September 22, 1994

Volume Controls in Cyberspace? -- 
Hard First Amendment Questions in the Age of Electronic 
Networking

By: David R. Johnson

        Electronic speech, transmitted over the global networks, 
has reduced the significance of all physical barriers to 
communication. There is no need to travel to make a speech heard 
by millions. You don't even need a stamp to send a message around 
the world!  It's not surprising, therefore, that we are beginning 
to see clashes between those who favor the free flow of 
information and those who seek to impose limits on what can be 
said. The recent obscenity conviction in Memphis of the operators 
of a bulletin board physically located in California -- and legal
in California -- is just one example.

        Some call for enforcement of the First Amendment in 
cyberspace. Some point out that the First Amendment is a local 
U.S. ordinance -- not applicable, for example, to those sued in 
England or Australia under lower standards applicable to
defamation in those locales. But no one has yet come to grips 
with the hard question of how we will balance the community 
interests in imposing some limitations on speech against the 
desire to facilitate open communication
over the Net.

        In other words, if we did have a "First Amendment" in 
cyberspace, generally agreed upon as a global balancing tool for 
the rights of speech and the protection of other interests, what 
would it say? How would it read? It couldn't say "Sysops shall 
make no rule limiting freedom of speech" -- that just wouldn't be 
helpful.  And we certainly can't just apply the FCC rules 
applicable to old fashioned broadcasts -- these are justified by 
a bankrupt notion of scarcity and premised on centralized 
control.

        In the "real" world of speech carried on physical objects 
(letters, magazines, etc.) and communicated in local settings 
(before assembled audiences), we have acknowledged lots and lots 
of limitations. Obscene materials are not protected. Defamation 
with malice can give rise to liability. Copyright infringement is
a criminal act. And the courts have upheld all kinds of 
limitations on the time, place and manner of speech acts.  You 
are not allowed to hold a loud parade at two in the morning in a 
residential area.

        Cyberspace will have to have similar exceptions to its 
First Amendment principles -- but they will have to differ 
appropriately in light of the differences in the territory.  
Obscenity will have to be defined by the community standards of
particular online forums, with labelling and contracts governing 
the decisions by adults to subject themselves (and their 
children) to any particular standard.  Defamation law might be 
different in an online setting in which the right of reply is
so much more readily available. Copyright law will surely change 
substantially, since the ease of non-commercial copying on the 
Net will put enormous pressure on the fair use doctrine.

        In addition, and perhaps most importantly, the Net will 
have to develop its own version of "time place and manner" 
regulation.  The screens that lead to cyberspace are in our 
homes.  Despite the theoretical feasibility of "bozo filters," we 
need some protection against an obnoxious tide of electronic junk 
mail.

	Receiving and weeding through e-mail takes a lot of time and 
money. There is an analog in cyberspace of unduly LOUD 
communication -- sending a broadcast e-mail to lots of unwilling 
recipients, or posting extensive off-topic comments in an online
discussion group.  In response to obnoxious advertising posted by 
two lawyers who "spammed" the net, there is now a body of 
"judges" who claim the power to review and cancel inappropriate 
postings to usenet newsgroups. (A vigilante "cancelbot" preceded 
this more orderly and representative forum.) I can report that 
LEXIS COUNSEL CONNECT, the online meeting place for lawyers, has 
been forced to limit members' right to send broadcast e-mail -- 
in response to complaints about the manner in which this speech 
is conducted and its unreasonable tendency to disturb our peace 
and fill our mailboxes.

        The hard-core First Amendment advocates will object to 
any such regulation, arguing that the marketplace of ideas and 
the culture of online netiquette (and an occasional flame war) 
will keep obnoxious posters in line. I favor the free flow of 
ideas. And I realize the spirit of the First Amendment is to 
protect unpopular views. But this new form of regulation of time, 
place and manner of online speech has nothing to do with the 
content of the speech. (No one cares that the spamming lawyers 
were advertising.)  Moreover, the answer to these First Amendment 
objections is not limited to the ultimate right of a majority to 
protect itself against unwanted intrusions. The ultimate rationale
for creating rules against unduly loud electronic speech is that
we need to be able to hear ourselves think, collectively.

        Kevin Kelly's brilliant new book, "Out of Control," talks 
extensively about the emergence of complex adaptive systems and 
suggests, as others have, that the global Net is becoming a sort 
of "hive mind." If we look at complex structures of this sort, we 
see that most involve a large number of connections -- allowing
constant communication between individual elements. But most do 
NOT permit one particular individual to speak to the group as a 
whole against their will. There is no "leader fish" in a school. 
Neurons trade chemical signals primarily with neighbors. Ants and 
bees talk relatively quietly among themselves. Undue prominence 
of any one unwelcome signal or source or information is a form of
disease or madness or social and political disaster -- a form of 
hostage-taking.

        I think it is fundamental to our ideas about government 
that the state should not have a point of view of its own 
distinct from the general desire to increase the freedom and 
ability of individuals to express themselves and form 
communities.

	If one voice can overpower, even though purporting to speak on 
behalf of or in search of the global good, then the basic 
processes of filtering and evaluation that make a group consensus 
so wise can be destroyed.

        This provides us with one central principle for 
developing the limitations on the right to speak in cyberspace.  
We need those limitations to facilitate each
individual's voluntary decisions about what to say and hear and 
read and from whom. Speech acts can no more be absolutely 
protected in cyberspace than in the "real" world -- indeed, the 
greater power to speak may well increase the need for time, place 
and manner restrictions. But on the other hand, the apparently 
limitless extent of this cyberspace holds out hope that everyone 
will be able to find a place to say whatever they want to say -- 
and that the connectedness of it all will help the best ideas to 
win at the end of the day.