Historically, technological advancement has provided substantial challenges for the law, challenges to which, with the
wisdom of hindsight, law often has not responded well. The protection of the
First Amendment has been denied to many new mediums: Censorship is the "bastard child of technology."
(954) "[F]ear of a new medium's potential for evil has been a consistent rationale for either denying new media
first amendment recognition or circumscribing their
first amendment freedom."
(955) For nearly fifty years, for example, as a matter of "common sense," motion pictures were excluded from the
First Amendment.
(956) The
Supreme Court held in 1915 that the new medium of film posed as a special danger as a "a prurient interest may be excited and appealed
to."
(957) Not until the early 1950s was this decision reversed.
(958) Laurence Tribe has summarized the interaction between law and new mediums as revealing "a curious judicial blindness, as if the
Constitution has to be reinvented with the birth of each new technology."
(959) The manipulability of photographic images, now facilitated by computers, is not strictly a new medium, but the same pattern
may be at work, particularly if current developments in regard to child pornography are to serve as a guide. The law of evidence
is at a polar extreme--demonstrating a lack of concern about the consequences of the digital era--hardly a model to be emulated
either. A solution presumably should lie somewhere in between them; the context of the control of images of past celebrities
provides a proving ground. The potential of digital forgery should be acknowledged. It was not entirely without reason that
new mediums have been feared as having improper or indecent tendencies and powers of persuasion that previous mediums had
lacked.(960) Digital forgery weakens the evidentiary value of photographs, and few deny that simulated child pornography is capable of
some evil. But the Supreme Court for three decades has made clear that expression no longer may be regulated based on a remote harm or ill-defined evil.(961) "[A] big difference [exists] between the danger of an abuse and the abuse itself."(962) If digital forgery is to be regulated, that regulation must be justified, and extend no farther. Such a solution may lack
elegance--but elegance should not be preferred to justice, as well as to a welcome of a new means of discourse.
The next challenge for the law, as above, may be what regime emerges to respond to the power of digital technology to resurrect
dead celebrities. There should not be a rush to judgment based on bogeymen: As Justice Breyer observed in a different but related context, "aware as we are of the changes taking place in the law, the technology, and
the industrial structure . . . we believe it unwise and unnecessary definitively to pick one analogy or one specific set of
word now."(963) But nor should courts as in the context of evidence do little in response to known hazards. The courts can adapt(964)--and it is important that they do so, rather than quickly settle on a maxim, whether or not it is the right maxim.(965) The Court's decision in Reno v. ACLU(966) offers hope that, even as the pace of technological change accelerates, courts will be responsive. As Robert O'Neil of the Thomas Jefferson Center for the Protection of Free Expression observed, "[t]his is the first time the court has taken a new and unfamiliar medium and put aside its concerns to totally
vindicate free speech rights."(967) But still, in the digital context, the score is so far 2-0 against a well-reasoned response to the potential of digital forgery.
