05/31/2010 02:42 am ET Updated May 25, 2011

Apple's vetting of iphone apps is ham-handed but not an illegal threat to free speech

By Peter Scheer

In the beginning there was the internet. It was raw, ungovernable and vast in its multiplicity of voices. Then came the Apple iPhone (and more recently, the iPad), offering a curated internet experience, using "apps" vetted by Apple for conformity to company standards for content and quality.

Millions of Apple i-device users inhabit a gated community within the internet's urban sprawl-an Ozzie-and-Harriet neighborhood that is free of graffiti, explicit sexuality, and disrespectful satire of American political figures and institutions. Apple, through its control of the apps available for downloading on the iPhone and iPad, is taming the internet to a degree that would make Chinese censors envious.

A bit overwrought, to be sure. Still, this characterization reflects the deeply-felt suspicion among segments of the online community, including many long-time fans of Apple CEO Steve Jobs, that Apple's dominance of the smart-phone market--at a time when internet use is shifting worldwide from PCs to hand-held devices--represents a threat to free speech.

Is there any basis for this fear? Not really.

Apple is not a government censor. Despite Apple's considerable and growing power--it recently displaced Microsoft as the world's most valuable tech company--Apple is a private firm and, as such, it cannot infringe free speech rights. Governments, in their law-making and execution of the laws, have a monopoly in that department.

In fact, from a First Amendment perspective, Apple's selection of apps for downloading on iPhones and iPads--the very activity for which it has been drawing fire--is constitutionally protected. Like a magazine's choice of articles to publish, and an art gallery's decisions about what works of art to exhibit, Apple's choices of apps for the iPhone are an exercise of editorial discretion. So far as the Constitution is concerned, Apple, as a private entity, is under no obligation to make these choices in an ideologically neutral or "fair" way.

But that's not the end of the inquiry. Some First Amendment principles are also enforced though antitrust laws, which can be used to contest actions by private firms that restrict competition by limiting consumer choice. According to reports, the Justice Department's antitrust division is already investigating Apple's online music sales and strategy for beating back competition from Amazon. An extension of that inquiry to an antitrust challenge to Apple's business practices in the smart-phone market is not far-fetched.

An antitrust suit would be based on the claim that Apple has achieved a monopoly in the smart-phone market. While that status may have been lawfully obtained, the government would argue that Apple's market power, and in particular its choke-hold over the market for apps that run on iPhones and iPads, require that Apple curtail practices that limit consumer choice or block competitors.

If this sounds familiar, that's because a legal challenge by the U.S. Justice Department against Apple would be a replay of the titanic battle a decade and a half ago between the Justice Department and Microsoft. The government then claimed that Microsoft, because of its monopoly over PC operating systems and control of the desktop, had to be subjected to curbs on practices that limited consumer choice--in particular, the choice of internet browsers.

Although the government won its case against Microsoft, time has vindicated Microsoft's argument that antitrust regulation is pointless in an industry characterized by rapid technological change. Microsoft stressed that even dominant firms are powerless to suppress competition when they are at constant risk of losing their markets to a new and disruptive technology that is exploited by a new and disruptive competitor.

Google, which did not even exist at the time of the Microsoft antitrust trial, is the disruptive competitor that Microsoft's argument prophesied. Google's internet-based office applications are free substitutes for Microsoft's pricey Word, Excel and Powerpoint products. Google's success in its core search engine business has marginalized Microsoft's many internet ventures. Google is Microsoft's nightmare.

But back to Apple. . . . Just as Google defanged Microsoft's alleged monopoly in operating systems, Google poses a competitive threat to Apple's iPhone business--and that threat undercuts any potential legal claim, based on the antitrust laws, against Apple.

Google's answer to the iPhone is the "Android" operating system for smart-phones. By licensing Android, free, to multiple handset producers and cell phone service providers; by providing incentives for producers of apps; and by creating apps that capitalize on Google's strengths in search, voice recognition, and translation technologies; Google has achieved a credible market presence in a short time.

Competition between Google and Apple should assure that consumers will have choices. If Apple persists in rejecting apps merely because they make fun of public figures, for example, the rejected apps should be available on the Google platform (and vice versa). That is the best we can hope for. It is also a better outcome than anything that might be achieved through litigation.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit dedicated to free speech and government transparency.