Or Of The Press

One (of Eben's three) web servers got cut off by the university last week.

So if Eben's web server gets cut off (presume a public university) is there a first amendment claim?

• he is granting public university so that it is clearly public actor
• question of whether or not this publication is speech (Reno v. ACLU makes the answer to this question fairly clear)
• in reality, probably deminimis (only 19 hours); but wants an injunction.
• is this a 'refusal to publish' (which the university may have a right to do) or is it a prior restraint of ongoing publication? Eben is very strong that this is definitely prior restraint. (To some extent hinges on your choice of analogy)
  • relevant case is a UCSD ACLU Zapatista case; some primary documents at http://checafe.ucsd.edu/correspondence/
• what is the relationship between academic speech and 1st amendment speech? Eben asserts that this line is pretty blurry in the modern setting. see Rosalie Tung v. UPenn (re: EEOC subpoenas) http://query.nytimes.com/gst/fullpage.html?res=950DE3DD103DF935A35751C1A96F948260&sec=&spon=&pagewanted=all and http://www.oyez.org/cases/1980-1989/1989/1989_88_493/
• what if you shift the hypo to government officials and their websites, with a shutdown compelled/triggered by superiors? Some contract claim there, if it is job-related.
• many of the discussions boil down to the TOS- a contract-based claim. Eben points out that that framing lets private contract decide what he asserts are constitutional rights; the question again then hinges on whether or not his web server is speech, or a publication, or what... is it post-publication, pre-publication?

'or of the press'

Is this that 'or' a dividing line? is speech something all of us who aren't media do, and 'press' is something only elites with presses do, aka the people known as 'the press' rather than 'printing'?

• Q: what areas of protection does 'the press' get that 'speakers' do not?
  • access: KQED case, hudgins v. NLRB- does the press have a right of access to the locale where news is taking place?
  • privilege:
  • passes: things like press room access- not exactly a question of constitutional right, but certainly an issue of government practice.
  • editorial control: Tornillo v. Herald- forum access
• are there differences that might justify these privileges?
  • claim of objectivity/ethics, but it isn't clear that the media is actually objective/ethical, and certainly was not any standards of objective/ethical in the late 18th century. (The 'Pentagon Papers' view of the press- creates a noblesse oblige in the minds of some people.) * note that 'the press' is not the people who publish obscene material (they don't have the 'freedom'); so maybe part of our instinct is that the press is 'decent', and if you aren't decent (aka, you're a pornographer, or maybe a blogger) you're not covered.
  • money/commercial interest- seems to meet the modern intuition; tied perhaps in part to libel law and liability there- St. Amant v. Thompson, malice rules.
  • Brings us to the libel/slander distinction (libel = writings; slander = speaking.) In English Common Law, libel comes out of censorship law (the Star Chamber). Slander must show actual economic or reputational harm, not just potential. Libel does not require proof of special damages, hence you end up having hypothetical cases about things like whether phonographs are libel or slander or whether or not the trained parrot is slander or libel. So quite possible that 'speech, or of the press' is really about this distinction.
• Note that the first amendment is incorporated to the states distinctly from the 14th amendment, roughly the same time 'free speech' is resurrected generally (c. 1920s). This is also the same time that radio becomes big, so the modern notion of 'the press' almost automatically means 'newspaper plus broadcast', not just newspaper. (This is part of how we end up with 'community standards'- court is trying to balance local and federal interests.)

So what does this all mean now? What is 'the press?'

• whatever difference there was between 'press' and 'speech', that has been substantially eroded; editorial control feels like one of the last differences.
• we solve things like 'passes' mainly through tokenism, and the editorial control of which blogs get access has huge influence: it creates and destroys markets, and is not subject to the norm we have that looks down on rejecting any newspapers. (There really is a scale problem there.)
• so if we do away with 'the press', and speak of human beings to have the right to speak and publish, we have a whole new problem.
  • e.g.: FEC trying to decide what to do about regulating blogs.
  • open Q: does this interpretation make shutting down his webserver prior restraint?
  • related: is patent restriction of video a regulation of the press? what about spectrum regulation when there is no interference(technology)-based rationale?

slightly OT:

• tangent: 'totalitarianism is really just monarchy with radio': power of voice + power of distribution creates huge power that text doesn't have. FDR/Hitler/Stalin/Churchhill used this to great effect.

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