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JamieCrooksFirstPaper 4 - 12 May 2013 - Main.EbenMoglen
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Free Speech and the Marketplace of Identities | | | Second, another premise underlying the marketplace of ideas is that it is open to any and all participants; thus an idea’s success in the market will tend to correlate with that idea’s merits for the public at large. By contrast, only a privileged few can buy and sell in the marketplace of identities, and their interests are at least widely divergent from -- if not diametrically opposed to -- the public’s. Just like the polluter whose profit motive would lead to disaster if left unchecked, so too do traders in personal data need to be monitored and regulated. To erect a First Amendment barrier to government intervention in this market not only misunderstands the nature of the “speech” at issue but also grossly underestimates the damage such an unregulated market is likely to wreak on society. Thus, insofar as the result in Sorrell was by no means required by the text of the Constitution, the Court should have thought through the implications of its laissez-faire directive.
In an age where the net can turn every idea or expression into a good that can be bought and sold, we must be especially vigilant against the personal intrusions of massive data mining. While today’s government has shown an unwillingness to act in our interest on this front, broadened awareness and reform-minded political movements may be able to reverse this trend. But insofar as the Roberts Court is constitutionalizing its vision of “freedom,” it is taking that option off the table. While paeans to individual liberty and free trade in ideas like those in Sorrell have intuitive and rhetorical appeal, reflexive reliance on such maxims is effectively ceding control of our destinies to those who seek to control them.
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This is one way to look at the situation. The other, which I
presented to you at some length, is that what the Court says in
Sorell is a basic First Amendment proposition that cannot be
denied if you want to keep the thing at all: the provision
guarantees our right to learn about people, think about what we
know about them, and communicate with them directly to the
extent they are willing, without being told by the State what
we may or may not say. No one is purporting to control false
advertising, fraud, or other crime, which is incontestably part
of the State's police powers. The essence of the legislature's
case is that the advertising is effective, which is hardly a
compelling reason to prohibit it.
We have had for a generation parity for commercial speech under
the First Amendment, which—in a very capitalist,
consumerist society also dedicated to the freedom of
speech—is the only sensible outcome. I don't see how one
is to disagree with Justice Kennedy: "incorporation" invests
the due process clause with substance, and over state
legislation that trenches upon the particular freedoms
incorporated in the due process clause from the bill of rights,
we have substantive constitutional review by the judges.
That's Lochnerism if Mapp v. Ohio or _Virginia State Pharmacy Board v. VCCC_are. But it seems to me that reduces an idea to an epithet.
In any event, it seems to me fine that we disagree, but I wish
the draft didn't simply take for granted that there is no other
side worth answering. Much of your argument would be addressed
to a legislature that could do what you suggest only if not
constitutionally prohibited, but the constitutionality of your
policy is unestablished. Might I at least have the benefit of
some reasons why my objections are immaterial?
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