New e-book may ‘kindle’ fires of regulation — or of freedom

Tuesday, January 15, 2008

The medium is the message, and the moment for that message is now. Its name is Kindle.

Everywhere from NPR, Newsweek and USA Today to the blogosphere writ large, CEO Jeff Bezos’ e-book is being hailed as the greatest literary invention since Pi Sheng, and later Johannes Gutenberg, brought us moveable-type printing in 1041 and 1439, respectively. It will, we are told, redefine our notions of books, publishing and even storytelling. Such visionary assessments could be true, but it may do more as well. That something more has to do with the law and freedom of expression.

How we communicate is inextricably linked to the medium by which we communicate. The legal importance of that fact is found in the text of our First Amendment guaranteeing freedom “of the press.” In the constitutional framers’ minds, it was not enough to safeguard “freedom of speech,” the more general right. Something had to be added to stop the government’s suppression of printing presses, to halt practices like the Star Chamber’s 1587 restrictions on the “pryntinge or selling of bookes.” So, too, with oppressive licensing acts governing the press, which drew the ire of John Milton in 1644. “The colonists’ rejection of the various British attempts to impose government authority over the press,” wrote the late Ithiel de Sola Pool, “were incorporated into the American Constitution by the First Amendment.”

The framers clearly intended to protect the new communications technology, the only true mass medium of their time. But since then, courts have puzzled over the First Amendment status of newer methods of disseminating information, including cinema, radio, television, phones, cable and satellite TV, and the Internet. In the process, and contrary to the founding insight of James Madison, we have fallen victim to bifurcated or trifurcated conceptions of First Amendment freedom. That is, the same message may receive more or less constitutional protection depending on the medium used to convey it.

Thus, the government exerts more authority over expression it deems objectionable when it’s transmitted using the electromagnetic spectrum than when the same information is delivered in printed form. Consequently, the Federal Communications Commission may claim authority to restrict the reading of Allen Ginsberg’s colorful poem, “Howl,” on the radio, but the government may not ban the sale of a book containing that poem, even in bookstores frequented by children.

Enter now Jeff Bezos, inventor of Kindle, the e-book. This hand-held book-reading device, weighing 10.3 ounces, has an incredibly readable six-inch screen and can store up to 200 books in its memory. With Kindle, any reader may download anything from Ovid’s The Art of Love to Charles Baudelaire’s The Flowers of Evil, provided the books are available from But what separates Bezos’ Kindle from competing e-book devices, like the Sony Reader, is its continuous wireless connectivity via EVDO broadband service, the kind offered by advanced cell-phone carriers. That technology allows users to download content anywhere, not just at Wi-Fi hotspots.

That technological fact means that the FCC might one day try to regulate Kindle’s content, because that agency administers the law governing cell phones and other wireless devices, as well as broadcast licensees under the Communications Act of 1934 as amended. Could the FCC’s authority to regulate cell-phone frequencies generally extend to regulating the content of e-books that are transmitted electronically? And should it make a difference under the law if Amazon delivers a book in the form of electronic bits rather than in physical form by postal mail?

We may not yet know the actual reach of the FCC’s authority to regulate the brave new world of electronic books. But if history is any guide, it will only be a matter of time before some well-meaning lawmaker or some ardent advocacy group suggests that the use of the “public airwaves” justifies regulating e-books as we do some other mass media. So emboldened, the FCC could one day go after e-books like, say, The Essential Lenny Bruce or an illustrated version of D.H. Lawrence’s novel Women in Love — to protect our children, of course. That such e-book censorship would abridge our First Amendment freedom might not stay the regulatory hand of those determined to fight “filth.”

If it comes to that, we may yearn to hold on to those antiquated things we call books — those devices that contain countless pages of uninhibited freedom. Better yet, we might wish to rekindle the fire in the conviction that our liberties do not diminish when we express ourselves by different modes of communication.

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