Wednesday, February 21, 2007

Commercial speech: political economy and public data

Dr. Karen Markin, Director of Research Development, University of Rhode Island, It’s Not the Thought that Counts: A Political Economy of Obscenity. She’s interested in obscenity as product – a book, a video, etc. When restrictions are commerce-based and not content-based, government can argue for greater control. There are many modalities of regulating obscenity, from zoning to banning the use of the postal service for sending obscenity. The spending power also enters the picture: US v. American Library Ass’n, requiring public libraries to use filters on internet access.

When obscenity is commodified, it’s easier for the state to control it, for example by making sure it’s limited on television. Commercial media are highly vulnerable to government control.

Reza Dibadj, University of San Francisco, The Political Economy of Commercial Speech. The First Amendment can be a way around Chevron deference – a way to assert institutional authority. Another question: why are we so eager to attack some regulatory regimes and not others? (My answer: I’m not sure a lot of the folks who want full protection for commercial speech like other kinds of regulation either.)

The general trend: increased protection for commercial interests, pushed by corporations portraying themselves as underdogs, e.g. Nike. Also, various front groups and think tanks with predictable political positions. Perhaps more important, some prominent and distinguished intellectuals support increased protection for commercial speech – the influence of the Chicago school, which is generally anti-regulation. They perceive similarity between the market for expression and the market for goods and services, and thus want laissez-faire for both. Likewise, the public choice school sees regulations of both speech and nonspeech as similarly troublesome because government is likely to be bad at whatever it does.

Yet commercial speech remains different from core First Amendment speech. The urge to increase commercial speech protection is a new form of attack on economic regulation. Kozinski equates speech with economic regulation in his criticism of the commercial speech doctrine; it’s also no coincidence that Virginia Pharmacy comes out of a deregulatory era. But the First Amendment is an odd source for a ban on types of economic regulation.

If corporate speakers are so concerned about government regulation, why don’t we see as many attacks on IP from the proponents of full protection for commercial speech? Because IP helps the big corporations. As Prof. Piety has written, Nike’s commitment to free circulation of information doesn’t extend to free circulation of the swoosh.

Returning again to corporate speakers as rights-bearers: when a corporation speaks, who is speaking? The managers? The shareholders? There are competing interests, and it’s not obvious where the “opinion” of the company comes from – it’s the managers in practice, but that might not be optimal.

Dr. Genelle Belmas, Cal. St. Fullerton Department of Communications, & Brian Larson, attorney, Second Class for the Second Time: How the Commercial Speech Doctrine Stigmatizes Use of Aggregated Public Records. New York prohibited the sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes. A property tax reduction service wanted access to the lists; a straightforward application of the law banned it. But it could have provided consumers with useful information. This is the core problem Belmas & Larson address: access to public records by commercial users.

State and federal access to information laws discriminate against commercial providers, either banning them or charging them more. Yet in some cases, commercial entities are in a better position to make beneficial uses of information than nonprofits or government.

Concerns: identity theft and general privacy concerns about inappropriate use of information. There’s also a more general concern over the “Big Brother” effect – so much information is available about us that it might be used against us. Also a desire for “contextual identity” – we share information for particular purposes, and passing it on for use in a different context might be wrongful.

Responses: identity theft is overblown by commentators and others. Most of the sensitive information isn’t in public records – most of it is credit card fraud. There were problems in Florida with people being erroneously kicked off the voter rolls because of a mistaken analysis by Checkpoint of who was a felon – but that was done on the government’s behalf, and the only reason we know about it was because of public access to the same records. Maybe in theory contextual identity makes sense, but in practice we have no idea how to manage that – we don’t know how to make case-by-case disclosure decisions. However, government should always redact certain information (SSN, bank accounts), and should abstract identifying information when specific identification isn’t required for the user’s purpose.

The authors aren’t interested in equalizing commercial/political speech. But the flow of information to commercial aggregators shouldn’t be limited based on commerciality; limits should be based on what the information is and how it’s used. Equal access should be the rule.

Examples: a reporter investigating accidents on the highway requests data. That’s a high-value use. A political party requests voter registration records to solicit political contributions. A great number of states limit access to voter registrations to ban solicitations, which the authors think doesn’t make much sense. Soliciting people arrested for drunken driving should also be considered a valuable activity.

At this point, I had to leave for the airport, so I missed the final discussion. Congratulations to the organizers for a wonderful conference.

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