Tuesday, October 2, 2007

The Selective Censuring of Censorship

Last week it appeared that Verizon was quick to respond when Amy Tiemann put up a News blog post about their refusal to carry text messages from NARAL. Yesterday, however, Timothy Karr used his Huffington Post blog to post a response of his own to the effect that, first, Verizon put little more than a tiny bandage on a gaping wound and, second, they were not the only ones attempting to impose censorship on their customers:

While they may have scrambled to fix one "dusty policy" and let these messages through, we can see in the details of this and other episodes a worrisome pattern of abuse. And it's not just at Verizon. Over the weekend, the technophiles at Slashdot exposed what many of us failed to read in the fine print of our AT&T customer agreements.

This should not be that all new to those of us who remember the days of Ma Bell, when you could lose your telephone service if your language got to foul (particularly if you were directing it to one of their operators). Nevertheless, Mr. Karr's post reminds us that we need to apply present-day thinking to a present-day problem, which is a great advance from the rather naive punch line in Ms. Tiemann's original post:

Laws that forbid common carriers from interfering with voice transmission on phone lines do not apply to text messages. It's time to change that law to protect free speech, no matter how it is communicated.

I am not quite sure what laws Ms. Tiemann had in mind; and, on the basis of Mr. Karr's post, I get the feeling that she does not have a clear distinction between civil rights laws and contractual agreements. This is why, as I observed, many of the comments to her post came from free-market advocates. Mr. Karr, on the other hand, is astute enough to recognize that that language of the First Amendment, in and of itself, neither guarantees nor protects free speech in all generality, including the choice of where one wishes to exercise it. Here is his punch line:

Speech should be free wherever it occurs - on the Internet, over cell phones, on the streets - everywhere. And it should be protected.

More and more of our communications occur in digital formats. It's time Americans safeguarded free speech in this new media with the passion that we protect it in old. A good place to start is with the two companies that control Internet and cell phone access for more than 120 million Americans.

Earlier today, my organization Free Press called on Congress to convene hearings that address phone company censorship policies. You can support this effort by writing your member of Congress and urging them to stand with the rest of us and investigate this abuse.

The biggest threat to free speech in America is public complacency. We must have this discussion about our democratic rights while we still can.

Phone lobbyists exert immense power over both Democrats and Republicans in the halls of Washington. As an alternative to opening their doors wide to AT&T and Verizon lobbyists, the least our elected officials could do for us is keep new communications open for everyone.

I think this is a step in the right direction, at least to the extent that it should be examined by the Congress. However, I also believe that such an examination needs to take into account whether or not free speech should be guaranteed "wherever it occurs." Justice Holmes was not speaking frivolously when he raised the example of shouting "Fire!" in a crowded auditorium. Similarly, examination should take the protection of free speech into account, particularly with regard to such questions of "How?" and "By whom?"

Furthermore, I have to confess that my current confidence in the Congress to debate this issue is not particularly high. I have already written about Congress being ill-equipped to deal with the Net Neutrality question, reducing the seriousness of the matter to a battle among the peripheral influence peddlers. Mr. Karr would be naive to assume that those influence peddlers would not descend on the Congress to protect the power of those commercial interests that now control most of the channels through which we can exercise free speech. As John Carroll, former editor of the Los Angeles Times, put it, the age of the newspaper as a public trust is dead and gone; so why should we assume that any other medium of communication should assume a similar public-trust responsibility? Nevertheless, if we follow Mr. Karr's advice and urge Congress to start deliberations, then, should we do so, we should also take the next step and monitor those deliberations, letting our representatives know what we think as those deliberations proceed.

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