08-06-2005 18:04									#1
	The 1st Amendment and Private Property - contradictory? Tired of ads?

In a world where communications between people, information provision, and where physical space for public discussion and interaction is becoming increasingly owned and mediated by private property and enterprise, is it acceptable that these enterprises be able to restrict speech and assembly within their jurisdiction, or does the first amendment override the rights of private property to regulate what is said by their clients?

If, for example, the street network of a city, or its public square, was privatized, is it the right of the company that bought it to restrict free speech and assembly on those streets and in that square?

The principle being that it is logically acceptable that I can control who enters my house and what can be said in my house, does this principle extend to major companies whose facilities are used as de facto public space?

This is not so problematic in countries without provisions for free speech, but in America I would suggest it is an issue that should be discussed, if it isn't already.

	08-06-2005 18:10									#2
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Private property is private, the owners should be able to restrict (or allow) whatever they like, almost without limit. (provided of course, they do not violate an *individuals* rights, the most important rights of all, life, liberty, property) . . .

Public property is public, that is "belonging to all" (all = all member of that public entity, be it a city, a county, a state, whatever) . . .

It's termed public property, but it's really more like (in my view) "joint ownership" . . . it still "belongs" to the public, and thus the public has the right to determine what is allowed there or not. Providing of course, that does not violate the "fundamental" and superceding all individual rights of life, liberty, and property.

	08-06-2005 18:14									#3
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For the record, this question refers to major companies that own de facto public space.... not small websites like Apolyton. ACS did provide the inspiration for this question... but they're not the target.

	08-06-2005 18:20									#4
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if it's the company's "public" space, it still belongs to the company, and subject to whatever decisions the company wants.

	08-06-2005 18:21									#5
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So if the phone companies have the right to regulate what people say using their services, even if it would be a violation of the 1st amendment had the US Government tried to do the same thing?

	08-06-2005 18:21									#6
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Define "defacto public space" as I think that is the point of confusion. Provide some examples please.

	08-06-2005 18:22									#7
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What about private companies that have purchased rights to public resources, i.e. broadcast companies? In the US they are solely private entities, and can censor however they wish. Just ask the Dixie Chicks about Clear Channel Communications (for you non-US types they own about 1000 radio stations, are allied with the Bush administration, and when on of the Dixie Chicks made a statement against Bush started pulling their music due to pseudo-protests orchestrated by the management of - drum roll - Clear Channel Communications).

	08-06-2005 18:25									#8
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quote: is it acceptable that these enterprises be able to restrict speech and assembly within their jurisdiction

Yes.

	08-06-2005 18:26									#9
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quote: Originally posted by Dracon II For the record, this question refers to major companies that own de facto public space.... not small websites like Apolyton. ACS did provide the inspiration for this question... but they're not the target.

And why not? Why shouldn't ACS be a target if they're committing the same "wrong" you're accusing a larger entity of committing?

	08-06-2005 18:32									#10
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Actually, ACS shouldn't be considered de facto public space. It's more a private club, because "membership" is required to post. As a member, you agree to follow the rules of the site or lose the privilege. Even though membership doesn't cost anything, you are agreeing to follow the rules in return for your membership.

	08-06-2005 18:42									#11
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quote: In the US they are solely private entities, and can censor however they wish. Just ask the Dixie Chicks about Clear Channel Communications (for you non-US types they own about 1000 radio stations, are allied with the Bush administration, and when on of the Dixie Chicks made a statement against Bush started pulling their music due to pseudo-protests orchestrated by the management of - drum roll - Clear Channel Communications).

Not wanting to dig up a non-issue, but Clear Channel couldn't do a thing about the 93%+ of US radio stations it doesn't own. So what if they didn't play the DC? For a group that's averaged $20,000,000 in US earnings since 2000 on years that they've released albums, one can hardly claimed that they were monetarily damaged by Clear Channel's decision.

	08-06-2005 18:46									#12
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quote: Originally posted by JohnT And why not? Why shouldn't ACS be a target if they're committing the same "wrong" you're accusing a larger entity of committing?

Its a question of scale. I'd rather not pose this question as an absolute... because if I were to propose that freedom of speech and assembly should be extended to all forms and proportions of private property the debate would most likely become focused on relatively silly questions like whether or not anti-abortion activists have the right to protest in one's front yard... which would detract from the thrust of my question.

It is quite evident that the focus of public life and intercourse is becoming increasingly situated within the infrastructure of private property. For example, if (when) the Australian Government privatizes Telstra all telephone communication will take place using private facilities. I assume this is the case in the USA. Given that telecommunication has become an essential part of our life, and one of the most effective means of direct communication between citizens, should the citizen's right to free speech be protected even if that speech is carried out using privately owned infrastructure? It is a hypothetical, and I would say that freedom of speech over the telephone is not restricted (beyond the dictates of law, of course), but should Telcos be able to determine what can or cannot be said superfluous to the dictates of the law, bearing in mind the importance of telecommunication?

	08-06-2005 18:51									#13
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They don't have that right/power anyway. Since the phone system of the US has alway been private, the issues you're worried about have been dealt with since, oh, 1930 or so.

There are thousands upon thousands of relevant laws, regulatory rulings, and other decisions that control what the telco's can and cannot do - and that's just at the Federal level. At the state level, where the Telco's are actually granted monopolies, the number of rules and regulations exponentially increase.

Given that ATT, SBC, etc. barely even control their own infrastructure, how do you propose they use it to control speech?

	08-06-2005 19:04									#14
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quote: Originally posted by Ming Actually, ACS shouldn't be considered de facto public space. It's more a private club, because "membership" is required to post. As a member, you agree to follow the rules of the site or lose the privilege. Even though membership doesn't cost anything, you are agreeing to follow the rules in return for your membership.

Agreed. ACS is not in a position to significantly control access to and the flow of information. In the OT for example, it serves as a forum for people to discuss the information they've accessed from other sources. It's neither a primary source of information nor a primary mode of communication.

	08-06-2005 19:08									#15
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quote: There are thousands upon thousands of relevant laws, regulatory rulings, and other decisions that control what the telco's can and cannot do - and that's just at the Federal level. At the state level, where the Telco's are actually granted monopolies, the number of rules and regulations exponentially increase.

Ah, I see... so there is a recognition that, if a private enterprise does serve an essential purpose on a large scale, then it is not necessarily free to regulate itself and its clients as it pleases.

A good precedent

	08-06-2005 19:28									#16
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You can exercise free speech on public areas of private property if you don't obstruct business.

	08-06-2005 19:34									#17
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quote: Originally posted by Ming Even though membership doesn't cost anything, you are agreeing to follow the rules in return for your membership.

Well, USUALLY that is the case.

	08-06-2005 19:39									#18
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quote: Originally posted by Dracon II For the record, this question refers to major companies that own de facto public space.... not small websites like Apolyton. ACS did provide the inspiration for this question... but they're not the target.

There's a not-so-subtle difference between use of "public" property and use of private property as an invitee.

	08-06-2005 19:39									#19
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Actually Clear Channel was able to damage the Dixie Chicks, because of the the nature of the extent of their penetration of the pop-music radio market in the US. Their own site puts their market penetration at 110 million listeners in the US, about 40% of the market. They are big enough to make the lead singer for the Dixie Chicks to back off. I'm not saying that is the same as direct censorship, but economic coercian can be almost as effective.

	08-06-2005 19:43									#20
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quote: Originally posted by Dracon II So if the phone companies have the right to regulate what people say using their services, even if it would be a violation of the 1st amendment had the US Government tried to do the same thing?

No, they have no specific private right, except to the extent that you have to contract with them to use their service, and you may be subject to terms of that contract.

The regulation of content (for example, harassment, making threats over interstate phone lines, wire fraud, etc.) is governmental, and based on a public benefit (the right not to be harassed, stalked or defrauded, etc.) for which the communications medium is incidental.

	08-06-2005 19:47									#21
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quote: Originally posted by shawnmmcc Actually Clear Channel was able to damage the Dixie Chicks, because of the the nature of the extent of their penetration of the pop-music radio market in the US. Their own site puts their market penetration at 110 million listeners in the US, about 40% of the market. They are big enough to make the lead singer for the Dixie Chicks to back off. I'm not saying that is the same as direct censorship, but economic coercian can be almost as effective.

So? Does the economic coercion come from Clear Channel, or from a significant enough portion of Clear Channel's listener base which is the ultimate source of Clear Channel's revenues. Clear Channel has a right not to broadcast what it doesn't want to broadcast.

I'm really sure that Clear Channel was what caused Natalie Mains to back off - record burnings, rabid loudmouths making threats, etc., probably had more of an impact, and the Dixie Chicks probably got just as much of a benefit from the publicity as they lost, if not more in the long run.

	08-06-2005 19:48									#22
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quote: Originally posted by shawnmmcc Actually Clear Channel was able to damage the Dixie Chicks, because of the the nature of the extent of their penetration of the pop-music radio market in the US. Their own site puts their market penetration at 110 million listeners in the US, about 40% of the market. They are big enough to make the lead singer for the Dixie Chicks to back off. I'm not saying that is the same as direct censorship, but economic coercian can be almost as effective.

C'mon, they made $22 million dollars in 2003 (the year of the controversy(which started in March, 2003)) - considering they made $25 million in 2001, you can hardly make a strong case that they were damaged.

Their penetration is 110,000,000 listeners, their audience is an order or two of magnitude smaller than 110mil.

	08-06-2005 19:49									#23
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It certainly made me go out and by the most recent Dixie Chicks cd. Glad I did, too. It's actually decent country music, unlike so much of the crap on the radio these days.

	08-06-2005 19:50									#24
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quote: probably had more of an impact, and the Dixie Chicks probably got just as much of a benefit from the publicity as they lost, if not more in the long run.

"The only bad publicity is no publicity."

	08-06-2005 20:33									#25
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There was some good evidence that Clear Channel management, or at least the management of some of their stations, helped coordinate the CD burnings, etc. If my memory serves me, the Dixie Chicks' top 40 song took a pretty hefty hit (it dropped in the ratings) once Clear Channel stopped playing their single.

My problem is once corporatitions have that level of control of the media, at what point does their support of a specific political agenda, while they are using a public resources, i.e. radio frequencies, that they have duly paid fees for, start to put free speech at risk. Imagine instead a group with their first break-out album smaller than Dixie Chicks.

Of course the proper solution is to impose shareholder activism that says that the shareholders own and control the corporation. Then any political action that does not enhance the company will have repercussions for the CEO and Board. A true free market solution - which of course only works for publically held companies.

	08-06-2005 21:52									#26
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quote: Originally posted by shawnmmcc There was some good evidence that Clear Channel management, or at least the management of some of their stations, helped coordinate the CD burnings, etc. If my memory serves me, the Dixie Chicks' top 40 song took a pretty hefty hit (it dropped in the ratings) once Clear Channel stopped playing their single. My problem is once corporatitions have that level of control of the media, at what point does their support of a specific political agenda, while they are using a public resources, i.e. radio frequencies, that they have duly paid fees for, start to put free speech at risk. Imagine instead a group with their first break-out album smaller than Dixie Chicks. Of course the proper solution is to impose shareholder activism that says that the shareholders own and control the corporation. Then any political action that does not enhance the company will have repercussions for the CEO and Board. A true free market solution - which of course only works for publically held companies.

They (Dixie Chicks) got their message out, and people are still talking about it, so how again were they censored?

If someone stated an opinion that pedophilia in general and sodomy of infants in particular ought to be legal and accepted in society, is Clear Channel or any other private party obligated to air that message and give it an audience?

It's a private communications company, and the FCC already imposes limits on how many stations in a given band can be owned in a given market area by the same party, such that there aren't monopolies. Nothing prevented Natalie Mains from running her mouth (and I pretty much agree with her), but making a point of stating controversial messages (of any nature) may not coincide with a multimillionaire performer's commercial interests. Oh well.

	08-06-2005 22:40									#27
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Btw there is one major exception to 1st Amendment rights not necessarily applying to private organizations and that is in the 'company town'. There, they cannot stifle free speech on the basis that they own an entire town.

	08-06-2005 23:06									#28
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MTG, Clear Channel had every right to ban their actual speech about Bush, what I am talking about is retaliatory banning of their music which had no anti-Bush message. At the point at which corporations can threaten individuals for their support of opposing positions on their own time, free speech and freedom itself are at risk. If the Dixie Chicks had been Clear Channels corporate representatives, then that is no longer free speech on their own time. That was clearly not the case here.

We had an individual who heckled George Bush during one of his campaign speeches. His company fired him. Since he was there through his company, i.e. they supplied the tickets, they were well within their rights. But what is he had scammed the GOP screeners and obtained the tickets on his own? That is why the entire interaction between Free Speech and Corporate rights makes me nervous. If you no longer have the right to demonstrate, or even talk about, your political beliefs outside your job, or they can terminate you, then free speech becomes an illusion.

Imran, since I lived in Appalachia for many years, what was the precedent? I'm curious if is was a result of the company towns in the Coal Fields.

	08-06-2005 23:22									#29
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Shawn - my point is that Clear Channel has every right to play or not play anything it wants, and that's not censorship. If there's an actual conspiracy between multiple, independent parties to deny the Dixie Chicks any airplay anywhere, then you might be on to something, but a boycott or a financial decision based on expected audience response, or any other private decision, is not censorship. Not facilitating or sponsoring communication is different from preventing it.

Employees are a different situation, but the law on employee political activity and whether or not it is grounds for termination for cause is pretty well set.

When termination for cause is not needed, it comes down to issues of at will employment under various state laws, and the right of each party to enter into or leave the employment relationship for any reason.

	08-06-2005 23:33									#30
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MtG, Clear Channel was NOT making that decision based on any commercial decision, though there were window dressings to make it appear that way. It was based on the political affiliation of their management - who are major backers of the GOP - and may actually have been against the interests of the shareholders. If it had been a record store, it would have been clearcut. But if you read my earlier posts, there are using a public resource, and that is where I get extremely nervous. If you look at the abuse of various forms of communication, i.e. yellow journalism, you will understand why I am made very uncomfortable by this. I would be just as uncomfortable if it was being done in favor of the Democrats.

Your point about at will employment is correct, and makes my point for me. As very large corporations increase their reach, and various private databases can keep track of many things, we may not be very far from a possible "black-list" capability for those foolish individuals who do not keep their mouths shut and quiet, and only show their disapproval by voting. That would also be a major threat to democracy. That is my point, that neither situation is a healthy one for a country to find itself in.