In 1880, the British High Court held that the telephone was a telegraph under British law. The judgment in The Attorney-General v. The Edison Telephone Company of London:
Held, that Edison’s telephone was a ‘telegraph’ within the meaning of the Telegraph Acts , 1863 and 1869, although the telephone was not invented or contemplated in 1869.
Held, also that a conversation through the telephone was a “message,” or at all events a “communication transmitted by a telegraph,” and therefore a “telegram” within the meaning of those Acts; (LR 6 QB D244)
These holdings seem ridiculous now, when only 28 telegraph lines appear in Verizon’s 2008 regulatory account of its interstate communications demand. But if you read the Court’s decision, you will find it reasonable and well-argued.
Attorney-General v. Edison turned on statutory interpretation. The key statutory text was the Telegraph Act of 1869, s. 4:
The Postmaster-General shall have the exclusive privilege of transmitting messages or other communications transmitted, or intended for transmission, by any wire or wires used for the purpose of telegraphic communication, with any casing, coating, tube, or pipe inclosing the same, and any apparatus connected therewith for the purpose of telegraphic communication, or by any apparatus (other than such wire) for transmitting messages or other communications by means of electric signals.
The Court read this statute to grant the Postmaster-General a monopoly on any apparatus for communications by means of electric signals. It judged the telephone to be such an apparatus. Given the rudimentary development of constitutional interpretation of that time, reaching any other judgment would have been quite difficult.
The Telegraph Act of 1869 foreclosed a broad realm of future innovations without any good reason. Given that the telephone wasn’t contemplated in 1869, no specific characteristics of the telephone could have justified granting the Postmaster-General an exclusive privilege to it. Freedom of the press and freedom of association are deeply rooted freedoms in Britain. Not interpreting the Telegraph Act of 1869 with respect to the electrical technology of that time means that it potentially threatened the future practice of press and associational freedom. Policy makers might take such communicative freedoms for granted while writing statutes that undermine them, or while literally proposing their abolition. Courts can usefully insist that a new law not project constraints on wholly unknown communications possibilities without the law explicitly accounting for established communicative freedoms.