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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« ICANN Troubles | Main | It's All About the Distribution, Stupid »

November 20, 2003

It's Freedom of the Press, Stupid

Posted by Ernest Miller

There has been a lot of discussion on the net recently about making internet regulation a major political issue, starting with Dave Winer's post on getting presidential candidates to "make an impassioned plea to keep the Internet free of interference from the entertainment industry" (An issue in 2004: Keeping the Internet free from the Media Companies). I'm not going to attempt to follow the whole discussion, but Mary Hodder has a good post on the bIPlog (Dave Winer on Media Companies, Control of the Internet and the Election).

However, there is one post on this issue that particularly struck me. Telepocalypse makes the bold claim that End-to-end is a political statement. He's right. But it is not political in the sense of Democrats and Republicans, or even elections. It is political in a far more fundamental sense, that of the proper ordering of a free society. It is fundamental in the sense that the Bill of Rights is fundamental or the Declaration of the Rights of Man is fundamental.

You may think that I am being hyperbolic, but I would disagree.

I'm going to make a radical claim here: End-to-end is a critical element of freedom of expression and is, in fact, built into the First Amendment.

In my view, there are two traditional concerns regarding freedom of expression: the question of content and the question of distribution. Traditionally, in existing First Amendment jurisprudence, the phrase "the freedom of speech, or of the press" isn't distinct; there is no practical difference between freedom of speech and freedom of the press. I disagree, I believe that freedom of speech refers to the concerns that the founders had with seditious libel, that is, restraints on the content of speech. This is the tradition in our law that deals with issues of defamation, obscenity and other elements dealing with the content of the speech.

What then, does the freedom of the press refer to? I contend that freedom of the press is about how the government may regulate the distribution of speech. The freedom of the press refers to and deals with the concerns the founders had with questions of licensing and prior restraint (the other major element that is traditionally a concern of freedom of expression). How is this related to distribution?

In this case, "press" does not refer to journalists (that is a more modern interpretation) but to publishers, those with printing presses. Publishers in general, not journalists. And what do publishers do? Frequently, the don't write what they publish ... they publish the works of others, so the publisher's speech isn't really in question. More important than any editorial function a publisher may entertain, what publishers mainly do, and what the printing press allows for, is the widespread distribution of information. In the age of print media, a "press" was a necessary element of mass distribution.

Thus, in the age of print media, if you wanted to control distribution of information, you regulated the presses. You required licenses and you tried to stop distribution before it occured. Indeed, what is prior restraint other than a direct attack on the distribution of information? Thus, my contention that "freedom of the press" is concerned with the proper scope of government regulation with regard to the distribution of information.

One might simply stop there and conclude that government may not, for example, create distribution monopolies. However, the analysis doesn't end there. There is quite a lot of history indicating that the government can create distribution monopolies, such as the postal service. But there is a limit: such distribution monopolies may not discriminate in what they will or will not carry. I would phrase it this way:

The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.

Sounds suspiciously similar to the end-to-end principle, don't you think?

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Internet


1. Ned Ulbricht on November 20, 2003 11:40 AM writes...

Whenever someone makes a so-called end-to-end argument, the network engineer in me sounds a little alarm and I have to critically compare their statements with the seminal Saltzer, Reed and Clark paper "End-To-End Arguments In System Design":

Despite Lessig's and others' attempts to extend network engineering principles up into a social layer, I remain profoundly skeptical--notwithstanding my appreciation for McCluhan's work in media studies. For me, McCluhan's models have value because some of his work--but by no means all--can be used to successfully predict human responses to new media.

Curving back towards your blog entry here: radical claims require heavy support. I don't yet see a sufficiently rigorous comparison between end-to-end network principles and a free press. Not that the case couldn't be made--imho, you just haven't made it here.

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