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Wednesday, October 3, 2007

NY Times Gets it Wrong on IM Blocking & the First Amendment
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The New York Times editorializes today about "The Verizon Warning," which refers to the incident last week involving Verizon blocking text messages from NARAL, an abortion rights organization. Verizon quickly admitted they had made a mistake and changed its policy. As my TLF blogging colleague Tim Lee pointed out, "the market worked: Verizon’s decision sparked a consumer outcry, which in turn caused Verizon to re-consider its decision within barely 24 hours of its coming to public attention. This is hardly a good example of the need for greater regulation."

Indeed. But that didn't stop some regulatory activists from using the incident as their latest rallying cry for Net neutrality mandates. But the New York Times actually goes much further in today's editorial suggesting that Verizon's mistake constitutes "textbook censorship." The Times goes on to say that, "Any government that tried it would be rightly labeled authoritarian. The First Amendment prohibits the United States government from anything approaching that sort of restriction."

Whoa. The Times apparently needs a First Amendment 101 lesson. While it is certainly true that any government action restricting speech in this fashion would constitute a violation of the First Amendment rights of the citizenry, what Verizon did in this case is not on par with that. When government censors, it censors in a sweeping and coercive fashion; it prohibits (at least in theory) the public from seeing or hearing everything it disapproves of, and it punishes those who evade such restrictions with fines, penalties, or even jail time. Not so for Verizon or any other private carrier.

Verizon has no such power to censor in such a sweeping and coercive fashion. There is a world of difference between a private company exercising its editorial discretion to transmit--or not transmit--certain messages or types of content, and efforts by government to censor messages or content.

Harvard Prof. Laurence Tribe made this point quite eloquently when he spoke at Progress & Freedom Foundation's annual Aspen Summit in late August. Tribe argued that those who would impose Net neutrality regulations on First Amendment grounds fail to appreciate “the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn't want to include, is a violation of its First Amendment rights,” Tribe concluded. (see pg. 17 of his remarks).

Tribe is exactly right, and the principle he articulates would apply equally to the New York Times if the editors decided to run (or not run) and advertisement from say... oh, I don't know... perhaps MoveOn.org opposing the war! That's why it is particularly puzzling for the NYT to end its editorial today with the argument that "Freedom of speech must be guaranteed, right now, in a digital world just as it has been protected in a world of paper and ink." Does that mean the Times thinks the government should regulate what ads or classifieds that the people want to run in the pages of their paper?

That's not to say that what Verizon did in this case was sensible, but empowering the FCC to regulate text messaging (and other forms of electronic speech) based upon such a knee-jerk fear of corporate power is absurd. And it strikes me as particularly unfortunate in this case since: (1) news of the infraction got around the press and the blogosphere immediately; (2) Verizon immediately admitted they had made a mistake; and (3) plenty of other carriers or press providers would be all too happy to deliver the NARAL message via alternative outlets. In other words, the word got out and the behavior that some found objectionable was altered.

Indeed, this entire episode proves, once again, that "sunlight is the best disinfectant." Heck, NARAL probably has never had such great press & public attention. I wish some carrier out there would try to block one of my essays or podcasts so I could get similar attention!

Regardless, Net neutrality regulation should not be based upon the twisted theory of the First Amendment that the New York Times advocates. The First Amendment was intended to protect us from tyrannical, coercive government power, not the silly mistakes of private companies.

posted by Adam Thierer @ 10:02 AM | Free Speech

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