Senate Going After Roadblock Apps Is a First Amendment Issue


I want to talk about Apple’s rights regarding roadblock warning apps, but first, let’s get something straight: If you get behind the wheel of an automobile while impaired in any fashion, it’s my sincere desire that you be caught and harshly penalized, hopefully well before you hurt or kill yourself or any innocent bystander. Simply put: If you drive impaired, you’re an idiot. If someone you know and love was the victim of a drunk driver, you have my sincerest sympathies; I wish there were better mechanisms to prevent an impaired individual from even getting behind the wheel of a vehicle.

For me, as a creative professional (I’m a writer and photographer), the First Amendment of the Constitution is not selective. It simply states that government cannot tell you what you can, or cannot, say. I may not agree with what you have to say, and may very well find it offensive, but I will defend your right to say it.

The First Amendment in a Nut Shell, and How It Applies

I’m not saying Apple shouldn’t pull the apps; I’m just uncomfortable with lawmakers making the request. According to the U.S. constitution, “[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

If you submit a controversial app to Apple, like a roadblock reporting app, Apple is within their rights to refuse to publish it. Since the First Amendment only refers to “the Government,” not a company, as barred from censuring you, Apple can refuse to publish whatever they want. Likewise, GigaOM, and any other corporation I freelance for, can refuse to run any piece for any reason.

Congress — or in this case, a few senators — insisting Apple pull the app, to my non-Constitional-lawyer’s eyes, straddles the line of the First Amendment. Their actions infringe on Apple’s Right of Free Speech as an American publisher. It’s a blurry line, here. Four Democratic senators do not a congress make, nor has any law or formal action passed either the Senate or the House. The Senators are working around this issue by asking nicely.

What Should Apple Do?

Frankly, I’m a little surprised Apple even published the apps. I don’t think they should have in the first place. If they do pull the apps, I’m not going to mourn their loss at all. But I do believe that decision to publish should be Apple’s decision to make; not that of Congress or a group of senators.


Andy Abramson

At one point in time, the San Diego Sheriff’s Department was required to publish the locations of DUI checkpoints in advance, and did so via a press release. Now the simply name the communities.

The implication is that only drunks will avoid the checkpoints, while in reality some of us who just would rather avoid the entire mess would like to know where they are. Am I naive that the drunks won’t use this too? No, but all the law enforcement folks need to do is pollute the database and put up a few false flags. To me, the issue is not about simply the drunk driving, but about the use of prior restraint by Apple or Congress.


I am glad that by the third reviewer we had an intelligent person speaking.

I am sorry to say, the reason your are wrong Mark is because you misrepresented the nature of the letter sent to Apple. These senators are not “insisting Apple pull the app”, they are asking. Insisting would come in the form of a law in which case we could have a conversation about the First Amendment. But since that is not what they are doing (and I am glad they are not) there is absolutely nothing to talk about here.

The fact that these people are also senators who can make laws has nothing to do with anything, even if it makes you uncomfortable. (By the way, if it does, you need to think about the issue more.)

Had they passed a law, we could have an intelligent conversation about this. Is their freedom of speech violates others’ constitutional rights and to what extent? I don’t know. I could probably argue both ways. I suspect the courts would say, Congress cannot pass this law, given that they recently protected harassment as freedom of speech (Snyder vs. Phelbs, a ruling I strongly disagree with). On the other hand, the harassment did not have the potential to cause death, a drunk driver does, so it might actually fall under a different consideration.

All in all, I strongly support the actions of the lawmakers. I am glad they did it in a way that asks and not forces and starts a public conversation about the topic. (I also have no doubt that with the exception of maybe Rand Paul, this this would have passed the Senate 99 to 1. Performance in the house would have been comparable.) As for Apple, if they don’t have a clause in their agreement that prohibits apps that directly and substantially to decrease public safety, they should. And they should act on this, pull the current version of the apps and ask the producers to change this functionality.


Why people want Apps like trapster out? Like seriously… Its so stupid and the senators don’t have nothing else to do, so they do this.


Your blog post is extremely weak. Could GigaOM have put together something more substantial before posting? After two paragraphs of clunky disclaimer all about the first-person singular, you then deliver the only thing your post has to offer: Basically, “this is a free speech issue.” You add ZERO additional insight or context to that insight.

You don’t support your argument in light that, as everyone knows, there are limits to the things that can be legally protected as free speech — speech as “conduct” that risks public safety… using speech to create violence… the famous “shouting fire in a theater…” etc. Take a look at

To be useful on this topic for readers, the shortest article on this subject would need to remind the user what the limits to free speech are and why the roadblock apps pass that test.

Your blog post seems to be roughly the equivalent of someone at a bar saying “did you hear that some congressmen were shouting at apple to take down those apps? Hello, free speech, people?”

ALso — Senators have every right to stand up and declare an opinion on what Apple should do, just as I have the right to yell that out. You imply that because they are senators, they are somehow supposed to tone down their rhetoric because their opinions are somehow confused with actual law. I have a right to yell “apple, you must take those stupid apps down” and so do senators. It is only a LAW passed by them that could be seen as
transgressing on free speech.

I simply think your article is hastily thrown together and doesn’t provide much of a service other than “hey, remember the relevance of free speech in this, guys.”

Cold Water

Congress doesn’t “straddle” the line of the First Amendment, it crosses right over. You have a free speech right to blow the cops’ cover, whether you shout it verbally or not.

Rest assured, this app would be welcome on Android. As a non-driving straight ally, I may not car for that app or the “gay cure” Apple pulled the other day, but both have a right to exist, even if I detest the contents.


While my opinion on the apps mirrors the author’s, I don’t see the same clear-cut handling of the Bill of Rights. Times change, and so do the way we as a society operate.

The first amendment is already restricted by libel, slander, and defamation. Several other rights have legal limits added relatively recently – gun ownership limitations, for one. Then there’s the issue at hand, the 4th amendment. It’s apparently okay to limit the 4th amendment with regard to searching innocent drivers at a DUI checkpoint without probable cause.

Perhaps rather than discussing the proposed solution to the solution to the problem (a ban on roadblock apps identifying illegal search and seizure points), we should focus on the original issue, the questionable legality of DUI checkpoints – which the supreme court has given their blessing on…

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