Monday, April 19, 2010

Should the First Amendment Include Corporations?

Alright, so the grievously stupid invocation of the First Amendment when talking about corporations is quickly becoming a pet peeve of mine, as I seem to be finding it everywhere I look. Also, Google recently made a post about their approach to free expression. (Made just a few days after my blog post. Coincidence? Yes.)

So a lot of people think that these major corporations are beholden to an ideal form of the First Amendment instead of the actual law. In part, this is because speech-through-intermediaries is a somewhat new concept. In the past, this took the form of letters to the editor, or call-ins to radio shows, or actual employment with the press. In some cases, this included hand-cranking presses in a small basement somewhere - and once a government starts cracking down on do-it-yourself presses, it's a pretty good sign that totalitarianism is nigh.

So why do we even have such a concept as free speech in the first place? I suppose it's because of the belief that free speech is good for our society. Majorities are often mistaken, which is why we need to have minorities to have reasoned discussion about what should be done. In a sense, the founding fathers left free speech to market forces. Good ideas would float to the top, while bad ideas would sink to the bottom, and in the end, society would be the better for it. Obviously, as with the free market, they saw the need to place restrictions on speech, hence "clear and present danger" etc.

As time went on, and America expanded, facilitated communication grew. In the era of letters, this mostly took the form of the USPS, which, as a government agency, falls under the First Amendment, and is thus fairly uninteresting. Given more time, new technologies and new ways of communicating came along. In 1910, telephones, telegraphs, and radio became "common carriers" which meant that they had to provide their services to the public without discrimination. This is one of the ways in which the United States is somewhat unique, and demonstrates one of the reasons that common law is sort of stupid. The idea of a "common carrier" originally belonged to transportation of people and goods, and was taken from that context to apply to information. In this sense, telecommunications are covered under the First Amendment, as they are services licensed by the United States government.

The original internet was built on the backbone of telephone infrastructure, which meant that it could be regulated by the FCC in the same way that telephone, television, telegraph, and radio services were. As time went on, and technology changed, DSL and cable got reclassified as an "information service", which is legally distinct from a "telecommunications service" and is the whole reason that anyone is arguing about net neutrality. But that's not what this post is about.

Even if the Obama administration comes down on the side of net neutrality and reclassifies the internet as a telecommunications service, there will remain the larger question of how to regulate the huge companies that control the flow of content. I am speaking specifically of Apple, Google, and Amazon. All three of those companies exhibit enormous power on the market not just of things, but of ideas. Small companies have been known to collapse when Google tweaks its search algorithm and sends their website to the second page of results.

So here's the question - is Google a common carrier? It's obviously not in the legal sense, as it doesn't fall under the authority of the government, but it is in the sense that people depend on it. Yet Google's whole job is to separate the useful from the worthless: in other words, discrimination. If Google were a common carrier, how would it function, as it by definition it needs to value some speech over others? In some senses it would be easier for Apple, as their app store would simply have to accept all submissions, and no song or podcast would be denied access to iTunes.

Right now, we depend on these companies to not cross any lines. A free market optimist might say that we have nothing to fear, as these huge companies have no real choice but to follow the will of the masses. I would respond that this is exactly why we should be afraid. On the other hand, if these companies trend liberal (and I believe they do) then it may mean that the undesirable parts of free speech, such as hate speech and conspiracy theorists, will suffer from erosion as they become less and less accessible.

(Note: this title has two potential meanings, but I'm pretty obviously talking about restrictions rather than protections, the latter having been decided in Citizens United v. Federal Election Commission.)

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