Jack Balkin, on his blog, has just posted a paper under the above title on SSRN. It is a very insightful consideration of some very important theoretical and practical issues. Here’s abstract:

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed withing a larger set of concerns that I call knowledge and information policy. The essay uses debates over network neutrality and intermediary liability as examples of these trends.

Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. Properly designed, it gives people opportunities to create and build technologies and institutions that other people can use for communication and association. Hence policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values.

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This post is by way of an out-of-date footnote to the previous two. I never thought I’d see the day when I would willingly come to the defence of Michael O’Leary, CEO of Ryanair, but – never say never – it’s happened! O’Leary revels in his unpopularity, a result as much of his airline’s lack of frills as of his straight-talking defence of this policy. Even though I’ve been a victim of his airline’s policies, I am more than happy to assert and defend his right to talk straight, not only in defence of those policies, but also to debate the merits of his airline taking over another.

Last week, he and Dermot Mannion (the CEO of Aer Lingus, the airline in Ryanair’s sights) had been scheduled to engage in just such a debate on Prime Time, RTÉ‘s flagship current affairs tv program, but the Irish Takeover Panel considered that it would constitute a breach of take over regulations, and the debate was cancelled. Nothing daunted, O’Leary sought to quash this ‘gag order’, and commenced judicial review proceedings. However, given the failure of the takeover, the court challenge was withdrawn. This is a pity.…

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