Date: Sun, 8 Dec 1996 15:45:35 -0500 Sender: Legal Scholarship Network From: Alan Lewine Subject: CYBERSPACE-LAW #52: Free Speech 13 To: Multiple recipients of list CYBERSPACE-LAW CYBERSPACE LAW FOR NON-LAWYERS Topic: Free Speech 13 (Number 13 of 27 on the topic FREE SPEECH) E-Mail Number: 52 Date Posted: 9 December 1996 * * * * * * * * * FREE SPEECH 13 of 27 ANNOYING / OFFENSIVE / HARASSING SPEECH, A DISSENT CONTINUED PART 4 OF 4 Now the short answer to much of this is that, as my colleagues put it, cyberspace *will* be able to punish people who annoy or harass - so long, that is, as the punishment is meted out by a private person, and not the government. But this distinction, useful in many contexts, strikes me as arbitrary here. If the government (and here I am thinking mainly of local governments) is just one of many suppliers of newsgroup space, and if it has a rule against harassing or offensive speech, so long as that rule is limited in its reach and neutral in its effect, I don't see why it would be terrible to permit it. There is a market for free speech places, and these places offer different combinations of protections and benefits. It might well be that civility norms are especially necessary to get speech in cyberspace going - or more accurately, to keep a diversity of people in it - and it doesn't strike me as terrible if government, to achieve a useful diversity of views, could enforce these civility norms just as others might. This is not to say that it should, and certainly not to say that it should everywhere. But if it did so on a relatively local basis - for particular groups, for particular topics - this might advance a diversity of views, rather than allowing the IBEX's of the world to silence them. A similar question lurks in the background of intentional infliction of emotional distress claims. Here again, the Supreme Court has reformed much of traditional state tort law, to give newspapers and publishers the freedom to speak without fear of perpetual litigation - so long, that is, as the speech at issue is of public concern, or so long as the person being spoken of is a public figure, and so long as they did not utter or publish a knowing falsehood (see an earlier post at http://www.ssrn.com/cyberlaw/libe03.html). If the speech is not of public concern, or if the person is not a public figure, then the Court has not interfered in the state's power to protect individuals against the harm that speech creates. It has neither interfered with traditional libel actions, nor with traditional actions for the intentional infliction of emotional distress. Unlike my colleagues, I don't see this line between public and non-public concern, as inherently unstable, and I believe much speech in the cyberspace context will be considered private, rather than public concern. If states wanted to pass "tame zone" laws, where people, in certain newsgroups, would be protected against the intentional infliction of emotional distress claims, I don't see the compelling reason why the Court should interfere. So long as there are plenty of other spaces, allowing the state to zone a emotional distress free zone in cyberspace doesn't strike me as a terrible cost - especially if the alternative is that these very same people would, without these laws, simply not enter cyberspace in the first place. Underlying both of my objections is an idea that might by summarized like this: Much of free speech law has been driven by the fear of government as censor, and by the concern that the government's power, relative to the speaker, is so great. But the very nature of cyberspace changes this. In my view, not only is the government less of a censoring threat, but private entities (through their control of the code constituting cyberspace) are more of a threat. The first half of this change leads me to believe that local governments at least should be relatively free of first amendment rules within this narrow area of speech doctrine. The second half makes me wish private entities were not. But while I doubt the Court will respond to the second half, I do predict they will be more sensitive to the first. * * * * * * * * * * * * * * * * * * * * * * authors: Larry Lessig David Post Eugene Volokh * * * * * * * * * * * * * * * * * * * * * * Cyberspace-Law for Non-Lawyers is presented by the Cyberspace Law Institute (http://www.cli.org) and Social Science Electronic Publishing (http://www.ssrn.org). Please note that this is an announcement-only list and not a discussion list. Please, do not attempt to post comments to the list, as they will be ignored. We have, however, recently opened a discussion site at http://www.ssrn.com/cyberlaw/cyberspaceLawList.html. Just click on the word "Discussion" at the top of the page to enter and join or begin a discussion thread. --------------------------------------------------------------- We also now have an indexed archive of all the Cyberspace-Law for Non-Lawyers materials posted on the web at http://www.ssrn.com/cyberlaw. You can also use e-mail to retrieve all of the material posted to date on Cyberspace-Law For Non-Lawyers by sending e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the (optional) subject line: GET INDEX and in the body, type the message: GET CYBERSPACE-LAW.LOG9608 GET CYBERSPACE-LAW.LOG9609 GET CYBERSPACE-LAW.LOG9610 GET CYBERSPACE-LAW.LOG9611 GET CYBERSPACE-LAW.LOG9612 Type all five lines above to get all the materials posted to date delivered by e-mail. If you want only some of the materials, you can type into the body of your message the line ending in "LOG9608" to get the materials posted through August '96. Type the line ending in "LOG9609" to receive all the materials posted in September, etc. ------------------------------------------------------------ To subscribe to Cyberspace-Law on the web, go to SSRN's homepage at HTTP://WWW.SSRN.COM/CYBERLAW/CYBERSPACELAWLIST.HTML where you will find a simple form to fill out. ------------------------------ OR you can subscribe by e-mail by sending e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SUBSCRIBE and the body message in the first line: SUBSCRIBE CYBERSPACE-LAW FIRSTNAME LASTNAME replacing "FIRSTNAME" and "LASTNAME" with your first and last names (or such pseudonyms as you prefer). ------------------------------------------------------------ To signoff (unsubscribe to) Cyberspace-Law, send a message to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SIGNOFF and the body message in the first line: SIGNOFF CYBERSPACE-LAW (Do NOT include your name in an unsubscribe message.) ------------------------------- Thanks for your interest and for joining us in this seminar on Cyberspace-Law for Non-Lawyers. Yours virtually, Alan Lewine Cyberspace-Law Listmeister Alan_R_Lewine@SSRN.com