Computers, Privacy & the Constitution

Is an equality principle underlying the First Amendment a strategically desirable framework for advancing public-ownership goals like birthright bandwidth?

-- By AjKhandaker - 09 Mar 2012

Technological advancements suggest that there must be an equality principle underlying the First Amendment, or else Congress’s “shall make no law” abridging the freedom of speech, or of the press, is meaningless, because the FCC’s current licensing scheme allows the Murdochs of the world to speak more loudly than everyone else.

While I am sympathetic to goal that the technological choices the FCC makes should be made for the public good and not so as to allow private interests to impede technological progress, extract rents from the public, or drown out other voices, I question whether a First Amendment equality principle is a strategically desirable framework for advancing socialist goals like birthright bandwidth.

Legal reality - the limited government First Amendment

“’[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.’” - Citizens United, 130 S. Ct. at 904, quoting Buckley

The primary advantage of my not being a First Amendment scholar, is that I can say with confidence that the layman’s understanding of the First Amendment is that it is a floor for citizens and not an ideal for the government to strive toward. Read within the context of the entire Bill of Rights, the point of the First Amendment is to create a check against active abuses of power by those in positions of government authority.

Indeed, the anti-Federalists understood that historically those who had positions of authority in government would tend to abuse citizens for their own interests. Therefore, the government’s ability to abuse private interests ought to be limited, and the principle that the First Amendment stands for, in many minds, is limited government, not equal speech. Although a majority of judges on the Montana Supreme Court might be sympathetic to an equal speech argument, and despite that neither technology nor our social minds particularly care about the legal public-private distinction, that distinction is a well-entrenched feature of Constitutional reality.

I'm not sure what legal reality these paragraphs depict. It is not the consensus of lay opinion that decides what constitutional provisions mean. You have made the First Amendment part of the Federalists' constitution, which it wasn't, and read its word in an eighteenth century style, which may not be the last word on the subject. In any event, the law is settled that when government acts affirmatively to create a "public forum" principles of access without regard to content (equality with respect to viewpoint and representation) apply. How to consider a government-subsidized and -developed public forum without scarcity is a new doctrinal problem, and even the traditional answers to nearly-related questions (like the constitutionality of the Fairness Doctrine examined in Red Lion Broadcasting) may be under reconsideration. But your account of the legal realities here is not reality as I know it.

Social reality

In my favorite primate study (a sad phrase, I realize), Duke neurobiologists showed that monkeys distinguish images of other monkeys based upon status judgments, such that lower status monkeys will pay to view pictures of higher status monkeys, but higher status monkeys have to be paid in order to look at pictures of lower status monkeys. I bring up this study, mostly because it’s funny to me, and it answers funny questions (e.g., why do people care so much about what celebrities do? Why are poor people invisible?), but also because it illustrates a point that advances my argument.

Human beings are hardwired to live within social reality. We have social minds, which evolved under heavy social selection pressures. Our social-mindedness is written so deeply into the way we see the world that we tend not to notice it, and therefore, social reality is the primary driver of real outcomes, which is what we care about. Ergo, we should frame our arguments so as to be amenable to hardwired social reality.

Social perception quickly reduces absurdly complex contextual and ecological realities into social judgments, which run deeper than property rights, though there is a strong relationship between the two, such that the value of a man’s time (and his ability to see the value in things) underlies the intuitive connections libertarians and capitalists see between individual virtue, autonomy, wealth, and status/strength. Equality is anathema to Libertarian-Americans who embrace inequalities in wealth, and by extension speech, as a natural outcome of unequal distributions of individual strength, virtue, and class. Within social reality, equality is a word that should be avoided if possible.

You went from a universal supposedly shaped by evolution to a cultural position obviously not through what form of argument?

You would hardly know to read this account that "Equal Justice Under Law" is written atop our Supreme Court, or that "equality" stands alongside "liberty" in the Pledge of Allegiance. Whatever this was, it wasn't an argument.

Both problems together

So, when the Supreme Court issued Citizens United, it was not legally or socially incorrect to say that if Congress cannot abridge the freedom of speech, then surely it cannot limit the freedom of private citizens to purchase speech. Most of us understand that the public-private distinction built into Constitutional reality neither captures the truth of the psychological rationale underlying the Bill of Rights, nor the corrupt relationship between the modern administrative state and private power.

Yet – the Supreme Court interprets the First Amendment to limit the power of Congress against private interests, and not vice versa.

Not always. Consider both Dennis v. United States, 341 U.S. 494 (1951) and New York Times Co. v. United States_, 403 U.S. 713 (1971). This is simply an oversimplification, not a legal argument.

Yet - the First Amendment is commonly understood as a floor and not an ideal. Yet – the human social mind inevitably values strength and abhors weakness, such that an interpretation of the First Amendment grounded in an equality principle rather than an understanding of limited government will be vehemently opposed by libertarians, capitalists, and people who lack faith in the present government’s ability to manage the commons better than an oligopoly. With both legal and social reality stacked against public ownership, what can we do?

What has public ownership to do with anything? The government is our trustee for the electromagnetic commons: that's the current law. It neither owns nor operates the unlicensed frequencies that are used, for example, by "WiFi." You don't seem to have engaged with the actual argument you're supposedly criticizing.

The amenable strategy - reframing equal speech

At a time of historically low trust in government, in which 58% of Americans dislike the word socialism, the notions of government-created positive liberty, birthright bandwidth, and an equality principle underlying the First Amendment probably lie too far outside of social reality to be well-received in the court of public opinion. Yet, as Daniel Kahneman has noted, different ways of framing identical questions can lead to drastically different emotional reactions and decisions. Likewise, as Upton Sinclair said, “The American People will take Socialism, but they will not take the label.”

In that same vein, Larry Lessig has shown us one way of advancing equal speech without invoking the spectres of equality or socialism - the democracy voucher. Lessig’s democracy voucher idea contains a notion of positive liberty, it is amenable to both legal and social reality, and it does not put the cart before the horse by advocating ostensible expansions of Congressional authority at a time when citizens have justifiably low trust in Congress’s ability to legislate cleanly or competently.

It also doesn't have anything to do with anything under discussion here.

Your argument seems to be that an idea I presented as impraticable under current conditions is. That's not, as was presented at the top, a reason why it would be a bad idea. That broadcasting is unconstitutional used to be an idea no one else agreed with; now it has some supporters, and is still essentially a negligible position. It won't be later. You have neither shown why it will remain impracticable, nor why it should. You have argued nothing but what I already agreed to, using a good deal of wrong law to do it.

The way forward from this draft seems to me to be either to deliver on what the introduction promised, which is an argument about why equality of access principles under the First Amendment with respect to government-structured media are bad, or an argument about something else, not why we agree with one another that no return to equality of access thinking is currently likely.


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r3 - 11 Jan 2013 - 21:48:48 - IanSullivan
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