The Internet offers a much greater potential for interactive communication between information senders and receivers than the more traditional methods of communication such as newspaper, radio and television. Freedom of speech ascertained by the constitution is not an absolute right. Depending on the medium through which information is delivered various degrees of the freedom to express one’s self is protected. Internet communication may be analogous to either a specific existing communication medium or even several.
Current free speech protection begins to dissipate as it is applied to the uncertain confines of the newly developed Cyberspace. The traditionalist approach to free speech protection is centered on core values and yields results that are basically neutral so that content allowed through one communication medium is permissible in all media. Freedom of speech and of the press is a basic tenant of United States constitutional law. Perhaps concern for the English use of prior restraint (licensing of press) and seditious libel was the reason for including the first amendment in our bill of rights.
When the first amendment became law the printed page was the most widely used non-verbal medium of speech. Speech, as we understand it, involves more than verbal communication. Speecht includes pictures, movies, radio, television and expressive conduct [Shelton v. Tucker, 364 US 479 (1960)]. As technology advanced and additional communication medium developed, speech was given various levels of first amendment protection depending on the medium through which the information was delivered. Cyberspace is a network of computer systems permitting literally millions of people to communicate with one another on an hourly basis.
Cyberspace may mirror other types of communication medium singularly or several at one time. Current free speech protection approaches break down when applied to Cyberspace since one may prohibit speech when delivered by one medium but permit identical speech delivered via a different medium. A core values approach protects identical speech regardless of the medium in which it is delivered. So it is a foundation for Cyberspace and promotes development of new technology. That, “Congress shall make no law… , or abridging the freedom of speech”, suggests an absolute right to speak.
Justice Black dissenting in Konigsberg felt that freedom of speech was absolute [Konigsberg v. State Bar of California, 366 US 36 (1961)]. Justice Harlan writing for the majority rejected an absolute right, noting that protected freedom of speech was less than an unlimited license to talk. When examining a restriction on speech the court will look for a compelling government interest to warrant the restraint on speech. Also the court will look to determine if the regulation accomplishes the governmental objective in the least restrictive way.
Some forms of speech are not protected by the first amendment. Fighting words, intended and likely to provoke a physical response breaching the peace may be prohibited [Chaplinsky v. New Hampshire, 315 US 568 (1942)]. Criminal statutes may punish speech advocating unlawful conduct. Under the Brandenburg test the state must prove that: 1) the speaker subjectively intended to incite unlawful actions, 2) that in their context the words spoken were likely to produce imminent lawless action, and 3) that the words used objectively encouraged incitement [Brandenburg v. Ohio, 395 US 444 (1969)].
Obscene speech/works are not given First amendment protection. Miller v California is the current test a court should apply in determining if speech is obscene [Miller v. California, 413 US 15 (1973)]. The test has three parts: 1) whether an average person applying contemporary community standards would find the work taken as a whole appeals to prurient interests, 2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law, and 3) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
The first two parts of the test apply based on standards of the local community so that what is obscene may vary with the locality. The third part is based on a reasonable person standard and is not based on local community standards. For a work to be found obscene all three portions of the test must be found. Indecent speech does receive first amendment protection. However in the context of broadcast radio and television courts have upheld FCC regulation of “adult speech”. In Sable v FCC the court invalidated a law prohibiting indecent Dial-a-Porn phone messages which were not obscene [Sable Communications v. FCC, 492 US 115 (1989)].
There the court found congress could regulate to protect minors by requiring use of credit cards, access codes and scrambling rules. Early cases did not give commercial speech (advertising) first amendment protection. In Pittsburgh Press the court held that the exchange of information in commercial speech was important as in other types of speech [Pittsburgh Press Co. v. Pittsburgh Commission, 413 US 376 (1973)]. Modern cases provide first amendment protection to commercial speech. Hate Speech, verbal abuse and violence directed at ethnic groups, homosexuals and religious groups has increased in recent years.
Some college campuses have adopted speech codes prohibiting racist, sexist and homophobic speech [American Civil Liberties Union, Briefing Paper Number 16 – Hate Speech on Campus]. Medium of Speech Regulated Speech has been regulated differently depending on the medium over which the communication has been made. The printed medium has been found to enjoy the broadest freedom of speech protection. When radio and television cases arose the courts upheld the right of FCC regulation based on the scarcity of broadcast channels and to provide for the needs of viewers and listeners rather than licensed broadcasters [FCC v. League of Women Voters, 468 US 364 (1984)].
For cable television some courts have held that government has less ability to regulate program content than for broadcast television [Cruz v. Ferre, 755 F. 2d 1415 (11th 1985)]. Different FCC regulations apply to the commercial use of phone lines [Sable Communications v. FCC, 492 US 115 (1989)]. Congress has applied many regulations to satellite broadcasts that were at one time only applied to broadcast television. Satellite does not suffer from limited channels as broadcast television does so courts may permit less regulation of satellite broadcasts than traditional television.
Finally it has been held that a person may possess obscene material in their own homes [Stanley v. Georgia, 394 US 557 (1969)], so while production or distribution of obscene material is not protected ownership is at some level. U. S. v Thomas, found California based system operators, who operated a bulletin board, guilty of violating Tennessee obscenity laws [US v. Thomas, Case No. 94-20019-G (WD Tn 1994)]. A Tennessee postal inspector joined Thomas’ system. He downloaded sexually oriented pictures, ordered a video tape and sent Thomas an unsolicited child-porn video.
A Memphis jury found the California couple guilty. Here protected speech/activity legal in California was illegal in Tennessee. An argument can be made that the community standard of Miller would allow a conservative community to force their standards on another state for conduct performed in the more liberal state. An example of how Cyberspace can increase discourse of expression and ideas involved hate speech messages on Prodigy. Some users denied Holocaust occurred and disparaged Jews. Other users were able to respond, disagree with and label as bigots the original group.
In reviewing the incident the Electronic Frontier Foundation (EFF) found that on balance both sides were able to express their viewpoints. [Electronic Frontier Foundation, Letter to Office of Policy Analysis and Development NTIA, US Department of Commerce, by Shari Steel, staff attorney, 4-26-93]. Due to the interactive nature of Cyberspace more people are able to express themselves. Unlike printed press where there are publishers and readers or television where there are broadcasters and viewers the Internet allows a far greater level of interaction.
In Cubby, Inc. v CompuServe, CompuServe was found not to be liable for distributing the materials of others [Cubby, Inc. v. Compuserve, Inc. , 776 F Supp 135 (SDNY 1991)]. Like a real world distributor of books it would not be reasonable to expect CompuServe to review all messages and files passing through their system. The major criticism involving free speech and Cyberspace relate to the media specific nature of current regulations [Robert Corn-Revere, “New Technology and the First Amendment: Breaking The Cycle of Repression”, 17 Hastings].
Each time a new technology has developed new criteria is established. When a breakthrough in technology first emerges there is no solid framework that developers, users, government or courts can look to for guidance. As a result what may be protected in print media is prohibited from broadcast television. In Cyberspace a user or system operator can wear numerous hats. When acting as a publisher one is responsible for libel and defamation. If acting as a distributor of someone else’s product there will likely be no liability. [Cubby, Inc. v. Compuserve, Inc. 776 F Supp 135 (SDNY 1991)].
Others point out that Cyberspace is unlike other communication media and therefore should not be regulated at all or should have a different standard [Anne Wells Branscomb, “Anonymity, Autonomy, and Accountability: Challenges to First Amendment in Cyberspace,” 104 Yale Law Journal, 1639, 1995 ]. Current politics is attempting to draft legislation to either restrain or protect the Internet from the regulatory arm of the government. Robert Corn-Revere has described the inconsistent protection/ regulation through an example involving a regulator simultaneously viewing an identical sex scene on five televisions.
One of the televisions is receiving its signal from a broadcast tv station, another from a cable television feed, another from a VCR, a fourth via satellite and the fifth via fiber optic phone lines. The paradox is that identical expression/content on the five sets may be subject to five or more types of regulatory schemes and receive varying levels of free speech protection. The difference in regulation may be ascribed to the law reacting to new technologies in a manner to fit the level of regulation to the developing technology.
Revere describes three judicial approaches which may be used in determining what level of free speech is afforded, incremental approach, revisionist and traditionalism. The incremental approach reflects current reality where different standards are applied to different media even though the speech content may be identical. This approach provides full free speech protection only to the printed media. A disadvantage is the lack of a framework that can be applied to new technologies, like Cyberspace.
The revisionist approach is based on balancing private and public interest to maximize the good for all. Like the incremental approach, changes in technology outpace the regulators and a void develops whenever a new communication medium emerges. To fill the void regulators tend to attempt using regulations designed for other communication forms that may not work well. The traditional approach ignores the medium through which communication is transmitted and analyzes the content of the message to test if it warrants free speech protection.
Laurence Tribe has referred the constitution’s core values [Lawrence H. Tribe, “The Constitution in Cyberspace,” prepared remarks, Keynote address at the First Conference on Computers & Privacy, (1991)]. The core values would be universal beliefs and ideals that would not change with new technologies. Tribe put forth five principles that applied to Cyberspace issues. They would maintain the First Amendment’s vitality and ability to guarantee free speech. First the constitution limits what government may do but advances in technology do not expand what government may do.
Secondly private property is private and the government can not make private property public subject to the fifth amendment. The third principle is that government may not control the content of speech/information. Tribe submits that writing of computer viruses (information content which is speech) would be constitutionally protected. But the use of viruses to the harm of others can be prosecuted like yelling fire in a theater where no fire exists. The fourth principle is that right and wrong do not change with technology.
And the final principle is that Constitution’s meaning should not vary as technology changes. The Constitution’s principles must be interpreted in a dynamic way. One example provided was how the court in Olmstead held that wiretapping was not a search invading a person’s right to privacy in the same way a physical search of a house would be [Olmstead v. US, 389 US 351 (1967)]. In Katz, the Supreme Court repudiated the earlier decision finding that the fourth amendment protected people not places and that wiretapping was an invasion of a person’s privacy [Katz v. US, 389 US 351 (1967)].
The traditionalist or core value approach provides a stable framework for determining whether there is a compelling governmental interest sufficient to warrant a restriction on free speech and if the regulation is narrowly tailored. Regardless of the medium of speech identical content would receive the same level of protection. The traditionalist approach also provides a framework to apply to emerging technologies like Cyberspace and technologies unknown at present [Robert Corn-Revere, “New Technology and the First Amendment: Breaking the Cycle of Repression, 17 Hastings].
Existing free speech protection devices that regulate to a varying degree based on the medium of communication rather than the content transmitted do not provide a suitable framework to protect speech in Cyberspace. A core-value approach to speech protection provides equal protection to identical speech content regardless of the medium through which the information is transmitted. A core-value approach therefore provides a stable framework for addressing free speech issues in Cyberspace and technologies yet to develop.
In the words of the late Professor Meiklejohn, who has articulated a view of the first amendment which assumes its justification to be political self-government, has wisely pointed out that, “what is essential is not that everyone shall speak, but that everything worth saying shall be said”-that the point of ultimate interest is not the words of the speaker but the minds of the hearers [A. Meiklejohn, Political Freedom: The Constitutional Powers of the People 25-28]. Can everything worth saying be effectively said?
Constitutional opinions that are particularly solicitous of the interest of mass media-radio, television, and mass circulated newspaper-devote little thought to securing the difficulties of access to those media The overwhelming public use of the Internet has forced a major focus on the public’s access to a mass medium. The Internet’s purpose of creating an opportunity for expression has been as important as ensuring the right to express ideas without fear of governmental reprisal.