Internet creates 'freer' place for First Amendment
Jon Katz
First Amendment Center scholar
07.14.00
The reason free speech in cyberspace is so much freer than speech elsewhere isn't politics but architecture. Relative to non-virtual space, market and legal constraints on free speech online are still miniscule, especially given the volume and range of Net communications — mailing lists, Web pages, messaging systems, weblogs and chat rooms.
Relative anonymity, multiple points of access and other features of Internet protocol have made it so difficult to curb free speech in cyberspace that nobody really has, despite two efforts by Congress to pass blatantly unconstitutional Communications Decency Acts and the recent spate of copyright and patent lawsuits.
The architecture of the Internet, a number of scholars have written, is the real "First Amendment in cyberspace."
And ironically, it's a more vigorous kind of First Amendment that the one in the Constitution, since free, offensive, opinionated and other forms of speech are practiced so much more vigorously online than they are in the real world. Few newspapers, TV stations or educational institutions would tolerate the diversity of opinion, blasphemy, obscenity, sexuality and range of political views on display all over the Net every day, for better or worse.
This dichotomy has presented us with an unexpected but profound choice. When it comes to cyberspace, what kind of First Amendment do we want to have, keep or define? Do we need a new First Amendment or simple a re-commitment to the ideals and values of the one we already have?
As the Internet is becoming increasingly commercialized, do we want cyberspace to be brought more into line with the more tepid conventions regulating speech in politics, media and other open forums?
Do we want to protect the distinctly free nature of the Internet?
Or do we want to make the rest of society as free as the Internet is, and bring the ferocious, raucous, profoundly interactive and freewheeling nature of Internet conversations to our educational, civic and political institutions?
This is not an idle or abstract concern. Technology has become one of the driving forces in all of our lives. The Internet, said one computer visionary, is like fire. It will change everything. When it comes to free speech, either it will change us or we will change it. There really aren't any other choices.
The Internet came of age at a painful time for much of the American press. In its early days, the press was much like the Internet — loud, quarrelsome, free and individualistic. In recent years the press has become corporatized, much of it acquired by giant conglomerates much more interested in making money than in protecting or advancing the First Amendment.
Voices like Thomas Paine's or H.L. Mencken's are missing from the contemporary press, now considered too outspoken or idiosyncratic to tolerate opinions which are that "offensive" or "outspoken." Modern journalism is nothing if not tepid, managed in much the same way as cereal or car companies. The First Amendment was in part designed to protect unpopular and offensive speech, but few newspaper readers or TV-watchers get to see or hear much any more.
The Internet burst upon the media scene without much warming, giving real meaning to the idea of an information "explosion." As the Net literally exploded, the freedom its architecture permitted has grown in increasingly stark contrast to the homogenized information system it is steadily supplanting. In a sense, the Net has given new life to the First Amendment, since many of the kinds of speech the amendment was created to protect flourish online more than in any other venue.
But that's a challenge. We now have two First Amendments, in a metaphorical sense, one for the Net, one for the rest of the world.
In some ways, we should consider ourselves fortunate. Few countries have even one First Amendment, let alone two.
But it gets more complex. The United States has developed technology that has wired many nations of the world with an architecture of communication that builds within their borders a far strong First Amendment than our political ideology has ever advanced, writes Harvard Net scholar Lawrence Lessig.
"Nations wake up to find that their telephone lines are tools of free expression, that e-mail carries news of their repression far beyond their borders, that images are no longer the monopoly of state-run television stations but can be transmitted from a simple modem," Lessig writes in his book Code and Other Laws of Cyberspace (Basic Books).
In other words, we have exported to the world, though the architecture of the Net, a First Amendment, even before we've quite figured out exactly how ours is going to work in the Digital Age.
In a sense, technology and the First Amendment are colliding all over the information spectrum, from copyright to children's rights to privacy and free-speech concerns. For people who believe in the First Amendment, and worry about the perpetual political, cultural and civic struggles to save and preserve it, the 21st century may be their busiest time yet.