Constitutional rights are not as absolute as many believe. There are thousands of everyday examples where the 1st amendment does not protect you. Can you drive through a quiet neighborhood in the middle of the night honking your horn? No. 1A does not give you the right to honk your car horn. Your freedom to honk the horn is weighed against the rights of others to enjoy peace. You can be fined for this behavior, and that's constitutionally OK.
A corporation may have the freedom to moderate content. This is not the same as having the right to commit an anti-trust violation. Anti-trust concerns arise when dominance in one market is used to unfairly compete in an adjacent market.
The freedom of Apple to moderate the App Store is weighed against the rights of others to compete on a level playing field.
A common point of confusion is the distinction between a right and a freedom. You have the right to life, but the freedom to honk your horn. You cannot overstep the right to life by living too much, but you can overstep your freedom of speech by honking the horn too much.
Notice how it's always said that the United States has freedom of speech? Never right of speech?
A healthy economy requires competition. A nation cannot survive without a functioning economy. Somewhat metaphorically, the nation's right to life gives the government a constitutionally legitimate authority to promote economic health, even when that's at the expense of a corporation's freedom of speech. This is the foundation of anti-trust law.
A corporation has no right to cause the total collapse of the United States economy in the pursuit of private profit. That might sound like hyperbole, but without regulations to protect the economy, that would be the inevitable demise of any capitalist society.
Regarding the App Store the least intrusive resolution would require Apple to enable the installation of apps that aren't from the App Store. Someone would have to jailbreak their iPhone today in order to do this, which is an extreme measure and which demonstrates consumer harm. The consumer should be able to install apps directly from the app developer without having to use the App Store at all.
This outcome places a restriction on Apple's freedom, but it doesn't violate any of Apple's rights. Speech is not a right. It is a freedom that is given permissibly up until the point it causes harm.
Other nations are investigating this matter. A corporation cannot use a 1A defense in the EU. Something similar perhaps, but not 1A. If a remedy is imposed upon Apple overseas, it will be easier for the US to later impose those same remedies upon Apple at home. The outcome of this matter may be determined by which nation brings the suit first.
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Constitutional rights are not as absolute as many believe. There are thousands of everyday examples where the 1st amendment does not protect you. Can you drive through a quiet neighborhood in the middle of the night honking your horn? No. 1A does not give you the right to honk your car horn. Your freedom to honk the horn is weighed against the rights of others to enjoy peace. You can be fined for this behavior, and that's constitutionally OK.
A corporation may have the freedom to moderate content. This is not the same as having the right to commit an anti-trust violation. Anti-trust concerns arise when dominance in one market is used to unfairly compete in an adjacent market.
The freedom of Apple to moderate the App Store is weighed against the rights of others to compete on a level playing field.
A common point of confusion is the distinction between a right and a freedom. You have the right to life, but the freedom to honk your horn. You cannot overstep the right to life by living too much, but you can overstep your freedom of speech by honking the horn too much.
Notice how it's always said that the United States has freedom of speech? Never right of speech?
A healthy economy requires competition. A nation cannot survive without a functioning economy. Somewhat metaphorically, the nation's right to life gives the government a constitutionally legitimate authority to promote economic health, even when that's at the expense of a corporation's freedom of speech. This is the foundation of anti-trust law.
A corporation has no right to cause the total collapse of the United States economy in the pursuit of private profit. That might sound like hyperbole, but without regulations to protect the economy, that would be the inevitable demise of any capitalist society.
Regarding the App Store the least intrusive resolution would require Apple to enable the installation of apps that aren't from the App Store. Someone would have to jailbreak their iPhone today in order to do this, which is an extreme measure and which demonstrates consumer harm. The consumer should be able to install apps directly from the app developer without having to use the App Store at all.
This outcome places a restriction on Apple's freedom, but it doesn't violate any of Apple's rights. Speech is not a right. It is a freedom that is given permissibly up until the point it causes harm.
Other nations are investigating this matter. A corporation cannot use a 1A defense in the EU. Something similar perhaps, but not 1A. If a remedy is imposed upon Apple overseas, it will be easier for the US to later impose those same remedies upon Apple at home. The outcome of this matter may be determined by which nation brings the suit first.
Techdirt has not posted any stories submitted by Martin Smith.
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