shirky.com Clay Shirky's Writings About the Internet
Economics and Culture, Media and Community, Open Source
Ford, Subsidized Computers, and Free Speech
2/11/2000
 
Freedom of speech in the computer age was thrown dramatically into question by a pair 
of recent stories. The first was the news that Ford would be offering its entire 350,000-
member global work force an internet-connected computer for $5 a month. This move, 
already startling, was made more so by the praise Ford received from Stephen Yokich, the 
head of the UAW, who said "This will allow us to communicate with our brothers and 
sisters from around the world." This display of unanimity between management and the 
unions was in bizarre contrast to an announcement later in the week concerning Northwest 
airlines flight attendants. US District Judge Donovan Frank ruled that the home PCs of 
Northwest Airlines flight attendants could be confiscated and searched by Northwest, who 
were looking for evidence of email organizing a New Year's sickout. Clearly corporations 
do not always look favorably on communication amongst their employees -- if the legal 
barriers to privacy on a home PC are weak now, and if a large number of workers' PCs will 
be on loan from their parent company, the freedom of speech and relative anonymity we've 
taken for granted on the internet to date will be seriously tested, and the law may be of 
little help.  
 
Freedom of speech evangelists tend to worship at the altar of the First Amendment, but 
many of them haven't actually read it. As with many sacred documents, it is far less 
sweeping than people often imagine. Leaving aside the obvious problem of its applicability 
outside the geographical United States, the essential weakness of the Amendment at the 
dawn of the 21st century is that it only prohibits governmental interference in speech; 
it says nothing about commercial interference in speech. Though you can't prevent people 
from picketing on the sidewalk, you can prevent them from picketing inside your place of 
business. This distinction relies on the adjacency of public and private spaces, and the 
First Amendment only compels the Government to protect free speech in the public arena.

What happens if there is no public arena, though? Put another way, what happens if all 
the space accessible to protesters is commercially owned? These questions call to mind 
another clash between labor and management in the annals of US case law, Hudgens v. NLRB 
(1976), in which the Supreme Court ruled that private space only fell under First 
Amendment control if it has "taken on all the attributes of a town" (a doctrine which 
arose to cover worker protests in company towns). However, the attributes the Court 
requires in order to consider something a town don't map well to the internet, because 
they include municipal functions like a police force and a post office. By that measure, 
has Yahoo taken on all the functions of a town? Has AOL? If Ford provides workers their 
only link with the internet, has Ford taken on all the functions of a town?

Freedom of speech is following internet infrastructure, where commercial control 
blossoms and Government input withers. Since Congress declared the internet open for 
commercial use in 1991, there has been a wholesale migration from services run mostly by 
state colleges and Government labs to services run by commercial entities. As Ford's 
move demonstrates, this has been a good thing for internet use as a whole -- prices have 
plummeted, available services have mushroomed, and the number of users has skyrocketed -- 
but we may be building an arena of all private stores and no public sidewalks. The 
internet is clearly the new agora, but without a new litmus test from the Supreme Court, 
all online space may become the kind of commercial space where the protections of the 
First Amendment will no longer reach. 


Write clay@shirky.com with questions or comments.

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shirky.com Clay Shirky's Writings About the Internet
Economics and Culture, Media and Community, Open Source