Flamethrower (10-96)
by  Solveig Bernstein, Esq.  







       The decision to remain silent is an act of conscience, just like the decision to speak. So the view, that acts of "private censorship" violate rights of free speech, is incoherent. If an online service provider ousts a Web site that posts explicit messages about sex, in violation of the terms of their service contract, or a non-profit organization persuades some Internet Service Providers to refuse to host "Holocaust Revisionist" Web sites, these decisions do not violate rights of free speech.

Indeed, such private content selection decisions are themselves acts of free speech. They are just like a newspaper editor's decision not to run a certain letter to the editor, or a publisher's decision not to publish a certain book. The editor and publisher have created a means of distributing speech. The outlet they have created is their property, and they have the right to decide what to do with it. Other private companies in the speech distribution business are no different.

Private content selection has the superficial feel of government censorship. But it's dangerous to confuse the two. To see what can happen, let's accept the premise that a private company that refuses to provide a forum for speech violates the would-be speaker's free speech rights. This is a very serious charge. Assuming government exists for some legitimate purpose, it surely exists to protect our rights. If the ISP or OSP mentioned above is violating someone's rights, it logically follows that the government should take action against them.

First, this means that the government would become responsible for overseeing the distribution of computer network content. Clearly, this is not a very good idea. Second, fortunately, it's fundamentally incompatible with the First Amendment. The Supreme Court recognizes that "[t]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." And the right to refrain from speaking includes the right not to provide a forum for other speakers (a misguided case or two to the contrary notwithstanding).

Any premise that leads us toward more government control over computer networks should be questioned. Where does the notion that private content selection violates free speech rights come from? Often, it stems from the view that we have rights to speech because "more speech is good." On this view, free speech rights float out in the ether, with no connection to any other aspect of our world and come into play whenever we need "more speech." But free speech rights are nothing like that. They're just another aspect of property rights and only extend as far as property rights. Free speech doesn't mean I have the right to walk into my neighbor's house to make a speech, or write an essay, however enlightened, on the wall of an office building.

Another fallacy behind the premise is the view that free speech rights come into play against anyone who has a lot of power over anyone else. And, the theory goes, ISPs and OSPs just have too much power. They might, in some very hypothetical unlikely future, turn into monopolists.

This argument also goes too far, too fast, in the wrong direction. ISPs and OSPs don't have any more power over authors than the New York Times or any big publishing house. Most parents have even more power over their children. These kinds of power relationships are a necessary and natural part of life; anyone who has something we want or need will have power over us. This doesn't mean that if someone is exercising that power, he or she is violating our rights. A theory of rights that aims to do away with these power relationships is fundamentally unrealistic; its ultimate aim would have to be to abolish reality itself. By contrast, it is both necessary and proper to expect rights to provide a line of defense against the kind of power uniquely exercised by government--the power of soldiers and police.

So, we might criticize private content selection decisions as intolerant. We could point out that suppressing "revisionist" nonsense about the Holocaust might backfire, and that the truth should be brought out in open discussion. We might point out that overly restrictive ISPs and OSPs will lose customers. But none of this has anything to do with rights of "free speech" protected against true censorship by the First Amendment.

Solveig Bernstein is Assistant Director of Telecommunications & Technology Studies at the Cato Institute in Washingotn, D.C.
      by  Declan McCullagh  








Far from being the saviors of the Net, corporations may be the ruin of cyberspace.

Let's be clear: governments have done plenty to hurt the Net. By passing the Communications Decency Act (CDA), the U.S. Congress extended television- style censorship to the Net. Other countries are close behind.

But governments aren't the worst of the cybercensors--the CDA has been declared unconstitutional and netizens are organizing internationally. Private businesses pose the more sinister threat to free expression online.

Take America Online (AOL), which now boasts over six million members. In a move akin to the paranoid antics of a kindergarten schoolmarm, AOL this summer started deleting messages posted in Spanish and Portuguese since its monitors can't understand them. Undercover AOL cops continue to yank accounts of mothers who talk about breast feeding and mention the word "nipple." The company's gapingly broad "terms of service" agreement allows it to boot anyone, anytime, for any reason.

Or consider private universities. Carnegie Mellon University bans sexually- explicit Usenet newsgroups--including innocuous ones devoted to Japanese anime--and "offensive" comments posted online. Cornell University forced students who offended campus feminists with an e-mail satire to plea-bargain to "voluntary" punishment. Brigham Young University disciplines students for downloading porn.

Don't forget net-filtering software. While busily touting itself as anti-censorship, CyberSitter quietly blocks the National Organization of Women and Queer Resources Directory Web sites. CyberPatrol prevents teen pornhounds from investigating animal and gun rights pages and, inexplicably, the Electronic Frontier Foundation's censorship archive. NetNanny cuts off AIDS resources including the sci.med.aids and clari.tw.health. aids newsgroups. SurfWatch bans domestic partner Web pages and Columbia University's award- winning "Health Education and Wellness" site.

Now, I don't dispute that state censorship is more heinous. The government has guns, police, and gallows to back up its laws. Anyone caught violating the CDA gets slammed with a $250,000 fine and two years in Club Fed.

But to focus exclusively on the evils of government censorship is myopic. Private censorship also shrinks the marketplace of ideas, a concept California recognized when it passed a law striking down private speech codes at universities.

That's why considering only the "speech rights" of businesses without looking at the effects the *exercise* of the rights have is bonkers. It ignores the very real effects of private censorship online which is more insidious and harder to combat. And perhaps getting worse.


       People claim the street as theirs on two occasions: to protest and to celebrate.
Throughout the history of the United States, there always have been readily available public spaces where people can assemble freely. In lawyerspeak, these spaces are "public forums" and aren't subject to content-based censorship. The only restrictions the state may impose, such as a requirement for a permit, must be unrelated to the protesters' message. People can scream "U.S. out of Vietnam," "legalize child pornography," or any politically explosive message they choose.

Where will the public squares exist in 21st century cyberspace?

Nowhere. Cyberspace is and likely will continue to be controlled by corporations. Unlike in meatspace, there is no public forum for controversial expression that offends the multinationals that jointly own the Net.

Sure, it's trivial to shift your embattled Web site from one Internet service provider to another. Right now, at least. In Canada, Marc Lemire didn't find it so easy when his "White Nationalist" site was kicked off of a number of ISPs in quick succession. (The Simon Wiesenthal Center has been busy firing off terse letters to Lemire's ISPs and clamoring for government crackdowns as well.)

This problem will become acute if the small number of Internet backbone providers like MCI and Sprint, which number only in the single digits, buckle to public pressure from groups like the Wiesenthalers and refuse to provide connections to ISPs that host controversial Web sites.

If that happens, netizens will find their rosy vision of the Net as the birthplace of a new form of democracy overwhelmed by the sad reality of a new media oligarchy aborning.

Declan McCullagh is a Washington D.C.-based editor for HotWired and runs the fight-censorship digest.
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