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The First Amendment: Sex, Laws, and Cyberspace

A Michigan college student posts sadistic fantasy about a classmate to an Internet newsgroup and is charged with the threat to injure. A postal inspector in Memphis, Tennessee downloads a pornographic image off the Internet and the California couple who posted it is arrested for violating Tennessee’s obscenity laws. A programmer’s encryption software is duplicated by someone else and sent overseas via the Internet; the programmer is charged with illegal export of munitions. The three defendants in these cases felt that the First Amendment protected them, but it was not the case.

Sex, Laws, and Cyberspace is precise in its opinion on the First Amendment and defends every case presented within the book. Sex, Laws, and Cyberspace addresses the legal issues and ethical debates surrounding the worldwide growth of the Internet. The same qualities that make these networks invaluable–low cost worldwide reach, lack of censorship, interactivity, virtual anonymity, and the ability to carry huge amounts of data, text, images, and sounds–also makes them dangerous. The pressure on the government to regulate the Internet is tremendous, and the implications of their judicial and egislative decisions will be far-reaching.

Sex, Laws, and Cyberspace examines these battles and includes interviews with key players in both pro- and anti- regulation camps. The authors offer a spirited defense of the freedoms now under fire, and suggest ways to monitor the net without stifling it. As an example the reader must look at is Jake Baker who liked to write savage, pornographic snuff stories and post them to the Internet. Always written in the first person and tinged with an eerie realism, his tales were simple, explicit, and gruesome. “She’s shaking with terror as Jerry and I circle her.

She says in a little, terrified voice, ‘Why are you doing this… I’ve never hurt you… p-please stop! ‘ I pause in front of her. Jerry smiles at her terror. He laughs at her pitful pleas. I say, ‘Shut the _uckup, stupid whore! ‘ and hit the side of her head, hard. She collapses on the ground, crying, curling up into a little ball. Alright. Let’s have some fun” (64)! They proceed to tie the girl’s hair to a ceiling fan and tear into her as she dangles and spins. Baker’s hero, Jerry, then rapes and mutilates her. For the denouement, they pour gasoline on her and say good-bye with a lit match. Baker, a twenty year old sophomore at Michigan college posted this piece to Usenet under his own name.

The real world Baker was a quiet kid who played with computers and drew little notice; but on the net he excited, offended, and garnered attention. The last contribution Baker made was January 9, 1995, and again included a simple plot, sadistic torture, and murder. The difference, however, was that he used a real girl’s name who sat in his Japanese class the previous fall semester and on whom he had a secret crush. Ten days after the posting, the story came to the attention of the University of Michigan. Baker was contacted by officers from the University of Michigan Department of Public Safety.

Although he was surprised by the contact, he readily admitted to writing the stories. Baker waived his Miranda rights, and let them search his room and E-mail account. There they found an unpublished story and a number of E-mail conversations with a fellow rape fantasizer, Arthur Gonda. When interviewed by the officers, Baker stated that he wrote to exorcise his demons, to relieve the tensions caused by a student loan he feared he would lose, and to impress certain others on the net. Without going into the details of this case, Baker was charged with threat to injure.

This was later dismissed because of his lawyer’s appeal that cited Whitney v. California. It stated, Fear of serious injury cannot alone justify suppression of free speech… To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practices. There must be reasonable ground to believe that the danger apprehended is imminent (81). The other reason Baker’s case was dismissed was that Judge Cohn looked at the Communications Decency Act (CDA). Under Senator Exon’s CDA, Baker would likely be guilty of indecency and subject to both heavy fines and imprisonment.

Some point out that The freedom of press belongs to those who have one (80). Half baked ideologies, dangerous ideas, and sordid fantasies can be posted, published, and circulated with virtually no restrictions on the Internet. The First Amendment allows this. The government’s case against Baker collapsed when real world standards were applied. Without the CDA or equivalent legislation creating different rules for cyberspace, Baker’s posting to Usenet was no ifferent than if he had distributed his stories as leaflets on street corners.

Judge Cohn took a swipe at the CDA, which had just cleared the Senate by saying The Senate’s recent passage of a telecommunications bill including Senator Exon’s measure criminalizing the distribution of filthy’ material over computer networks suggests that the First Amendment’s applicability to on-line communications has not been well considered (80). Judge Cohn decided that the CDA was not explicit or detailed enough for him to abide by it in his courtroom. The First Amendment is the main issue presented within this piece of work. Wallace and Mangan present their philosophy it through the entirety of the book.

They believe that the First Amendment has been interpreted to say that people will not make content based distinctions of speech; there should be no censorship; the cure for bad speech is to overwhelm it with good speech, but not to silence it. They argue that the material being ruled or legislated on would be First Amendment protected if disseminated in a book or magazine, then there is no rationale for treating it differently on the Internet. Using a computer does not, and should not, make anything illegal that is legal if done ithout a computer.

Wallace and Mangan are strong believers in the First Amendment, and believe that limiting what is on the Internet is a clear violation of the First Amendment. Wallace and Mangan did not just stop with the writing of this book. They were clear players in the ACLU v. Reno. The CDA was struck down on June 11, 1996, by a panel of three judges in Philadelphia. The judges determined that the CDA was unconstitutional, thereby keeping free speech alive on the Internet. Wallace was a major role player in the outcome of this case. He is well educated in computer law and assisted the American Civil Liberties Union as eeded.

This was not just a book written by Wallace and Mangan, but something that means a great deal to them. Johnathn Wallace is Vice President and General Counsel at a high-tech computer services company based in New York City. He is a graduate of Harvard Law School, he practiced computer law for ten years and has authored two books: Syslaw, the Sysops Legal Manual and Understanding Software Law. Mark Mangan works at the same high-tech company where he is a corporate writer. Both of these men are well versed in the area of computers and computer law, and it is vident in this book.

Wallace and Mangan do not just ponder the question of censorship, they offer a number of interesting solutions that avoid trampling all over guarantees of freedom of speech, press, and religion. The book has numerous stories, as well as fascinating details of earlier legislation struggles over technologies such as radio, television, and the telephone, which it applies to the controversies over the Internet. They have produced one of the more important books about cyberspace. It is well researched and can be easily understood by the common reader.

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