Trumpets Ryan Chittum in the Columbia Journalism Review, “Yes, this is that serious. [The news media] needs to wrest back control of its speech from Apple Inc.  It’s easy to do it now while the press has leverage over Apple.  If the iPad becomes a significant driver of media revenue, and Apple decides to crack down, it will be too late (yes, the iPad has a Web browser, but the monetary leverage it could gain with apps is what’s concerning).”

Here’s an interesting dilemma for a potentially dominant technology or communications platform: Early Twentieth Century Supreme Court cases found a “public” (and therefore “government” and therefore subject to regulation) role of company towns and their attempts to enforce “private” laws through company-supported police powers.

What happens if Apple’s shiny new iPad gizmo becomes the de facto town square?  Or put more succinctly: What happens when newspapers, magazines and speech generally – presumably limitless and unfettered in the age of the internet – become practically available only on a receiving device available only (or largely) through Apple?

I suspect that antitrust law would be invoked and could sort this out, but that usually happens way down the pike and well after the market – and its implications and winners and losers – has fairly settled out.

But if the case involving Apple’s rejection of cartoonist Mark Fiore’s iPhone app – at least, its rejection before he won the Pulitzer Prize last week – demonstrates anything, it may be nothing new at all.  After all, Apple never pretended to be anything but discriminatory in its editorial control of its “App Store”.  Apple’s same license language quoted by Chittum in the CJR (“Applications may be rejected if they contain content or materials of any kind … that in Apple’s reasonable judgement may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory”) is no more or less restrictive or arbitrarily discriminatory than similar language found in Terms of Service found on the most established websites.  Here, then, from the Terms of Service for the New York Times website:

You acknowledge that any submissions you make to the Service …. may be edited, removed, modified, published, transmitted, and displayed by The New York Times Company and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you” (emphasis added).

And these restrictions don’t even bother qualifying themselves with the gratuitous “reasonable judgement” conceded by Apple.

Could this really be more about control of distribution on the Internet?  Or about … control of the Internet?  Apple’s success in transforming music distribution with its ubiquitous iPod (yes, iPod with an “o”) seemingly resulted from simply building a better design than.  While Apple’s limitations in transforming music distribution seemingly resulted solely from Apple’s inability to cut deals with all music labels.

Why should textual content distribution really be any different?  Last fall, Rupert Murdoch’s News Corporation threatened to limit the availability of its content through Google and other search.

Presumably, the New York Times or CJR could do the same through the iPad, Kindle, Sony Reader or Barnes & Noble Nook.

(Although the telling takeaway from the News Corp. experience may be Google’s proverbial shrug in response.)

In a New York Times story last week about the Pulitzer cartoon incident, cartoonist Fiore waxes philosophic: “Sure, mine [iPad app] might get approved, but what about someone who hasn’t won a Pulitzer and who is maybe making a better political app than mine?  Do you need some media frenzy to get an app approved that has political material?”  Well, not necessarily, and it does seem kind of silly that Steve Jobs would now personally reach out to Fiore.  But then again, why would Apple not want to grant a popular political cartoonist a presence on its popular reading tablet?  And why shouldn’t Apple be able to simply make a business decision that some sort of threshold public interest in the application need be attained to merits Apple’s attention?  The alternative presumably would require that Apple embrace all political speech and all potential demands for its desktop space.

We’ve seen this before in other areas of the law.  An example is the perpetually swinging pendulum of 1st Amendment Establishment Clause governance, where on the one hand government must permit and not inhibit all religious comers, or then affirmatively not allow anybody to do anything.

But back to the original question (or back to our question of original intent?): Why should Apple – a private company with a private commercial product – be required to conform with either view of an “open” forum of speech?