First Amendment blues

RECENTLY I POSED the question of whether First Amendment freedoms could get lost in the fine print of end-user license agreements. From the response I’ve seen from some readers, I fear the answer may be yes. Too many software customers may have already accepted the UCITA-like (Uniform Computer Information Transaction Act) principles that would make it possible.

Our previous discussion centered on Network Associate’s shrinkwrap/clickwrap ban on product reviews without the company’s permission and similar license terms from other software publishers (see ” A Censorship Test Case ,” March 4). The great majority of reader responses to this and other censorship clause examples were pretty much what you’d expect: disgust that software companies would try to block public review and criticism of their products, and praise for the New York Attorney General’s lawsuit against Network Associates. But a not insignificant minority had a very different take that caught me by surprise.

“Read the First Amendment. It says ‘Congress shall make no law … abridging the freedom of speech, or of the press,’ ” wrote one reader. “It doesn’t say businesses can’t abridge free speech, and in fact corporations restrict commentary all the time … InfoWorld won’t let me make copies of your column and sell them on the street, will it? That’s a restriction on my free speech! How can you do that? … You and Attorney General Spitzer have to realize that McAfee is perfectly within its constitutional rights.”

Now, I should say that most of the readers who expressed this view weren’t particularly happy about the censorship restrictions, but it was their honest belief that companies have the legal right to say who can and who can’t review their products. I’m no constitutional scholar, but I’m relatively certain they’re wrong. We are living in an era of increasing encroachment on our traditional rights, so it’s easy to see how people might believe there are no limits on commercial censorship. And the more who believe it, the more likely it will one day come to be the case. So let’s look a little deeper into this.

It is true that the Constitution only specifies that Congress shouldn’t abridge these rights, but the Constitution doesn’t specify a lot of things. And it’s also true there are many legal restrictions placed on free speech in commercial settings. What’s important is how the courts have interpreted the First Amendment principles when they come into conflict with those commercial restrictions. For example, a newspaper that reports a story based on leaked documents from a tobacco or automobile company is probably at least technically guilty of violating the trade secret laws that exist in most states. So how can the press publish such stories? Because courts have often ruled that, on public policy grounds, the public’s right to know outweighs these commercial restrictions, even those sanctified by copyright or trade secret laws.

And there’s a big difference between those laws, which are unquestionably enforceable in all but rare circumstances, and dubious boilerplate legalese in a clickwrap license. In fact, even those who are most willing to see shrinkwrap agreements treated as binding contracts — that is, the creators of UCITA — don’t think the McAfee VirusScan censorship clause is enforceable. The VirusScan clause has often been discussed during the UCITA debate, and the law’s proponents have always argued that courts would refuse to enforce it on public policy grounds. Whether that would be true under UCITA is another question, but it’s one we can perhaps defer as long as UCITA remains legislatively stalled.

Recent history would have been very different if these readers’ interpretation were correct. Do you remember SoftRam 95, the memory enhancement program recalled when benchmark testing showed it didn’t enhance anything? It caused something of a stir late in 1995, but what you might not remember is that the original benchmarks were not done by a publication but by an independent lab commissioned by the maker of a competing product. After the truth was out, a number of publications ran tests of their own to confirm it. In the process, at least one publication reported that Syncronys, SoftRam’s publisher, tried to get the review killed by warning it was ready to sue the publication for any misleading statements, defamation, copyright infringement, or trade secret violations.

If commercial censorship was indeed sacred, a company in Syncronys’ position could make such threats stick, and think about what kind of world that would be. If any company can deny publications, labs, and customers the right to run objective tests of their product and go public with the results, it would be a very rare company that allowed objective reviews. That’s not the case yet. But we live in a society where every day it gets a little harder to speak your mind without someone slapping a lawsuit on you, so let’s not be too sure that the day isn’t coming when software publishers and other big businesses will convince courts to make commercial censorship untouchable.

After all, just last year Microsoft officials defended their use of the censorship clause in the SQL Server license by telling InfoWorld that such license restrictions are intended in part to prevent “disreputable competitors from fabricating bogus tests and broadcasting results that purport to show their superiority.” In other words, no Microsoft competitor should be allowed to commission a lab to run benchmarks to see if Microsoft products work.

By the way, several readers have recently noticed that Microsoft’s censorship clause has crept into some of the .Net clickwrap agreements. Perhaps those who feel there are no limits on commercial censorship are just seeing the future before the rest of us.