kind of freedom.³ In other societies, at other times, the market is the key, not the enemy, to liberty.

Thus, rather than think of an enemy in the abstract, we should understand the particular threat to liberty that exists in a particular time and place. And this is especially true when we think about liberty in cyberspace. For my argument is that cyberspace teaches a new threat to liberty. Not new in the sense that no theorist has conceived of it before. Others have.⁴ But new in the sense of newly urgent. We are coming to understand a newly powerful regulator in cyberspace, and we don’t yet understand how best to control it.

This regulator is code—or more generally, the “built environment” of social life, its architecture.⁵ And if in the middle of the nineteenth century it was norms that threatened liberty, and at the start of the twentieth state power that threatened liberty, and during much of the middle twentieth the market that threatened liberty, my argument is that we understand how in the late twentieth century, and into the twenty-first, it is a different regulator—code—that should be our concern.

But it is not my aim to say that this should be our new single focus. My argument is not that there is a new single enemy different from the old. Instead, I believe we need a more general understanding of how regulation works. One that focuses on more than the single influence of any one force such as government, norms, or the market, and instead integrates these factors into a single account.

This chapter is a step toward that more general understanding.⁶ It is an invitation to think beyond the narrow threat of government. The threats to liberty have never come solely from government, and the threats to liberty in cyberspace certainly will not.

Footnotes

¹ Or more precisely, against a certain form of government regulation. The more powerful libertarian arguments against regulation in cyberspace are advanced, for example, by Peter Huber in Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm. Huber argues against agency regulation and in favor of regulation by the common law. See also Thomas Hazlett in “The Rationality of U.S. Regulation of the Broadcast Spectrum,” Journal of Law and Economics 33 (1990): 133, 133–39. For a lawyer, it is hard to understand precisely what is meant by “the common law.” The rules of the common law are many, and the substantive content has changed. There is a common law process, which lawyers like to mythologize, in which judges make policy decisions in small spaces against the background of binding precedent. It might be this that Huber has in mind, and if so, there are, of course, benefits to this system. But as he plainly understands, it is a form of regulation even if it is constituted differently. Edit Delete

² The primary examples are the convictions under the 1917 Espionage Act; see, for example, Schenck v United States, 249 US 47 (1919) (upholding conviction for distributing a leaflet attacking World War I conscription); Frohwerk v United States, 249 US 204 (1919) (upholding conviction based on newspaper alleged to cause disloyalty); Debs v United States, 249 US 211 (1919) (conviction upheld for political speech said to cause insubordination and disloyalty). Edit Delete

³ See, for example, the work of John R. Commons, Legal Foundations of Capitalism (1924), 296–98, discussed in Herbert Hovenkamp, Enterprise and American Law, 1836–1937 (Cambridge, Mass.: Harvard University Press, 1991), 235; see also John R. Commons, Institutional Economics: Its Place in Political Economy (1934). Edit Delete

⁴ The general idea is that the tiny corrections of space enforce a discipline, and that this discipline is an important regulation. Such theorizing is a tiny part of the work of Michel Foucault; see Discipline and Punish: The Birth of the Prison (1979), 170–77, though his work generally inspires this perspective. It is what Oscar Gandy speaks about in The Panoptic Sort: A Political Economy of Personal Information (Boulder, Colo.: Westview Press, 1993), 23. David Brin makes the more general point that I am arguing—that the threat to liberty is broader than a threat by the state; see The Transparent Society, 110. Edit Delete

⁵ See, for example, The Built Environment: A Creative Inquiry into Design and Planning, edited by Tom J. Bartuska and Gerald L. Young (Menlo Park, Calif.: Crisp Publications, 1994); Preserving the Built Heritage: Tools for Implementation, edited by J. Mark Schuster et al. (Hanover, N.H.: University Press of New England, 1997). In design theory, the notion I am describing accords with the tradition of Andres Duany and Elizabeth Plater-Zyberk; see, for example, William Lennertz, “Town-Making Fundamentals,” in Towns and Town-Making Principles, edited by Andres Duany and Elizabeth Plater-Zyberk (New York: Rizzoli, 1991): “The work of . . . Duany and . . . Plater-Zyberk begins with the recognition that design affects behavior. [They] see the structure and function of a community as interdependent. Because of this, they believe a designer’s decisions will permeate the lives of residents not just visually but in the way residents live. They believe design structures functional relationships, quantitatively and qualitatively, and that it is a sophisticated tool whose power exceeds its cosmetic attributes” (21). Edit Delete

⁶ Elsewhere I’ve called this the “New Chicago School”; see Lawrence Lessig, “The New Chicago School,” Journal of Legal Studies 27 (1998): 661. It is within the “tools approach” to government action (see John de Monchaux and J. Mark Schuster, “Five Things to Do,” in Schuster, Preserving the Built Heritage, 3), but it describes four tools whereas Schuster describes five. I develop the understanding of the approach in the appendix to this book. Edit Delete