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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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March 18, 2004

Freedom of Speech as Distribution is a Good Thing

Posted by Ernest Miller

Doc Searls has an interesting take on the ongoing FCC indecency brouhaha (Enjoy the obscenery). His points are echoed and emphasized by Jeff Jarvis (The Daily Stern: The real issue). Searls analysis begins:

Ever since we reconceived press and broadcast as "channels" and "media," and their goods as "content," we have understood them, literally, in terms of shipping.

He says this as if it were a bad thing.

When you subsume speech into "content delivery," you reduce it to cargo. It becomes just another deliverable. Packing material. You can abridge its freedoms all you want. (At least on the broadcast side. It's a little harder where printing presses are still involved.)

On the contrary, the more that we treat speech as undifferentiated cargo, the better off freedom of expression is. When everything is cargo you worry more about how it is distributed than the content of the cargo. FederalExpress is a distribution company. They don't really care what is in the boxes they ship (with certain obvious, practical exceptions), they just want to ship them as efficiently as possible. The more the boxes are undifferentiated cargo, the more efficiently they can be shipped.

The most obvious example of this in the free speech realm is the doctrine of common carrier. For example, the telephone network is a common carrier. Consequently, the telephone company doesn't care what the fuck you say on their telephone lines and neither does the government (with certain obvious, practical exceptions).

Searls notes that the government treats printing press speech different than broadcast speech. Why is that? Because they use different means of distribution. The government is regulating the content of speech, but it is doing so because the means of distribution is different. As far as the government is concerned books are undifferentiated cargo (with certain exceptions, such as obscenity and child pornography). As long as I follow the general rules for shipping cargo, I can ship whatever sorts of books I want. This is freedom of expression enhancing.

The internet is another example. Although the government is trying its best to regulate content on the internet, the courts have so far been quite sceptical. The courts have generally held the position that people can ship whatever darn content they want via the distribution channel known as TCP/IP. Bits are bits and we should treat them that way as much as possible.

From a public relations point-of-view, focusing on delivery rather than content also seems best. If we focus the discussion on means of distribution rather than particular, offensive content, we'll probably be better off. Many fewer people are upset by the idea that you can watch porn on cable then see a nipple on broadcast. Rather than argue about the relative merits of letting people see nipples or watch porn, we should be arguing that broadcast as a means of distribution should be treated similarly to cable as a means of distribution and leave the nipples out of it.

Speech as Place

Searls next speeks of freedom of speech with as a mixture of the personal and place:

Speech, as the founders conceived it, was something that happened among people, in society. It had a place: the street, the parlor, the town square, the village commons. Even when published, by a press, it was still personal. Take the example of Franklin's original blog, Poor Richard's Almanac. It was a form of printed speech that grew and spread like a weed on the lawn of the marketplace. But popular as it may have become, it was still "speech" because it was personal. People speak. "Content" doesn't. It's just cargo. And you can regulate the crap out of cargo.
....My point: a bar is a place. Free speech happens in a place. The very presence of a local bar on everybody's radio both offends and threatens the shipping mentality of the mediocracy — a group that includes not only giant mutant transport companies like Clear Channel and Viacom, but also its allied lawmakers and regulators: Congress and the FCC. That's why the latter feel just fine "controlling" what "goes out" through "the media" as if all of it were container cargo.

But what are these places? They are channels for distribution. The sidewalk is a place, sure, but it is a means of distribution too. It is a public place where I can speak to those citizen nearby and the government has very limited means to restrict what I may say through that means of distribution. Today, we don't have physical places, we have virtual channels. If you are reading this, you aren't reading in a particular place, you are receiving this communication through a particular channel, whether HTTP, RSS or something else. Rather than confusing ourselves with imperfect analogies to physical spaces, we should embrace the immateriality of "channels."

You know, container cargo is a great analogy for my point of view. The wonderful thing about the container ship revolution was that ships no longer really had to care about what sort of content they were carrying: electronics in one container, furniture in another, clothing in another, the ship doesn't have to worry about it or care. They just stack the undifferentiated containers. Before container ships you really had to worry about what went next to what and even more regulation was involved.

Nor does speech have to be personal to be worthy of protection. Even impersonal speech is worthy of protection. Indeed, sometimes it is the most impersonal speech that is the most powerful and important. Personal, impersonal ... it isn't the content of speech that we should be concerned with. We should treat all speech the same.

As I've argued previously (It's Freedom of the Press, Stupid), I believe that one of the critical elements of our free speech doctrines is the limitations the First Amendment puts on government's ability to regulate distribution of information. The real problem here is that the government has totally messed up how we should regulate broadcast. I would prefer something based on my formulation:

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.


Jeff Jarvis responds (The Daily Stern: PM edition).

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


1. Trygve Isaacson on March 18, 2004 11:45 PM writes...

A minor point regarding containerized cargo -- and not that it has anything to do with your overall point: in fact, even with containerized cargo, container ships do have some considerations about what's in those boxes. These have to do with positioning the containers on the ship. Some containers with perishables are refrigerated and must be placed in bays with power connections to run the refrigeration unit built into the container. Containers with hazardous contents must be placed away from certain other hazardous cargo or ship facilities or other cargo. Cargo weights are vitally important in loading the ship so the ship won't tip over (I'm not kidding) or the above-deck container stacks won't be top-heavy, so that the bottom container in a stack isn't crushed by too much weight, and so that the weight distribution and ballast can combine to balance the ship properly for smooth sailing and reduced fuel costs. And finally, if the ship is travelling to multiple ports of call, the containers must be stowed in a sequence that will make for efficient off-loading at each port, so that the ship spends less time sitting there doing nothing, and so that the port facilities don't have to move containers around just to get to the ones they want.

Just some interesting trivia from someone working on software that deals with some of those things!

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2. john on May 20, 2004 08:45 PM writes...

this is a gay web site

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