Legal Commentary

Interesting Free Speech Question:

By David Post

Ari David, who?s running for Congress against long-time incumbent Henry Waxman, raises an interesting and troubling free speech issue on his blog here. Apparently (taking everything he says to be factually correct) he hired some folks to create an iPhone app with text (not surprisingly) highly critical of Waxman ? e.g.,

?HENRY WAXMAN? SUPPORTED Cap & Trade legislation that would have brought us $7 a gallon gas and as President Obama has stated would make electricity rates ?necessarily sky rocket.?
VOTED TO CUT Medicare spending by a half a trillion dollars which would severely hurt seniors. . . .
TRIED to make over-the-counter vitamins and supplements prescription only . . .
TRIED TO STRANGLE family farms with insane Soviet-Style regulation . . .? 

Apple, however, has turned them down, on grounds that the app is ?defamatory.? 

Does David have any legal recourse here? Probably not. The First Amendment, of course, does not grant him any free speech rights against private actors like Apple, and even if Apple is using the defamation rationale as a pretext for denying his application on purely political grounds (e.g., they like Henry Waxman), there?s nothing (that I know of, anyway) that would stop them from doing that. [David does make an interesting suggestion ? that Apple?s actions constitute an ?in-kind contribution? to Waxman?s campaign, which if true would, I suppose, trigger various election law reporting/disclosure obligations). 

It makes for a nice test case for one?s views about the inapplicability of the First Amendment to private actors ? should Apple have some non-discrimination obligation when it comes to allowing people space on their app platform?
[And incidentally, I have a question that I bet some of you can answer for me. What does it mean, exactly, that Apple has rejected their app? I understand that it means that they won?t offer it at their App Store ? but will it not function on anyone?s iPhone unless and until Apple approves? Or if David were to distribute it himself ? off of his own website, say ? would it work as intended?]

Full post as published by The Volokh Conspiracy on May 20, 2010 (boomark / email).