CHAPTER THREE Free Speech and Content Controls in Cyberspace The Internet has clearly expanded the potential for individuals to exercise their First Amendment right to freedom of expression. The Net’s technol- ogy bestows on its users a vast expressive power. They can, for instance, disseminate their own blogs, create a home page on Facebook, or even initi- ate their own Twitter service. According to Michael Godwin, the Net “puts the full power of ‘freedom of the press’ into each individual’s hands.”1 Or as the Supreme Court eloquently wrote in its Reno v. ACLU (1997) decision, the Internet enables an ordinary citizen to become “a pamphleteer . a town crier with a voice that resonates farther than it could from any soapbox.”2 But some forms of expression, like pornography or venomous hate speech, are offensive. They provoke a great sense of unease along with calls for limited content controls. Many resist this notion, however, insisting that the state should not interfere with unfettered access to online content. As a result, the issue of free speech and content controls in cyberspace has emerged as arguably the most contentious moral problem of the nascent Information Age. Human rights such as free speech have taken a place of special prominence in the past century. In some respects these basic rights now collide with the state’s inclination to rein in this revolutionary power enjoyed by Internet users. Whereas the United States has sought to suppress online pornography, the target of some European countries such as France and Germany has been mean-spirited hate speech. In addition, speech is at the root of most other major ethical and public policy problems in cyberspace, including privacy, intellectual property, and security. These three issues are discussed in Chapters 4, 5, and 6, where the free speech theme continues to have considerable saliency, but it is instruc- tive at this point to consider how these issues are interconnected. 63 64 Chapter Three: Free Speech and Content Controls in Cyberspace Restrictions on the free flow of information to protect privacy (such as the mandatory opt-in requirement in Europe) constrain the communication of information and therefore could be interpreted as a commercial speech issue. This assumes, of course, that the collection and sharing of personally identifiable data is a form of “speech.” Although it is true that “there is rea- son to question whether the traditional modes of First Amendment review should apply . to regulation of commercial processing of information,” the issue is surely open for debate.3 Intellectual property rights can also be construed as restrictions on free speech. If someone has property rights to a trademark, others cannot use that form of expression freely and openly. And finally, one way in which users seek to secure their data is encryption, but encryption in the wrong hands could be a threat to national security, and hence many argue that encryption needs to be subject to government control. But isn’t encryption source code itself a form of speech that deserves constitutional protection? Thus, many of the intractable and publicized dif- ficulties in cyberspace can be reduced to the following question: What is the appropriate scope of free expression for organizations and individuals? Many who pioneered Internet technology have consistently asserted that the right to free expression in cyberspace should have as broad a scope as possible. They argue for unrestricted access to all forms of speech in cyberspace. For many years, there was also considerable reluctance on the part of the government to restrict or filter any form of information on the network for fear of stifling an atmosphere that thrives on the free and open exchange of ideas. But the expanded use of the Internet, especially among more vulnerable segments of the population such as young children, has forced some public policy makers to rethink this laissez-faire approach. In the United States, the result has been several frantic and futile attempts to control Internet content through poorly crafted legislation. Other countries have also entered the fray, seeking to impose their own restrictions. In this chapter, we focus primarily on those problematic forms of free expression, well known to anyone who has surfed the Web, that trigger the ire of regulators. They include pornography, hate speech, virtual threats, and even the nuisance speech known as spam (unsolicited commercial email). In the context of this discussion, we consider whether the libertar- ian ethic favoring broad free speech rights still has validity despite the proliferation of offensive content. A central theme is the social implications that arise when local sovereigns seek to regulate content based on ideology. Speech and Internet Architecture Content controls and censorship are alien to the original design of the Internet. Thanks to the Transmission Control Protocol/Internet Protocol (TCP/IP) protocol the Internet has been architected to transmit packaged Pornography in Cyberspace 65 bits of information indiscriminately from one location to another. Routers and intermediate servers that support this transmission pay no attention to content—they simply forward along a compressed packet of anonymous 1s and 0s. Furthermore, these bits are being transported to an IP address that could be anywhere in the world. Territorial borders and boundaries are irrelevant. The Internet is oblivious to geography as it mechanically trans- mits digital data to the destination denoted by the numeric IP address. Hence the Internet’s ability to “cross borders, break down barriers, and destroy distance” is often singled out as one of its most remarkable features.4 It becomes clear that this distinctive architecture of the Net is wholly consistent with an expansive and robust conception of free speech rights. This network has been designed so that anyone can send any form of digital content to any location throughout the world without interference. The Net’s code supports and protects a highly libertarian ethos that gives primacy to the individual speaker. It is also significant, of course, that this architectural design has its roots in the United States where the Net was invented and nurtured for many years. It is not surprising that Americans committed to broad free speech ideals would construct a network that embodies this philosophy. As Lessig remarks, “We have exported to the world, through the architecture of the Internet, a First Amendment in code more extreme than our own First Amendment in law” (emphasis in original).5 But what code “giveth,” code can take away. Code is not fixed and immuta- ble, and neither is the nature of cyberspace. Filters, firewalls, and geolocation software, which can differentiate between users of different countries, are beginning to complicate the Net’s original, simple architecture. As the Net’s architecture changes it no longer appears to be beyond the control of local sovereigns and regulatory forces. Code itself can breathe new life into territorial sovereignty. Perhaps all of this has the force of inevitability, but is it a good idea? Should the Net, too, have borders? As we ponder this question, let us turn to how the United States has sought to control content by outlaw- ing bits of data that are pornographic. Pornography in Cyberspace Before we discuss the U.S. Congress’s recent efforts to regulate speech on the Net, we should be clear about legal standards pertaining to porno- graphic and obscene speech. Obscene speech is completely unprotected by the First Amendment and is banned for everyone. In Miller v. California (1973) the Supreme Court established a three part test to determine whether or not speech falls in the category of obscenity. To meet this test, speech had to satisfy the following conditions: (1) it depicts sexual (or excretory) 66 Chapter Three: Free Speech and Content Controls in Cyberspace acts explicitly prohibited by state law; (2) it appeals to prurient interests as judged by a reasonable person using community standards; and (3) it has no serious literary, artistic, social, political, or scientific value. Child pornography that depicts children engaged in sexual activity is also illegal under all circumstances. Pornography, that is, sexually explicit speech excluding obscene speech and child pornography, can be regulated and banned, but only for minors. The relevant legal case is Ginsberg v. New York, which upheld New York’s law banning the sale of speech “harmful to minors” to anyone under the age of seventeen. The law in dispute in the Ginsberg case defined “harmful to minors” as follows: “that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado- masochistic abuse, when it: (1) predominantly appeals to the prurient, shameful, or morbid interests of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors.”6 Although state legislatures have applied this case differently to their statutes prohibiting the sale of material harmful to minors, these criteria can serve as a general guide to what we classify as Ginsberg speech, which is considered off limits to children under the age of seventeen. Public Policy Overview The Communications Decency Act The ubiquity of obscene and pornographic speech on the Internet is a chal l enge for lawmakers. As the quantity of communications grows in the realm of cyberspace there is a much greater likelihood that people will become exposed to forms of speech or images that are offensive and potentially harmful. By some estimates, the Internet has over 100,000 sites offering illegal child pornography, while monthly pornography downloads amount to 1.5 billion.7 Hence the understandable temptation of govern- ments to regulate and control free expression on the Internet in order to contain the negative effects of unfettered free speech on this medium.