The Electronic First Amendment: An Essay for the New Age

The internet brings together, within a single vehicle, both the right to obtain as well as the right to express and broadcast information, opinions and ideas in various forms including writing, imagery, audio and video. 2 It provides the world with a comparatively inexpensive, accessible, "easy-entry way of sharing information and ideas," and facilitates freedom of expression by making information easily accessible. The internet has also seen to it that news is communicated across borders within seconds, businesses and companies carry out transactions with their clients online, 4 and its efficiency has seen it overtake traditional media as a means of conveying information. 5 1 Image available at

On July 2, 2012, Verizon filed a brief with the United States Court of Appeals, District of Columbia Circuit, stating that the open-network, anti-discrimination rules adopted by the Federal Communications Commission “violate[d] the First Amendment by stripping [Verizon] of control over the transmission of speech on [its] network.” Verizon argued that its broadband network was its “microphone” and its “newspaper,” and in doing so essentially claimed the online communications of some 200 million Americans as its own. This article provides a constitutional response to Verizon. It describes how U.S. First Amendment and communications law has evolved to a point where Verizon’s argument is possible, and compares U.S. law with network speech jurisprudence from a different but related constitutional culture. The First Amendment, while understood as a “free speech” protection, is not infrequently just the opposite -- either missing in action, or applied in a way to lessen the amount of speech, information, and opinion available to the public. One reason for this is that Courts have typically focused on its “government shall make no law” language rather than the “freedom of speech” phrase at the end of the First Amendment. The German post-war constitution (the Grundgesetz or Basic Law), by contrast, incorporates a more affirmative idea of free speech, built on the ashes of a dictatorship that misused mass communications before and during World War II. The German Constitutional Court, seeking to break with the past, has read the Basic Law’s speech article (Article 5) to guarantee the “institutional freedom” of broadcasting and the press, and to protect speech and information-transfer as dynamic processes. Article 5 protects individual speech as the First Amendment does, but also requires the state to safeguard the opinion and information-transfer functions of electronic media, as a condition precedent to democracy. This is a slightly edited version of the article that appeared at 36:1 Hastings International & Comparative Law Review 145 (2013). Keywords: net neutrality, comparative constitutional law, electronic networks, free speech, telecommunications, information, common carriage, common carrier, First Amendment, Internet protocol, Brand X, Red Lion, German, Constitutional Court, Habermas, monopoly, competition Suggested Citation: Witteman, Christopher, Information Freedom, A Constitutional Value for the 21st Century (January 15, 2013). Hastings International and Comparative Law Review, Vol. 36:1, No. 145, 2013. Available at SSRN: https://ssrn.com/abstract=2218076

2011

Forthcoming Chapter in the Oxford Handbook on American Politics. This article discusses the evolution of U.S. civil rights and civil liberties through the lens of Supreme Court decisions. It traces the evolution of negative rights against the state and positive liberties from 19th century property rights decisions through early 21st century decisions regarding same sex marriage. It also traces the shift in the Court’s approach to rights cases from one in which the state is regarded as a threat to individual rights to one in which the state plays a complex role of balancing rights claims. As well, the article demonstrates that rights claims and cases have become more complex as notions of “the public interest” become more contested when the pursuit of general interests has a disproportionate on the interests of particular social groups.

Digital Enlightenment Yearbook 2014, 2014

This is the introduction to the third Digital Enlightenment Yearbook, published by the Digital Enlightenment Forum (http://www.digitalenlightenment.org/), which aims to shed light on today’s rapid technological changes and their impact on society and its governance, taking inspiration from Enlightenment thought as well as from the many transformations and evolutions that have taken place since. This year the focus of the Yearbook is “social networks and social machines, surveillance and empowerment.” In what is now the well-established tradition of the Yearbooks, different stakeholders in society and various disciplinary communities (technology, law, philosophy, sociology, economics, policymaking) bring their very different opinions and perspectives to bear on this topic, forming a basis for inspiring and constructive cross-disciplinary discussions.

The Small Screen: How Television Equips Us to Live in the Information Age, 2007

The End of the Future: Governing Consequence in the Age of Digital Sovereignty, 2019

This is the full manuscript of the following: The End of the Future: Governing Consequence in the Age of Digital Sovereignty We are now entering an era where the human world assumes recognition of itself as data. Its basis for existence is becoming fully subordinated to the software processes that tabulate, index, and sort the relations entailed in making up what we perceive as reality. The acceleration of data threatens to relinquish ephemeral modes of representation to ceaseless processes of computation. This situation compels the human world to form relations with non-human agencies, to establish exchanges with the algorithms and other software processes that accelerate and intensify the possibility of its obsolescence in order to allow for a profound upgrade our own ontological understanding to take precedent. Through a partial attunement to what is always already non-human in its form of mediation to a higher intelligence, we are able to rediscover the actual inner logic of the age of intelligent machines, as at once the reason of trauma and the instrument of catastrophe for a humanity still beholden to a linear process of rationality. Humanity now finds itself captive to pervasive institutionalised forms of violence whose force has everything to do with the aggressive pattern of economics in a neoliberal age, bound with an internet that has taken on a fourth dimension to generate consequence in the material world. This has allowed the internet to become thingly insofar as it will soon be understood not as an interface but as an environment. It thus takes on the ability to shape conditions beyond the imaginary and embed itself into materiality in a variety of ways that benefit from the demise of state parameters and the enlivenment of a fluidity of information able to migrate across time and space. All previous forms of media suffered from imprisonment within a screen, which limited their ability to function as the foundation for alternative networks, or as nodes of multilayered connectivity. The promise of a universal connectivity through a perpetual summons of our inclinations brings forth nothing less than a new form of imperialism able to transform space into a sphere of liquidity, and complexity into a condition of movement. As labour precarity and labour migration becomes the normative situation of a disenfranchised humanity, so too does its acquiescence to a universal accessibility where individuals are continuously subject to digital interpolation, and as such their behaviours and movements are made available to generating exploitable forms of interest. The data created is thus credited to others and interpreted to advance interests of others; all in order to finance the states and corporations who control the means for making worlds we alone discover. The End of the Future conceives an understanding of the digital through its dynamic intersection with the advent and development of the nation-state, race, colonisation, navigational warfare, mercantilism and capitalism, and the mathematical sciences over some five centuries. Its task is to animate an understanding of the twenty-first century as an era where the screen has split off from itself and proliferated onto multiple surfaces, and as a consequence has allowed an inverted image of totalitarianism to flash up at this point in history, and be altered to support our present condition of binary apperception. It progresses through a recognition of a now atomised political power whose authority lies in the control not of the means of production, but of information, and thus, digital media now serves to legitimise and promote a customised micropolitics of identity management. On this new apostolate plane, it is possible to conceive a world in which each human soul is captured and reproduced as an autonomous individual bearing affects and identities. The digital infrastructure of the twenty-first century makes it possible for power to operate through an esoteric mathematical means, and for factual material to be manipulated in the interest of advancing the means of control. This volume travels a course between Elizabethan England, North American slavery, Cybernetic Social Engineering, Cold War Counterinsurgency, and the (neo)libertarianism of Silicon Valley in order to arrive at a place where a cool organising intelligence that started from an ambition to resourcefully manipulate bodies, ends with their profound neutralization.

The US media system is primarily a commercial one dominated by a small number of lightly regulated corporations, and offset by weak public alternatives. This was not inevitable ; it resulted from the outcomes of specific policy battles and from specific values triumphing. One way of understanding this logic is to focus on "corporate libertarianism", which emphasizes negative freedoms (freedom from) as opposed to positive ones (freedom for). Historically, much US media law and policy has been framed in negative terms, exemplified by the First Amendment. But there are also largely forgotten traditions that draw from a positive rights discourse. This social democratic orientation privileges media diversity and protects collective rights held by publics, audiences, and communities over the individual rights of corporations. Drawing from historical case studies, this chapter considers media policies for the digital age founded on positive freedoms.

The Freeman: Ideas on Liberty, 1995

The present communication for the VIIIth World Congress of the International Association of Constitutional Law will discuss in a few pages how the future of freedom of expression must evolve to recognise a freedom of the internet as a latest step in the development of freedom of press1. We will study the meaning, the foundations, and the need of this freedom by reviewing the relationship between Constitutional Law and technology, the technical background of the internet, and the history of freedom of press. Eventually, we will make a strong case about how to protect, from our common constitutional tradition, the internet and freedom of expression from some current serious menaces.