Taking a Byte Out of the First Amendment How Free Is Speech in Cyberspace? By Shari Steele ---------------------------------------------------------------------------- This article appeared in the Spring 1996 issue of Human Rights (Vol. 23, No.2), a publication of the American Bar Association's Section of Individual Rights and Responsibilities. Reproduced by permission. Copyright 1996, American Bar Association ---------------------------------------------------------------------------- The world that exists in the electrons of computerized communications, frequently referred to as cyberspace, is unique in many ways. Because of its ability to give voice to many people communicating with many others, it has the potential for being the first truly democratic communications tool. For unlike broadcast media, such as magazines and newspapers, cyberspace puts the "printing press" in the hands of the people. And unlike with the telephone system, a single person can share his or her message with millions of people with a simple series of keystrokes. Yet, while the potential for giving voice to the previously disenfranchised offers a glimpse at true democracy, there are many threats to the well-being of cyberspace. Laws that have been developed for other forms of communication are being stretched to new limits as they try to work in this different world. But there are some problems with applying currently existing laws to cyberspace. Unlike in the physical world, there is no physical location where communications take place, making it difficult to determine where violations of the law should be prosecuted. Individuals participating in communications online can mask their identities or their ages, making it sometimes hard to figure out who is speaking when illegal activities take place. It is also difficult to completely delete speech once it has been posted, making the potential for mass distribution of illegal materials quite real. These qualities of the net have been receiving a lot of negative press lately. Reports abound of children being exposed to harmful materials, such as sexually explicit graphics, hate speech, and bomb recipes. Copyright holders have brought lawsuits to enforce their ownership rights in writings that have been widely distributed online. And access providers are increasingly finding themselves defending lawsuits where they are being held responsible for the actions of their users. Governments in the United States and abroad have tried to create and enforce laws to limit the bounds of speech in cyberspace. This leads some people to question whether speech is "too free" in cyberspace. There have been numerous attempts to limit what can be said online and to assign liability for wrongful speech. Defining Cyberspace ------------------- Cyberspace is made up of millions of people who communicate with one another through computers. The term itself is elusive, since it is not so much a physical entity as a description of an intangible. But information stored on millions of computers worldwide, accessible to others through telephone lines and other communications channels, all make up what is known as cyberspace. More and more people are getting online everyday. Since the numbers grow exponentially, it's hard to get an accurate count that isn't obsolete by the time it is published. Protecting Children and the Communications Decency Act ------------------------------------------------------ Perhaps the greatest threat to free speech on the Internet comes under the mask of protecting children: protecting children from sexually explicit materials, protecting children from violence, and protecting children from abuse. While this theme might push some buttons for the many parents who recognize that their children are more computer literate than themselves and who fear their own ignorance, the wearers of the protectionism mask stirring things up are familiar censors from the real world. The Religious Right, unable to win censorship battles in the print world, has taken its war online. And the blood has been flowing. In January of this year, the United States Congress passed a massive telecommunications reform law--the first of its kind in more than 60 years. The legislation was long overdue and addresses important issues such as competition among telephone service providers and rate reform. But nestled in this important legislation are two sections that are devastating to free speech online. Both of these sections were written and supported by the Religious Right. The first section, originally introduced by retiring Senator Exon of Nebraska, is known as the Communications Decency Act (CDA). This section repeats several things that are already illegal both online and off, such as the possession and dissemination of child pornography and the dissemination of obscenity. The CDA goes a serious step further--it criminalizes indecency, which is constitutionally protected speech. The U.S. Supreme Court has held that indecency, which it has roughly defined as the "seven dirty words you can't say on television," cannot be prohibited completely but rather can be limited to times over the broadcast media (i.e., television and radio) when children are less likely to have exposure. This is because television and radio are considered highly intrusive, in that someone can accidentally see or hear offensive materials when simply flipping channels. The CDA takes the same restrictions developed for highly intrusive television and radio transmissions and applies them to cyberspace. But cyberspace is not highly intrusive; on the contrary, the Internet is search driven. No one accidentally is exposed to pornography--one must affirmatively search for obscenity in order to be exposed. Furthermore, information in cyberspace cannot be limited to certain times of the day, since online systems like the Internet are available whenever anyone chooses to access them. Still, the Communications Decency Act has made the dissemination of indecent materials wherever a child may be exposed to them a crime. The test devised by the U.S. Supreme Court for the broadcast media turns cyberspace into only that which is fit for children. Falling into this vast net of prohibited materials are Harlequin romance novels, discussions about breast cancer and AIDS, and the Bible. As if the CDA weren't bad enough, there is another section of the telecommunications reform legislation that is equally troubling for free speech online. A last minute insertion by Representative Henry Hyde of Illinois criminalizes "any written...notice of any kind giving information, directly or indirectly" about abortion over an "interactive computer service." In other words, mere discussion about abortion is now illegal online. It is outrageous to many in the civil liberties community that such blatant abrogations of the First Amendment are included in the telecommunications reform legislation. Yet the bill was signed into law by President Clinton on February 7, 1996. On that same day, the American Civil Liberties Union and the Electronic Frontier Foundation brought suit against the government, asking for a temporary restraining order and an injunction on the decency provisions until the Court finally decides the case. The U.S. Congress is not the only government that has tried to impose its own speech restrictions on cyberspace. Pressure by the German government caused Ohio-based CompuServe to limit access temporarily for all of its subscribers worldwide to 200 Internet discussion groups. CompuServe restored access when thousands of its American subscribers vowed to cancel the service if the groups were not made accessible. Amateur Action and Community Standards -------------------------------------- The Supreme Court has held that dissemination of obscenity is not constitutionally protected, although possession of obscenity is. A recent case decided in federal court in Tennessee shows how difficult the clouding of the line between possession and dissemination becomes when talking about cyberspace. Robert and Carleen Thomas operated an adults-only electronic bulletin board system in Milpitas, California, called Amateur Action (AABBS). Individuals were given access to AABBS after going through an initial age screening and paying a membership fee. An attempt by San Jose authorities to shut down the board in 1992 was unsuccessful when nothing that qualified as obscenity under the California statute was found on the bulletin board after it was seized. It is significant to note that what materials qualify as obscenity is defined by community standards. The U.S. Supreme Court included the community standards criteria in its three-prong obscenity test because it believed that the United States was too big and diverse for a single definition of obscenity. In July 1993, a Memphis, Tennessee, postal inspector responded to a local complaint and became a member of AABBS. He downloaded files and brought charges against the Thomases for disseminating obscenity into Memphis. The Thomases were convicted, and an appellate court recently upheld those convictions. This decision is particularly troubling for online communications. Tennessee is but a single locality that can access the international telecommunications network generally and the Amateur Action Bulletin Board System specifically. Robert and Carleen Thomas had no physical contacts with the State of Tennessee; they had not advertised in any medium directed primarily at Tennessee; they had not physically visited Tennessee; nor had they any assets or other contacts there. The law enforcement official in Tennessee, not the Thomases, took the actions required to gain access to the materials, and it was his action, not the Thomases, that caused the materials to be "transported" into Tennessee (i.e., copied to his local hard disk). The Thomases may indeed have been entirely unaware that they had somehow entered the Tennessee market and had subjected themselves to the standards applicable in that community. Application of geographically based community standards to transmissions over the global network, which, based on this case, would allow conviction on the basis of any access to a bulletin board system or Internet site by a member of any community with standards that would disapprove of the materials in question, will have the perverse effect of prohibiting, worldwide, anything disapproved in any single location--precisely the kind of uniform national (or global) standard that the community standards test was designed to avoid. The Simon Wiesenthal Center and Hate Speech ------------------------------------------- The Simon Wiesenthal Center is well-known to human rights activists as a leading defender of human rights. Founded in 1977 by Holocaust survivor and Nazi hunter Simon Wiesenthal, the center boasts 400,000 members worldwide and carries on the continuing fight against bigotry and anti-semitism. However, some actions recently undertaken by the center are also misguided attempts at cyberspace censorship that run afoul of the First Amendment. The Simon Wiesenthal Center, like thousands of other organizations and individuals, has a site on the World Wide Web. The Web is a graphically driven interface for the Internet, permitting individuals access to thousands of computers by literally the click of a mouse button. Because virtually anyone can set up a Web site without restriction or limitation, there is a wide variety of quantity and quality of available Web sites. For example, General Motors offers an extremely sophisticated Web site where visitors can take a three-dimensional, virtual reality tour of one of the company's latest cars. On the other hand, a person might set up a Web site that contains incoherent ramblings of unsubstantiated conspiracy theories. These examples illustrate the beauty and the perceived danger of the World Wide Web. While organizations like the Simon Wiesenthal Center have their own Web sites, so do organizations like the American Nazi Party and the Ku Klux Klan. Since the Simon Wiesenthal Center would have little persuasive ability over these organizations directly to get them to refrain from carrying messages of hate, the center began a campaign of pressuring all service providers to refrain from carrying those Web sites. The effect of this campaign would be to make these sites inaccessible to any users who gain access to cyberspace through these providers. While the speech contained on these sites is often vile and insulting, it is precisely the type of speech that requires protection under our First Amendment. After all, no one tries to censor uncontroversial speech. The U.S. Supreme Court has held that hate speech, absent a threat to turn into immediate and predictable violence, is protected by the First Amendment and cannot be outlawed. The best remedy for hate speech is more speech. And the World Wide Web, which can be expanded infinitely, offers anyone who wishes to set up opposing viewpoints the opportunity to do so. The Church of Scientology and System Operator Liability ------------------------------------------------------- One of the key discussion fora on the Internet is a series of open-ended message areas known as Usenet newsgroups. Newsgroups are topic specific, and there are currently over 60,000 different newsgroups available on Usenet. Topics are extremely diverse, from job listings to discussions of the advanced mathematics known as cryptography to homeopathic remedies. Anyone can post to a newsgroup, and all messages that are posted are available for all other newsgroup readers to see. Usenet newsgroups are big, open discussion areas. The newsgroup alt.religion.scientology is one of the numerous newsgroups available in the alt.religion hierarchy. The Scientology newsgroup was founded by former members of the organization and is rife with animated discussion and criticism of the Church of Scientology's teachings. It is also the forum of unauthorized postings of secret Scientology documents--documents to which the Church of Scientology claims it holds valid copyrights. This illustrates the difficulty of enforcement in cyberspace. Newsgroups, once begun, attain a life of their own and are usually unmoderated and unrestricted. Individuals can post anything to a newsgroup, and no one person or organization is responsible for the removal of materials that may be inappropriately posted. This matter is often complicated by the fact that there are ways for individuals to post messages anonymously. So organizations like the Church of Scientology, which seek to enforce their copyrights, are limited in the kinds of measures they can take to thwart the dissemination of the materials. In December of 1994, an ex-minister of the Church of Scientology named Dennis Erlich posted messages which the church claimed were copyrighted. Erlich, who considers the Internet to be his new pulpit and his mission to inform anyone who will listen about the evils of Scientology, disagreed. Erlich claimed that his postings fell under the fair use exceptions of the copyright law, since he added his own comment and criticism to the documents. The Church of Scientology has sued Erlich in federal court in northern California. The judge is still determining whether Erlich's postings fall within fair use. Even more troubling than the Church of Scientology's decision to sue Erlich, however, was its decision to add Erlich's Internet service provider and local bulletin board access provider to the suit. In order to post messages, Erlich dialed in to a local bulletin board system run by Tom Klemesrud. Klemesrud, in turn, received a Usenet newsfeed from a large Internet provider, Netcom. The Church of Scientology claimed that since Klemesrud and Netcom did nothing to stop Erlich from posting his messages and did not attempt to remove Erlich's messages after they were posted, they were also in violation of the copyright laws. Netcom and Klemesrud, however, claim that service providers do not have an affirmative duty to monitor the content of messages posted by their users. Not only are they unequipped to read the millions of messages that are posted every day, but even if they did read messages like Erlich's, they would have no way of knowing whether Erlich's was a fair use or not. If service providers are going to be held liable for the content of user postings, we are going to see an extreme limitation on the types of speech available online. In order to avoid their own liability, service providers will engage in censorship, erring on the side of not permitting any speech that is remotely controversial. I can silence anyone with whom I disagree by simply threatening to bring suit against the service provider. Just as we don't want the telephone company listening in on our telephone conversations, we should be very careful about setting up a system for online communications where we require service providers to monitor messages. While the Erlich/Klemesrud/Netcom case is still to be decided, preliminary holdings by the judge have indicated that the service providers will only be held liable if they actually knew that there were copyright violations being posted through their systems. In the meantime, the Church of Scientology has brought cases against two other Internet users and their providers. Conclusion ---------- There are many who have said that enforcement is impossible over the Internet, so these threats to free speech are inconsequential. But any erosion of our basic civil liberties is important, and the mere passage of these laws or threats of lawsuits will have a chilling effect on electronic communications. It is important that all of us join the fight now, before our basic rights to our communications are eroded even before many of us have ever logged on. ======================================================================= Shari Steele is a staff attorney for the Electronic Frontier Foundation, headquartered in San Francisco. =======================================================================