• Private activity has become the site of the activity which we would seek to limit, if we weren’t seeking to encourage the activity (for other foolish reasons) which harms us
• 18th Century logic was about places, but we don’t care about places, we care about identities, and the language of the 18th Century is less useful than the logic
• Too easy to reinterpret according to the judges’ preferences, but in truth it no longer matters
• The rights have not disappeared, they’re just being violated → circumstances of unfreedom still exist, but the descriptions no longer explain why there is something unjust about the circumstance
• No longer a language to talk about this kind of justice since the 18th century language has failed us

Part I: it’s all one sentence: Congress shall make no law (an absolute) Respecting an establishment of religion, or Prohibiting the free exercise thereof; Or abridging the freedom of speech, or of the press; Or the right of the people to peaceably assemble, and petition the government for redress and grievances

“Congress shall make no law” is not a normal formulation

• Article I has a bunch of language about the kinds of laws that congress could pass, but this is a specific cutback
• Clarification of the extent of imperial legislative power Congress couldn’t make a law respecting an establishment because states already have establishments (Massachusetts, Virginia, etc.)
• We’re not going to disturb the state of religious tolerance, for or against, through imperial legislation
• All other clauses interpretations have to live with this limit
• But it shall protect against any prohibition of free exercise
• You can tell the difference between establishment and persecution → it is committed to a deeper neutrality against establishment, but only stops “prohibitions” of exercise
• Abridging is a more flexible standard protecting speech, press, (non-riotous) assembly, petition (or dissent) because it allows anything that comes short of “abridging”
• History of the Glorious Revolution informed what limits the imperial powers (Stuarts v. Parliament)
• Not a check on the executive, which is presumed to be unimportant, because the legislative power is vested in the Congress →
• Largely ignorable by the executive, see the Alien & Sedition Acts 15 years later
• Imperial power did what imperial power always does, as the antifederalists predicted
• It was successful at making America an imperial power
• Maintenance of slavery requires a battle for hearts and minds → imposition of ignorance for any reason is a work of political unfreedom (information barriers established)
• Inseparable from maintenance of a system of slavery
• Imposition of ignorance has to be the law
• Teaching people that they have the right to be free, and they have the right of revolution is unthinkable
• Radical control of information is required → it’s a logical conclusion to make it a crime to teach a slave to read
• Empire will have to defend the great wall of Mason-Dixon, which is all about the network (public mails) → these people understood that the network is a public entity
• Duty of Congress for there to be postal service
• Considered alongside the First Amendment, it’s a provision that has been pretty ignored
• There is no Supreme Court case denying the prohibition of abolitionist material through the posts before the Civil War
• Emerging from the Civil War, we were a different country legally and factually
• After the Civil War, we were much more homogenous in our tastes and behaviors
• The empire is so coordinated that there are time zones requiring coordination (for the first time in history) → railroad based organizations require much more management communications
• Telegraphy assumes a unified market with transmission of data along the railroads
• End to end transmission of data across a continent becomes a thing to be taken for granted
• The transition from one empire to the next is violent, but not candid, and the 1st Amendment was made by the prior empire
• Marx: interested in the collapse of a feudal, slaveholding regime in the face of rising capital
• In the face of European pauperism
• In the face of some commitment to freedom
• With knowledge that what is happening is not going to be described in terms that make the most sense in an analytical point of view
• 660,000 people die and we get a much more cohesive and firmly bound empire than the European nation states of the 19th Century
• Railroad stock also ties people to the empire, and those bankruptcies are covered by the empire
• The empire was not going to stand for keeping people uneducated on a mass scale, so the direct election of Senators and Jim Crowe laws allowed reimposition of ignorance
• Gitlow v. New York: anti-syndicalism ordinances in New York allowed prosecution of anarchist Jews distributing leaflets, and the court says that the 14th Amendment applies the 1st Amendment to New York
• Same in Whitney. New Deal court begins incorporating amendments, even though they still acknowledge that you have to say “Mother, may I” in the lower courts
• Because we’re in a unified empire, it’s not just that the imperial legislature is allowed to deal with speech, it also have to apply to lesser legislatures
• Holmes: of course the empire would fall if the Supreme Court couldn’t declare state statutes unconstitutional
• Once applied to the state, the establishment clause is turned on its head (historically)
• One consequence of revolution is that states have to get rid of their religious establishments
• We committed ourselves to an America of a million religions in order to unify the empire more cohesively
• Voltaire: “the English are a curious people; they have a hundred religions, and only one sauce.”
• Now, nobody can make laws “abridging” the freedom of the speech or the press → no legislature can impose itself on the background space of the parties drawing themselves together to form the empire
• We’re talking about the abridgment of something nobody can define, so the court immediately begins defining “speech”
• Thoughtful people began to try to think of a system of free expression (as Emerson put it), and the connections between democratic theory and freedom of speech
• Background of the history of what governments can trench upon
• We need to spend a week understanding the “, or” between speech and press → do we mean the same thing or two different things?
• The death of newspapers is contained within that inquiry
• We are approaching the moment when newspapers are dead → people are allowed to own the press…is this the result of lawfulness or lawmaking; permissive or presumptive?
• Can we step on Mr. Murdoch’s foot?
• For now, we’ll claim it as a whole entity: freedom of speech or press = right to communicate
• If this is a right to communicate, we’ve got some law undoing to do
• Question of positive/negative liberty is irrelevant because the thing is what it says: “no law shall be made”
• Is it a significant abridgment when Mr. Murdoch got all of ours with licenses, powers, and rights from the state, that without which, it would be a much more democratic system of ownership
• Does the fact that he can charge for some system make it an abridgment if we can get around it? Or is it an abridgment if the state can do it for cheaper? Or is it an abridgment simply because you shouldn’t do it?
• 20th Century involves the industrialization of information distribution, but that system is pretty much dead
• Peaceable assembly and petition had an obvious meaning: streets and parks belong to the people, which meant a lot about the use of public spaces
• Placiness distracted this line of inquiry
• McCulloch? v. Maryland: Marshall dealing with objections about the states coming first because people were assembling and ratifying “in their respective states” → yes, it was in their states, but where else could they have assembled?
• To get to the notion that the people have the right to
• “The commonwealth never removes into the alien courts of the empire” mentality
• Simply means: don’t do anything that is going to destroy our ability to communicate safely (no malware, Outlook, etc.)
• You surely cannot use law to prevent people from peaceably communicating on the internet → question of what constitutes “restriction” (“reasonable network management”?)
• How should communication between the state and its citizen look under 21st Century circumstances
• Barrier of prosecution of seditious libel is not an answer
• Broadcasting authorization may be unconstitutional: it abridges the freedom of speech and prevents peaceable assembly
• Certainly doesn’t require a finding of technological necessity, which was the always the rationale in Red Lion
• All the action happens in the Due Process clause → not merely did we nationalized the empire on the basis of due process and equal protection of the laws (privileges and immunities)
• When you have the incorporation machine calibrated to working through the due process clause, you just pull the lever and stand back
• Took them until 1925 to figure out that it wasn’t allowable for New York to call expressing opinions while Jewish is a crime
• You can’t do it to Gitlow → about the fact that people have to be treated equally, and you can’t just pretend that there are second-class rightsholders anymore
• If this is the principle that applies to freedom of speech, then we have work to do
• The press may not be a separate privileged entity
• Privileges are handed out to campaign contributors and other entities
• We’re in a world of remedies for inequality
• Requires energy, oversight, persistence
• Some equitable restructuring of the communications → some relief for unequal treatment under the hands of the law
• What does it mean when everybody has machinery for the petition of government in their pocket all the time?
• Are we talking about 311? Citizen’s veto? Or a website where you can say what you want about Obama? Do you have the right to get answers for your questions? Content of FOIA? Openness of public records?
• Redress of grievances is very 18th Century: redress, petition, grievances have different meanings → are they new or the same?
• Doesn’t really matter if it’s the telegraph, telephone, or the internet, just that there is some infrastructure for communications
• The “place” to begin may not be the internet because the internet is not a place, it’s a social condition of immediate potential interaction without an intermediary
• Something we are always interested in: Privacy.
• Secrecy. Can we keep our secrets? Permissions? Encryption?
• Anonymity. If my content is known, can I keep my identity a secret?
• Autonomy. Who has control over both my identity and the substance of what I have to say (transactions, commerce, intercourse in constitutional language)
• Congregation and relationship and the expression of political dissent, desire, and determination in the context of the new social relationships and interconnection
• Privacy regulation on the net is just “tell people what you’re going to do and don’t break your promise,” while the FTC takes a nap
• Technologies that produce freedom are capable of working anywhere, even though Americans should have the advantage of equal protection under the law
• Less need to think about other law so much as other circumstances around the world
• Fate of the first amendment in the period of the internet is a potential generative social technology
• Can be a model for others to use
• Part 4 was lost when we started using Facebook. Part 1 may be different.
• Here, the partisans are the media lords who are almost dead anyway
• Entertainment industry is an enemy of anonymity and marketers are the enemies of autonomy through lacking privacy
• Technological freedom was designed to confront these issues
• Because scum have rights, and we have problems imagining how to redesign media to accept the principle of equality → anti-aristocratic consequences are always disturbing
• Going to be regarded as grossly impractical (pretty much the same way as the prohibition of abolitionist materials in the mails)
• As an alternative to the living dead constitution, we will have the advantage that people below the age of 40 might be able to figure out why we care
• Pentagon Papers is a hard case once newspapers are antique → “why didn’t he just put them on the web” is a pointed question at this point
• When wikileaks meets total information awareness, the landscape is not one that can be explained by “a system of free expression” → it’s too old
• Secrecy and Anonymity on tap for next week
• Specifically McIntyre and why it's 1995 before anyone gets around to it
• Silly leaflet by an unknown man?

-- RickSchwartz - 16 Feb 2009

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