A Capitalist Theory of Freedom of Speech
Posted on Feb 18th, 2008
by 
L'el
L'el
Excerpt from a reading for my Cyberlaw class, in the context of how Telecommunications companies claim that regulations (such as requirements to devote some portion of bandwidth to public broadcasting) violate their First Amendment rights as speakers and editors "to convey they content they wish to as large an audience as possible" (while simultaneously claiming their intellectual property rights trump the freedom of speech rights of users):
Implicit in these arguments is a controversial capitalist theory of freedom of speech. The theory is controversial not because it accepts capitalism as a basic economic ordering principle, but because it subordinates freedom of expression to the protection and defense of capital accumulation in the information economy. The capitalist theory identifies the right to free speech with ownership of distribution networks for digital content.
The argument that structural regulation of telecommunications networks restricts the First Amendment rights of telecommunications companies ties the right to speak ever more closely to ownership of capital. Arguing by analogy to print media, the capitalist theory of free speech
identifies the right to produce and control digital content with ownership of a communications network.
Nevertheless, conflating the right to speak with the right to control a communication network is problematic for two reasons. First, because they are conduits and networks, digital communications networks are designed to provide access to multiple voices. However, under the capitalist theory, these conduits exist primarily to promote the speech of the owner of the conduit, just as newspapers exist to promote the speech of the newspaper’s owner.
The second problem follows from the first: Content providers who also act as conduits have
incentives to favor their content over the content of others. For example, cable companies may be tempted to favor streaming media and digital music coming from the company’s content providers and advertising partners, while slowing down or refusing content coming from competitors, or, for that matter, from subscribers who want to be their own broadcasters. Broadband companies may seek to provide “walled gardens” or “managed content areas” which limit consumer access to that of the company’s proprietary network and its approved content partners.
[bold added]
Implicit in these arguments is a controversial capitalist theory of freedom of speech. The theory is controversial not because it accepts capitalism as a basic economic ordering principle, but because it subordinates freedom of expression to the protection and defense of capital accumulation in the information economy. The capitalist theory identifies the right to free speech with ownership of distribution networks for digital content.
The argument that structural regulation of telecommunications networks restricts the First Amendment rights of telecommunications companies ties the right to speak ever more closely to ownership of capital. Arguing by analogy to print media, the capitalist theory of free speech
identifies the right to produce and control digital content with ownership of a communications network.
Nevertheless, conflating the right to speak with the right to control a communication network is problematic for two reasons. First, because they are conduits and networks, digital communications networks are designed to provide access to multiple voices. However, under the capitalist theory, these conduits exist primarily to promote the speech of the owner of the conduit, just as newspapers exist to promote the speech of the newspaper’s owner.
The second problem follows from the first: Content providers who also act as conduits have
incentives to favor their content over the content of others. For example, cable companies may be tempted to favor streaming media and digital music coming from the company’s content providers and advertising partners, while slowing down or refusing content coming from competitors, or, for that matter, from subscribers who want to be their own broadcasters. Broadband companies may seek to provide “walled gardens” or “managed content areas” which limit consumer access to that of the company’s proprietary network and its approved content partners.
[bold added]
Access: Public
community
April 2008