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Free Speech on the Internet
Nicholas Johnson

A friend of mine had her America Online account cancelled
unceremoniously the other day.  It seems her foul-mouthed son uploaded
some language the AOL censors didn't like.

We may think AOL and Prodigy censorship of their members' speech are
just isolated exceptions to Net culture and the online way of life.

We should think again.  Some in Congress want to censor all of
cyberspace.  And many judges are willing to uphold the censors -- and
overrule "our First Amendment rights" -- even without legislation.

The law of electronic free speech is evolving.  We can still help shape it,
but not for long.

The story begins with our 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.  A TV or radio owner/host may, as a matter of grace, put you on
the air.  So what's the problem?

Suppose s/he doesn't like what you want to write, or say.  Maybe s/he
fears the loss of advertising dollars, the objections of political pals or
customers -- or just  doesn't like "your kind."

What are your legal rights to put your point of view to that medium's
readers or viewers, 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 (not unlike the FCC's "personal attack" rule
for broadcasters).  The U.S. 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 not as a matter
of right.

Businessmen opposed to the Viet Nam 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
buy commercials on the channels that are carried.

Needless to say, journalists have no First Amendment rights.  Owners are
not only free to censor copy, but to hire and fire on a whim.  Employees
of other firms may find their speech restrained as well.

In short, the Supreme Court has given censorship rights to virtually every
mass medium that exists.  Naturally, Internet providers want no less.

Ironically, however, one of the legal theories behind the $200 million
defamation suit against Prodigy is that because it censors it becomes
responsible for customers' speech.  Censorship has its price. 
(CompuServe won an earlier case, in part, by emphasizing their lack of
censorship.)

Protectors of the public morals needn't fear.  Digital torts and crimes --
defamation, pornography, copyright violations, theft, stalking -- are
usually just as illegal as their analog predecessors.  Perpetrators can be
sued.

Let's take inventory.  How many free speech rights have we already lost? 
Why?  And what can we do to hang onto the few we may have 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
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
could not censor what was said.

Now phone companies want to own the information and entertainment
they carry.  Will that give them, too, the right to censor?  Some courts
already think so.  And campaign contributions may win the argument in
Congress.

We find ourselves 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 total separation of content and conduit as the
Internet is privatized may still be our best hope.  It's the only free speech
forum left for those of us without $200 million in spare pocket change to
buy our own newspaper or TV station.
 
Let your Senators and Members of Congress know that, whatever may
happen to the Internet, the continuation of democracy requires that
Congress insure cyberspace remains the free speech "forum" it is today. 
Those providing the conduit should be forbidden to censor the content. 
Otherwise 260 million of us may soon find our only legal right to share
controversial thoughts with each other has been limited to snail mail.
_______________
Nicholas Johnson (1035393@mcimail.com; http://www.sunnyside.com),
one-time maverick FCC Commissioner, is a public lecturer, writer, and
visiting professor at the University of Iowa College of Law in Iowa City.
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