Free Speech

Free Speech and Freedom of the Text

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From today's New York Times editorial page:

We have long been concerned about the potential threat to free speech and a free press as communications migrate from old-fashioned telephone lines, TV broadcasts and printing presses to digital networks controlled by unregulated private companies.

Leaving aside for the moment that the concept of free speech and free press was conceived to prevent government from limiting speech–making "unregulated private companies" the perfect vehicles for such speech–let's take a look at the news hook for the editorial:

Verizon briefly prohibited Naral Pro-Choice America from sending a certain type of "issue-oriented" text message in bulk on their system. When the block came to light, Verizon reversed the decision almost immediately, blaming an outdated anti-spam policy and one overzealous "well-intentioned employee."

No harm, no foul, right? Everything is working as it should, with public pressure on companies yielding good results without any intervention from the government. But no, Verizon's immediate correction and retraction is not enough for the Times, which wants a law "barring interference with text messaging."

American newspapers can resist government intimidation because the Constitution is on our side, but also because we control the presses. … If newspapers were delivered over mobile phones, a company could simply cut them off because it did not like a particular article.

So, to review: Freedom of speech is protected, first and foremost, by private ownership of the means of speech. The New York Times owns its own presses, and the government cannot tell them when they can or can't run. "That is the real meaning behind 'freedom of the press,'" says the Times, "and authoritarian societies know it." Right on.

But freedom of speech suddenly becomes endangered when telecommunications companies own the means of speech, and the only remedy is for the government to step in and tell them what they can or can't send.

For more on speech and its would-be liberators, go here and here.

NEXT: John Murtha, Soft Underbellies, and Other Pleasant Imagery

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  1. So a New York Times editor has never tossed a letter to the editor because of the content? Wow, they are true warriors for freedom!

    Also, electronic media should scare the pants off the NYT – they can’t control editorial content any more because the people have seized the means of production!

  2. “the only remedy is for the government to step in and tell them what they can or can’t send.”

    To be fair, the NY Times is saying the government should require the company to stay out of the speech regulation business. Perhaps there is an irony there. Still, with the consolidation of media outlets, Verizon shutting down political speech then lying about it is an ominous specter.

  3. …because we control the presses.

    I, for one, welcome our old ink-stained overlords.

  4. Leaving aside for the moment that the concept of free speech and free press was conceived to prevent government from limiting speech–making “unregulated private companies” the perfect vehicles for such speech

    No, do not leave that aside. Even for a moment. That’s the whole ball of wax for liberty.

  5. a MORE ominous specter would be the govt. regulating what verizon deems appropriate for its network.

    just as ominous as the govt. regulating the NYT would be.

    it’s pretty clear (just look at case law examples at fire.org) that there is a large contingent of those on the left that is perfectly fine with speech regulation of content, even by govt., AS LONG AS it meets the left’s criteria (offensive speech towards minority groups, hate speech, abortion clinic protests, ROTC on campus, etc.)

    if verizon actually decided to ban pro-choice bulk text messaging, they could. and people could then BOYCOTT verizon. that’s how free speech works.

  6. To be fair, the NY Times is saying the government should require the company to stay out of the speech regulation business

    NYT can print what it wants but I don’t have to allow a news rack in my drug store. Maybe the government should require Rite-Aid to stay out of the speech regulation business. And with the consolidation of the drug store business to just a few major players, well that’s pretty ominous when you can’t find the NYT.

  7. “a MORE ominous specter would be the govt. regulating what verizon deems appropriate for its network.”

    And that’s not what anybody’s saying. All they are saying is that neither the government nor Verizon can limit any of the speech. Of course, there are pitfalls to that approach.

    So, please, let’s not pretend this is about telling Verizon what views is can and can’t take. This is purely about preventing Verizon from interfering with speech at all.

  8. Not a hint of irony:

    The 1st protects free speech from abridgement by government – government must step in to regulate protection of free speech = the fox in the hen house.

    What in the hell is the matter with these blabbering idiots at the Times?

  9. “NYT can print what it wants but I don’t have to allow a news rack in my drug store.”

    Or, you could demand they pay you for the floor space, and if they didn’t would that be an infringement of free speech, or an economic issue? I get the issues here, just don’t make it out to be left wingers playing up their causes while shutting down right wing speech.

  10. a large part of this is the “old media” vs. “new media” thang.

    NYT, as an example of the old media wants the privilege (actually, it’s a constitutional right, but since when does the NYT care about the constituton?) to regulate speech but gets their panties in a twist when the NEW media (bloggers, etc.) do the same thing. recall the antipathy towards the pajamas media during the CBS forged document thang, etc.

    part of it is elitism (old guard media vs. these whippersnapper), part of it is jealousy, part of it is fear (of losing marketshare), etc.

    the NYT may thing they are better than a bunch o bloggers, but the heart of the matter is that they don’t want to extend the same editorial discretion and constitutional protections to the grassroots media.

  11. whit,

    I just wish you’d quit trolling around several blogs reducing every argument to Left v. Right. We all know by know you stand in outer right field.
    In this case, as if the right had never, ever felt the itch to “regulate” speech when it suited their agenda.

  12. “And that’s not what anybody’s saying. All they are saying is that neither the government nor Verizon can limit any of the speech. Of course, there are pitfalls to that approach.”

    except verizon ISN’T the govt. that makes all the difference in the world. the NYT can limit speech, and so can verizon.

    “So, please, let’s not pretend this is about telling Verizon what views is can and can’t take. This is purely about preventing Verizon from interfering with speech at all.”

    which is the same thing. the govt. should not have the power to regulate the content of private speech.

    if verizon was the ONLY phone carrier, i could see the argument (monopoly), but it isn’t.

    in a very narrow circumstance, like a monopoly, there might be some sort of argument there. but there isn’t

    govt. regulation of speech is odious. what makes us better than europe, canada, etc. is that we don’t allow the govt. to criminalize offensive speech, and we respect freedom of speech MORE than civility.

  13. ” just wish you’d quit trolling around several blogs reducing every argument to Left v. Right. We all know by know you stand in outer right field.”

    when that IS the argument, i state it as such

    and of course, i don’t stand in outer right field. not many people in outer right field are pro-choice, pro-decriminalization of drugs, etc.

    which i am.

    but leave it to you, a troll, to make this into an argument of personalities and individuals vs. concepts. adults can discuss concepts without devolving into personal attacks. you, apparently, cannot.

    everybody knows that when the right is in power, it regulates speech. the left does it too. since the left tends to dominate in campuses, for example, they are the bad guys. and the NYT is clearly on the left, and they clearly want to use their bully pulpit to get the govt. to regulate speech they don’t like

    “In this case, as if the right had never, ever felt the itch to “regulate” speech when it suited their agenda.”

    of course it has. nice strawman

    so, first you elude the discussion of concepts to make a personal attack, that is factually void ( i am pro-choice, pro-decriminalization of drugs, so your concept that i am far right is patently absurd), then you erect a strawman, so you can knock it down

    the NYT is not the right. the right does plenty to suppress speech (heck, look at the tommy chong case). but this case doesn’t involve the right

    so, lets stick to facts, instead of factless personal attacks. if you can

  14. When the block came to light, Verizon reversed the decision almost immediately, blaming an outdated anti-spam policy and one overzealous “well-intentioned employee.”

    It’s always just one well intentioned employee.

    When AT&T censored Pearl Jam’s Lollapolooza (sp?) broadcast on their “Blue Room” site for making comments critical of Bush and the war, again it was just an overzealous employee.

    When other bands that have been streamed on Blue Room went back and checked and realized they too had been censored, it was again just the work of certain employees jumping the gun.

    It’s becoming a fucking whack-a-mole game to see who is censoring.

    No harm, no foul, right? Everything is working as it should, with public pressure on companies yielding good results without any intervention from the government.

    No actually there is a harm and foul. If companies are only agreeing to “not censor in the future” based on public pressure rather than thinking twice about it before they do it, then there is in a “foul”. The material was censored and that can’t be reversed. And without some kind of regulation there is no guarantee that it won’t happen again despite AT&T’s or anyone else’s promises. It has happened and continues to happen too often.

    The people who are in the communications business are supposed to be our allies against censorship and this kind of crap, but instead they have become another entity that the busy public must keep an eye on and keep them honest.

    Pardon me if I don’t fear government regulations that force telecommunications companies to have to deliver the content free from censorship based on the whims of AT&T executives. Regulations that restrict the ability of any entity to censor free speech of others is A-OK by me.

    I can start my own blog if I believe that the newspapers aren’t covering what’s important, but I can’t start my own internet now can I?

  15. Let’s turn the NYT’s reasoning around. They charge people to run ads, essentially selling space in their means-of-speech. If they refuse to run my ad based upon content, they would be using their ownership of the means-of-speech to discriminate against my free speech rights. This is equally frightening to me. Clearly if Verizon’s texting technology should be regulated, so then should the NYT’s ads-on-paper technology, shouldn’t it?

  16. Lamar, Verizon is under no obligation to let anyone use it’s networks. You pay for the privilege. Same with the NYT. The Times has every right to disallow any content it wants from publication, just as Verizon has the right to control what is transmitted over its systems (within the terms of any conracts that it may be a party to). If you don’t like it, don’t buy their service, and start your own free speech telecom company.

    If anything, this is a contract law issue. Is there any language in their service contract that allows them to block or censor information that is transmitted on their network? If there is, tough shit NARAL et al. If not, take them to court for breach of contract. There are already mechanisms to settle this dispute. We do NOT need gummint interference in this arena.

  17. martin | October 3, 2007, 12:13pm | #

    whit,

    I just wish you’d quit trolling around several blogs reducing every argument to Left v. Right. We all know by know you stand in outer right field.
    In this case, as if the right had never, ever felt the itch to “regulate” speech when it suited their agenda.

    heh. I feel like someone sitting in their backyard when suddenly two guys in the middle of a fistfight come rolling in through the hedges and out the other side!

  18. Do people like getting ads via texting on their cellphones? I sure don’t.

  19. “The Times has every right to disallow any content it wants from publication, just as Verizon has the right to control what is transmitted over its systems (within the terms of any conracts that it may be a party to).”

    Please stop pretending like these are equivalents. The NY Times is a media outlet and can put forth whatever editorial policy it wants. Verizon is a communications company that puts me in contact with my friends and associates. Please stop pretending there is no difference.

    As I stated earlier, there is also a difference between telling Verizon that the must deliver spam (even political spam) which is wrong, and telling Verizon that it can read and edit the text messages I send to my friends and associates. Your catch-all attitude gives Verizon the right to my private messages, and that is unacceptable, regardless of whether the company is private or gov’t.

  20. “Regulations that restrict the ability of any entity to censor free speech of others is A-OK by me.”

    well, at least you admit that you don’t respect the 1st amendment. you are refreshing in your honesty.

    like others have said, if you don’t like verizon’s restrictions, PROTEST, boycott, go to another carrier. that’s your right. consumer choice.

    the 1st amendment (in spirit and practive) means we don’t use the heavy hand of govt. to tell PRIVATE ENTITIES what speech they can and can’t allow.

    next, are we going to require a bookstore owned by a jewish man to carry holocaust denial books? are we going to require NARAL to give equal time to anti-choice/pro-life types at their meetings?

    the first amendment MATTERS. it disturbs me when so many people are willing to throw it away at the first inconvenience

  21. lamar,
    they have it whether it’s unacceptable to your or not – that’s that thick stack of paper you sign in your service agreement. Just like how yahoo or google has all your mail, and if they felt like it, they could edit it. That’s the way it works, but there are options with more privacy if you seek them out (at a premium, of course)

  22. Does anybody read the paper anymore (except for the glossy ads)?

  23. Be gentle on the NYT. Remember, they just discovered the existence of blog commenters a few days ago. They’re still getting the hang of this Internet thingy.

  24. I wonder how much of this so-called ‘lone employee censoring’ by private companies like Verizon and AT&T is due to the increasing regulation of broadcast info by the FCC. I think it’s feasible that some companies are just being cautious when they see networks get slapped for broadcasting swear words during live shows and then have to decide what to do with the scheduled Pearl Jam ‘cast going over their network.

    In other words, maybe the increasing “censorship” by private companies is an indirect result of government policy now.

  25. Whit,

    Thanks for clearing up your position.
    You will forgive me if this passage from your 12.05 post caught my attention:

    it’s pretty clear (just look at case law examples at fire.org) that there is a large contingent of those on the left that is perfectly fine with speech regulation of content, even by govt., AS LONG AS it meets the left’s criteria (offensive speech towards minority groups, hate speech, abortion clinic protests, ROTC on campus, etc.)

    Pardon me for drawing what seemed like an obvious conclusion.

  26. Whit, Thank You.

    Lamar, vote with your dollar. If you dislike the policies of a private company that you are doing business with, DO NOT CONTINUE TO DO BUSINESS WITH THEM. No one is twisting your arm. You do not have a right to use someones property to communicate. You have the 1st Amendment right to not have the gov’t pass legislation abridging free speech, a free press, or assembly. If you re-read your Verizon contract, you may find that YOU have already given them the right to edit or censor your text messages. If so, as I said before, tough shit. If not, TAKE THEM TO COURT! Don’t complain that you were somehow snookered into this situation. Look at how privacy policies evolved because of public outcry and customer demand. We do not need some FCC pig making decisions on this matter.

  27. fair enough, martin. the reason that so many of FIRE’s cases involve speech restrictions by the left is that the left (generally speaking) RUNS college campuses.

    larrry summers, ROTC on campus, etc. etc.

    my general opinion (and part of the reason why i am libertarian) is that having power tends to increase the tendency of those holding it to quash dissent and increase their power. leftist and rightists are guilty of that.

    ime, the problem is worse on the left. having lived in areas ‘controlled’ by one side, then the other, etc. i have personally seen far more speech control (and attempted speech control) by the left than the right.

    however, i am the first to admit that the right does this as well. it is not solely a problem of the left.

    as for the claim that i am far right, that’s absurd. but it’s typical of many that whenever you criticize any tendency of the left (and in the case of campus and media censorship it is mostly done by the left), the instant kneejerk reaction is to accuse to person of being far right. ad hominem and all that.

  28. like others have said, if you don’t like verizon’s restrictions, PROTEST, boycott, go to another carrier. that’s your right. consumer choice.

    I forget, are telecom companies unprotected from competition and unregulated currently?

    They are the means of communications. Just like I support common carrier laws, and net neutrality, I support regulations preventing Verizon or any telecom company from censoring the communications of its users. They are the tools of the first amendment. And I have no problems with regulating them in a way that allows more speech rather than less speech.

    I don’t agree that not allowing an entity to censor a second entity violates the 1st amendment rights of the first entity. If Verizon cares so much about abortion they could send messages to their users touting their beliefs as well.

    I love the first amendment. I love it so much I want it applied to private entities. No one should have a right to censor speech. More speech = good, less speech = bad. ANything that allows more rather then less ideas in the marketplace is good.

    And for the record I would be just as upset if the censored pro-life texts

  29. “they have it whether it’s unacceptable to your or not”

    Yes, and when they actually start acting on that right, there will either be a market shift or government regulation.

  30. Plus, there aren’t any fully private communications companies. If there are, please let me know. I would pay a premium, as I do for email and certain access points to the internet.

  31. dude the bill of rights is a list of restrictions on the Federal government, not on businesses.

  32. I didn’t mean fully “private.” I meant there are no companies were my communications are fully private.

  33. “dude the bill of rights is a list of restrictions on the Federal government, not on businesses.”

    Perhaps when it was written.

  34. lamar, very true about there being no fully private communications companies. It’s still AT&T trying to use its old infrastructure, and they were tightly nestled in the covers with the government for a century.

  35. The government wouldn’t be telling Verizon what speech it can engage in. It would merely be regulating it’s methods of doing business. There’s nothing in the Constitution that bans regulation of business.

  36. That said, why should Verizon be forced to deliver spam?

  37. I have just one word about ISPs regulating/banning mass mailings.

    SPAM

    Think about it.

  38. Damn you to hell, Lamar! 🙂

  39. ChicagoTom –

    “I don’t agree that not allowing an entity to censor a second entity violates the 1st amendment rights of the first entity.”

    Then I demand that you take photocopies of posts written by me and hand them out on street corners.

    What’s that? You don’t want to be forced to convey my speech to others?

    I also demand that pages 1-4 of the NY Times’ main section be turned over to me so that I can speak my mind to the populace daily.

    Printing presses are “a means of speech” in exactly the same way and to exactly the same extent as fiber optic cable is.

    You’re on slightly firmer ground arguing that the initial concessions and protection from competition granted to Ma Bell back in the day morally required it to remain a common carrier for all time, and that requirement has passed down to successor entities. That would actually be a pretty solid argument – for landline phones. Wireless phone networks are somewhat different, but I could potentially get behind maintaining a common carrier requirement until the various restrictions, at all levels of government, against starting a new cell network are removed.

  40. “The government wouldn’t be telling Verizon what speech it can engage in. It would merely be regulating it’s methods of doing business. There’s nothing in the Constitution that bans regulation of business.”

    This would mean that there is nothing in the Constitution against requiring the publisher of the Village Voice to only sell copies of its publication that have been written longhand.

    This is just a regulation of a business, and not a restriction on their speech.

  41. Fluffy: Come come. You don’t really believe that argument, do you?

  42. “There’s nothing in the Constitution that bans regulation of business.”

    Ummm, I believe that would be an ‘unenumerated right’, which is left to the states. So, talk to your Governor. Unless you are going to push the interstate commerce clause, which we all know has only been applied sparingly, and when only absolutely necessary.

    There is also no constitutional prohibition against requiring all media outlets to print all publications in multiple languages, or from requiring Verizon to have translation staff available at all times to make sure your speech is available to people who do not speak the same language. Isn’t Government a wonderful thing!!!!

  43. ANything that allows more rather then less ideas in the marketplace is good.

    A bit simplistic…to Fluffy’s points, I don’t think such a blanket statement is practical in any sense.

  44. “This would mean that there is nothing in the Constitution against requiring the publisher of the Village Voice to only sell copies of its publication that have been written longhand.”

    True and not true. Once a regulation becomes too much of a burden, a court will find that a taking has occurred (i.e., gov’t takes property without compensation), which is Constitutionally prohibited. Otherwise, the Constitution is silent on longhand.

  45. Wireless phone networks are somewhat different

    The spectrum that cellular phones use — who owns them? Anyone who wants to do business using that spectrum should have the same 1st amendment restrictions on it as the government has. No Censorship.

    Here’s a different idea then.

    How about the government running the telecom industry? Then the 1st amendment will apply and there will be no ability to censor.

  46. Perhaps there is an irony there. Still, with the consolidation of media outlets, Verizon shutting down political speech then lying about it is an ominous specter.

    Lamar, there is no consolidation of media outlets. There’s only a consolidation of traditional already-big media such as major print newspapers. With every consolidation that occurs, ten more smaller independent outlets open up– especially in what we sometimes refer to as ‘new media’.

    The consolidation which is occurring, Lamar, is because of their weakening hold on a particular market.

  47. Correct me if I’m wrong, but aren’t cell phone carriers licensed by the FCC in much the same manner radio and broadcast TV are? That would mean that government acting on behalf of the public could require carrers to not censor certain messages, etc.

  48. Paul: Yer actually right. What I meant was consolidation of telecommunications companies (like Verizon), not media outlets. That’s a poor mistake on my part.

  49. Hey now, did you see the posts on Boing Boing about the new terms of service with AT & T (and think of the criticisms concerning the censoring of political speech from a concert)

    http://www.boingboing.net/2007/09/29/new-att-terms-of-ser.html

    http://www.boingboing.net/2007/10/02/att-snowjob-we-wont.html

    From Cory:
    “AT&T has brought down new Terms of Service for its network customers. From now on, AT&T can terminate your connection for conduct that “tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.” So AT&T customers aren’t allowed to write/podcast/vlog critical things about AT&T, its billing-practices, or its cooperation with illegal NSA wiretapping, on pain of having their connections disconnected.”

    So, basically, they reserve the right to cut your friends connection if they use AT & T to access the net, if for instance they make a comment complaining of said censoring of musical broadcasts, or something important like …say wiretapping, on a blog such as Hit n Run.

    I don’t like the government “interference” in free speech, but I can’t say that I like that either.

    It doesn’t matter if the government allows you free speech if you aren’t allowed free speech. And considering AT & T’s work with the government, are they really as “seperate” an entity as say my local dry cleaners?

    The separations between my local dry cleaners and the government is clear, AT & T however, coming from years of government mandated and controlled monopoly to the present day…not so clear…sure seems like something there.

    And speaking of the NYT, I’m betting they don’t refuse to talk to, or do business with someone over critique.

    I’m betting that’s a bit rarer.

  50. Freedom of speech was not invented to prevent the government from regulating speech.

    Jefferson and his contemporaries were quite clear on this point – it isn’t just an issue of individual freedom, but of an open and vigorous debate among the public being an affirmative good for society. They didn’t just limit their arguments to “people should be able to read newspapers and argue in pubs,” but extended them to “it is good when people read newspapers and argue in pubs.”

  51. Selling a service to transmit messages across state lines would most certainly have been considered interstate commerce, even in 1789. There is no jurisdictional issue here.

    The issue to me seems to be whether modern telecommunications companies are a version of Common Carriers.

  52. To head off my legions of admirers, please note the word “just” in the second sentence of my 3:13 post, and don’t bother with A-HA! posts about how I don’t believe the First Amendment limits the government.

  53. “”””AT&T has brought down new Terms of Service for its network customers. From now on, AT&T can terminate your connection for conduct that “tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.” So AT&T customers aren’t allowed to write/podcast/vlog critical things about AT&T, its billing-practices, or its cooperation with illegal NSA wiretapping, on pain of having their connections disconnected.”
    “””

    Just because they make it part of their “Terms of Service” doesn’t mean they can do it under the law.

  54. or, you could demand they pay you for the floor space, and if they didn’t would that be an infringement of free speech, or an economic issue? I get the issues here, just don’t make it out to be left wingers playing up their causes while shutting down right wing speech.

    Hey, Lamar, maybe I was a little snarky, sorry about that. Since others have have subsequently made my points and made them better than I, I’ll leave it at that.

  55. So AT&T customers aren’t allowed to write/podcast/vlog critical things about AT&T, its billing-practices, or its cooperation with illegal NSA wiretapping, on pain of having their connections disconnected.”

    Yeah, HP won’t let you write about their crappy computers on the HP blog neither. Tried that once. It took them about thirty minutes to delete it.

    And, surprisingly enough, if you go to my ISP’s website you will only see quotes from customers who LOVE THE SERVICE. There is not one excerpt from TWC’s many emails complaining about how lousy the ISP really is.

  56. ” Freedom of speech is protected, first and foremost, by private ownership of the means of speech.” I guess in theory, but I have to say NPR or the Newshour on PBS consistently has much better speech (more diverse, more objective, and more intelligent) than anything I hear on the private radio and tv stations…


  57. I can start my own blog if I believe that the newspapers aren’t covering what’s important, but I can’t start my own internet now can I?

    Just for the record…yes, you absolutely can. Most likely no one will use it, but there’s no reason you couldn’t start your own internet.

  58. “government should require the company to stay out of the speech regulation business”

    What about walmart only selling CDs that have had the swearing removed.

  59. “To be fair, the NY Times is saying the government should require the company to stay out of the speech regulation business. Perhaps there is an irony there. Still, with the consolidation of media outlets, Verizon shutting down political speech then lying about it is an ominous specter”

    I will have a scoop of hyperbole with my breakfast this morning.

  60. “What about Walmart only selling CDs that have had the swearing removed.”

    You’re a day late and a dollar short. We’ve already made the distinction between filtering out spam and monitoring personal communications. I’ve also noted a big difference between a media outlets or retailers and communications companies. In short, if you read the comments above, you would see that nobody is advocating telling retailers what they can and can’t sell and nobody wants to tell media companies what they have to print.

    Bob, a balanced meal is always best.

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