for copyright information.
Save Free Speech in Cyberspace
By Nicholas Johnson
Wired, Issue 3.06, June 1995
AOL and Prodigy censor their members' speech. We may think this is an exception to Net culture and the general online way of life. But we should think again. Some prominent members in Congress want to censor all of cyberspace. The law of electronic free speech is evolving. We can still help shape it, but not for long.
The story begins with understanding the difference between matters of "grace" and matters of "right."
A newspaper owner may, as a matter of grace, print your letter to the editor. The owner or host of a TV or radio show may, as a matter of grace, put you on the air, where you can freely express your opinion. It happens all the time. So, what's the problem?
Suppose he or she doesn't like what you want to write or say. Maybe he or she fears the loss of advertising dollars, objections from political pals or customers - or maybe he or she just doesn't like "your kind."
What are your legal rights to present your point of view to the audience over the owner's objection? The answer, with rare exception, is none.
The Florida legislature passed a law giving candidates attacked by newspapers the right to reply (like the Federal Communications Commission's "personal attack" rule for broadcasters). The US Supreme Court said it was an unconstitutional violation of the paper's First Amendment rights.
Apparently, the paper's right to speak includes the right to keep others from speaking - to censor. You may buy space in the paper as a matter of grace, but the laws aren't set up to allow you to buy space as a matter of right.
Businessmen opposed to the Vietnam war tried to buy time for anti-war spots on a radio station. They were turned down. Again, the Supreme Court said the station, like the paper, had a First Amendment right to refuse to air - that is, to censor - commercials it didn't like.
Cable operators have successfully made similar arguments. A cable company can choose, and censor, its channels. And you have no right to show your commercials on the channels that are carried by cable companies.
Needless to say, journalists don't have complete freedom to write whatever they want in the publications they work for because their publishers have the right to publish only what they choose.
Owners are not only free to censor copy, but often to hire and fire employees on a whim. In short, the Supreme Court allows virtually every mass medium to censor what it publishes. Naturally, Internet providers want no less.
Ironically, one of the legal theories behind the US$200 million defamation suit filed against Prodigy by the Stratton Oakmont securities firm last year is that Prodigy is responsible for its customers' speech because it censors that speech. Censorship has its price.
Protectors of public morality needn't fear. Digital torts and crimes - defamation, pornography, copyright violations, theft, stalking - are usually just as illegal as their analog predecessors. Perpetrators can still be sued.
Let's take inventory. How many free-speech rights have we already lost? Why? And what can we do to hang on to the few that are left in cyberspace?
Our lack of rights comes about because those who own the conduit (newspaper or station) also own the content (stories or programming). They are "speakers." Current theory lets speakers censor.
Perhaps our best hope is to extend to the Internet the Supreme Court's clear protection of free speech in a public (park, street), or even private (company town, shopping center), forum.
Another possibility is the old phone-company model, called "common carrier." Like a monopoly railroad, the phone company offered no content, only conduit. By law, it had to give everyone a phone line, and it could not censor what was said on those lines.
Now phone companies want to own the information and the entertainment they carry. Will that give them the right to censor? Some courts already think so. And campaign contributions may win the argument in Congress.
We find ourselves arriving
a little late in the free-speech day, having already lost our rights to
speak through dominant newspapers, broadcast stations, and cable. But insisting
on the separation of content and conduit as the Internet becomes privatized
may be our best hope for preserving the right of individuals to speak out.
It's the only free-speech forum left for those of us without a spare $200
million to buy our own newspaper or TV station.
Let your senators and Congress members know that, no matter what happens to the Internet, Congress needs to ensure that cyberspace will remain the free-speech forum it is today so that democracy will continue. Those providing the conduit should be forbidden to censor the content.
Otherwise, 260 million of us may soon find that our only legal right to share controversial thoughts has been limited to snail mail.
Nicholas Johnson . . . , one-time maverick FCC commissioner, is a public lecturer, writer, and visiting professor at the University of Iowa College of Law in Iowa City.