Monday, December 18, 2006

COPA: The right to publish

The Dec 25 2006 Christmas Day issue of Time certainly comports with the concept of the "right to publish". Time named its person of the year as the "Us" or "Me", the Internetpublisher. It's upbeat, but then there are problems like COPA.

It’s well to go back and read the text of the First Amendment occasionally. Here is the Findlaw URL that I bookmark:

I’ve often noticed that “freedom of speech” and “freedom of the press” are enumerated separately. The right of peaceable assembly, and petition to the government are also listed specifically. In practical terms, freedom of speech has been more often associated with associative behavior (“expressive association”, as in the Dale v. Boy Scouts case) centered around sharing common values, and with collective speech through organizations and lobbyists. There are even some arcane issues for labor unions now with the mandatory union dues rebate issue (where individual workers object to specific political activity of unions).

“Freedom of the press” may be a more specific right than the generic “freedom of speech.” To a novice, it sounds like a rewording of “the right to publish,” which sounds like a critical concept in the age of the Internet, free entry, and search engines.

But the “press” is normally understood as an established institution, credentialed and qualified, with some formal controls on how information is disseminated to the public, and formal standards or journalistic objectivity. “Amateur” speakers on blogs and social networking sites are not part of the press as commonly understood, although there are debates about this. The Electronic Frontier Foundation maintains that bloggers may be journalists, and conversely. (Link: ). Many companies that enable self-publishing and cooperative publishing obviously publicly support the idea of a “right to publish.”

Literally, this train of thought could mean that only the established press has a constitutionally determined fundamental right “to publish.” In practice, the distinction has usually been applied in circumstances where ordinary “civilians” seek physical access to classified areas or combat areas, as in the case of the teenager who went to Iraq on his own. Only professional journalists with “press credentials” can get into certain areas legally.

It would seem possible, in COPA, to maintain that even amateur publishers should have the financial strength to provide the protections to prevent unauthorized open access from minors. The government made this suggestion in the trial a couple times. Perusal of Supreme Court COPA opinions from 2002 and 2004, however, suggest that the Court would look carefully at any excessive burden placed on small speakers in any “least restrictive means” analysis. Of course, literally, that could put smallfry without enough revenue down. It would seem plausible that share hosting ISPs could develop the methods to access geographic systems (quova), ID verification systems (Idology), or even content labeling, and offer them to subscribers, spreading the costs among many customers to make them reasonable. However, more software development and corporate project collaboration would have to occur to make this possible. ISP’s ought to start taking an increased interest like COPA. In general, their AUP’s contain terms that would prohibit subscribers from activity likely to result in prosecution, so even the abstract fear of prosecution, maintained by the COPA plaintiffs, can become a practical issue.

Related posting

Picture: Everwood stars "Ephram" and "Bright" in their Aug. 2005 appearance at King of Prussia Mall near Philadelphia (ironically, the COPA city). I got a chance to talk to both of them about "don't ask don't tell" and COPA, as I wore a black-and-red EFF T-shirt. They addressed their signatures on the picture page to "EFF".

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