American Civil Liberties Union

It was hard to miss on TV or online yesterday the spectacle of Democratic Congressman Bobby Rush of Chicago being ejected from the House floor for wearing a hooded sweatshirt.

After taking off his jacket and raising the hood over his head during a speech in tribute to Florida shooting victim Trayvon Martin, the presiding officer instructed the Sergeant-at-Arms to give Rush the boot, ostensibly to enforce the House rules on decorum. Now we all know you can’t wear hats while Congress is in session.

I grew up in a non-Nintendo household, and so was weaned on PC games. One of my favorites was the mayor-simulator SimCity. Launched in 1989, the addictive and soon-to-be venerable title became the first name in sleepless nights for kids with limited athletic ability.

After almost a decade, Electronic Arts released a new SimCity title last week, which has drawn critical praise for the game itself and widespread condemnation for extensive EA infrastructure issues that are preventing many purchasers of the game from playing (Minnesota Vikings punter Chris Kluwe even weighed with some colorful criticism). You see, SimCity requires a persistent broadband connection to the internet, even when playing single player, and the game's servers are having difficulty handling the load. (I should note that EA claims the always-on feature is integral to the game, though many believe it is simply a form of digital rights management, or "DRM," put in place to prevent copyright infringement and piracy.)

A few folks have asked me about the recent Second Circuit decision in United States v. Caronia, in which the court found that criminalizing the promotion of “off-label” pharmaceutical uses by a drug company sales representative violated the First Amendment. I cover a lot of commercial speech issues in the legislative context, so let me try to explain why I think the decision is probably right (“probably” being the operative term), and significant.

Professor Tim Wu at Columbia had an op-ed in the New York Times yesterday arguing against First Amendment protections for “automated” speech. Here’s the argument distilled:

As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.