On the Net with... Alan Derscowitz

      A courtroom MacGyver of sorts, Harvard law professor and esteemed attorney Alan Dershowitz has come to be known as America's most famous lawyer of "last resort," and has counseled some of the nation's most high- profile defendants over the last two decades, including O.J. Simpson, Mike Tyson, Claus von Bulow, Jim Bakker, Leona Helmsley and Michael Milken.
       Having recently completed his new book Reasonable Doubts about the Simpson case, the prolific author is already busy writing his next hardback and is currently featured on his own talk-radio show aptly called Dershowitz!, a syndicated program from multimedia venture SW Networks that can be accessed via the Web, in part, at http://swnetworks.com.
       IU was able to catch up with the law scholar this month (and fortunately receive free counsel) to discuss concerns over current legal issues surrounding the Internet. In regard to matters of online hate speech, copyright and trademark infringement, privacy rights, international network regulation and the hotly disputed Communications Decency Act, Professor Dershowitz lays down the law and gives it to us straight.

Internet Underground: Can you tell me a little bit about your experience with the Internet, and do you spend much time on the World Wide Web or sending e-mail?
Alan Dershowitz: I do not myself. My office does, but my interest in the Internet grows largely out of the fact that I am a strong advocate of freedom of communications, freedom of speech, freedom of expression. I think the major issues of freedom of expression in the next century are going to grow out of the new technologies. The First Amendment was drafted in 1793 at a time when freedom of speech meant Tom Paine standing on a street corner handing out primatively printed copies of Common Sense for a penny an issue. That is so far from the communications superhighway that we are going to experience in the next century that I am concerned that the spirit of the First Amendment may be abrogated by concerns about the new technology.
IU: The Communications Decency Act has certainly raised many concerns among Internet users about civil rights and freedom of speech issues. In the past, it seems the courts have followed a "technology will lead and the law will follow" mentality. In your opinion, do you think Congress has rushed into things with this technology and have they made a mistake in banning "indecent" material from the Internet?

AD: Yes, I do. I think Congress has overreacted and has responded with a blunderbuss rather than with a scalpel. There should be, on the Internet, an ability for two people to communicate with each other confidentially without the government in any way interfering, much like you and I have the right to talk over the telephone or I have the right to send you a first class letter. That's part of what should be available and that should be governed by one set of rules. Another set of rules necessarily has to apply when you're dealing with open communication, bulletin boards, that are equally accessible to everybody regardless of age.

IU: What then are Congress' options in regulating the Internet?
AD: There are two options, or several options -- one is to bring all the Internet users down to the standards of the youngest, most vulnerable user and say nothing goes on the Internet unless it's suitable for children. Imagine applying that same standard to books. There was actually a case on that in New York that went to the United States Supreme Court 30 or 40 years ago when New York passed a statute requiring that all books published or certain kinds of books published in New York be suitable for children. And the Supreme Court said, ŽNo, we can't mortgage the First Amendment to the interests of children.' The alternative is to ban children from the Internet and say the Internet is an adults-only media of communication and if you don't like it, send mail and make phone calls. There is a third alternative and that is for the Internet, and this is my preferred alternative, not to be censored at all, but for children not to be able to have access to it without expressed parental permission so that parents make the decision whether they want their children on the uncensored Internet.
IU: The Internet has been rather anarchic up until now and people have been stealing copyrighted graphics and documents from one another's sites; the concept of libel, it seems, has been rejected by many early adopters of the Internet...
AD: Let's be clear. The concept of libel depends on what you're talking about. If you post something on the Internet, there's no question that I can sue you. The question is whether or not the "owners" of the Internet can be sued for allowing you to libel me. So the law of libel applies, but it doesn't apply fully.
IU: It just seems that people on the Internet speak with a rather loose tongue, and at times, outrageously. People have enjoyed being able to say whatever they want without repercussions on the Web. I think some people would argue that the law has no place on the Web, that in fact on the Internet, anarchy is law.
AD: In the end, I think what's going to happen is we're going to develop many marketplaces and we'll probably end up with a lawless Internet and with a law-governed Internet. We'll probably have an adults-only Internet and an Internet available for children. The technology certainly permits for a multiplicity of highways. We don't have to have only one information superhighway. It may be less efficient, but the first amendment wasn't designed to promote efficiency.
IU: Assuming that there will be some form of regulation on the Internet, it seems there's a problem in that the people who use it don't necessarily know the law well enough not to break it.
AD: That's going to be an adjustment problem. I think that is true of any new technology, but we have to learn to adapt to the law. The problem is today, nobody knows what the law of the Internet is; not the most sophisticated lawyer or media expert today knows what is or what is not permissible. Words like "indecency" don't communicate very much and leave open an enormous amount of governmental discretion. The other problem is, and what I don't want to see happen, is what happened with, well, we won't name the companies...but certain companies who'll say, "Listen, we will censor racist speech, we will censor pornography but we will not censor Holocaust denial speech." Picking and choosing what they will and what they won't censor opens up enormous problems of selective censoring and selective legitimating. You don't want private communication companies using government-operated airwaves to make decisions which invidiously discriminate against one group or another.
IU: That's interesting because the Simon Wiesenthal Center, some months ago, spoke out against the use of the Internet by certain fringe groups spreading messages of hate and intolerance to the world. But this seems to be working, as you said, contrary to rights provided in the First Amendment. What do you think of their concern as far as who can publish and what can be published on the Web?
AD: I understand their concern, but I disagree with them in the end. I think, in the end, the best answer to bad speech is good speech. Let's debate these issues. Let's have all sides represented. Let's make sure that liberty beats tyranny in the marketplace of ideas. We ought to be confident enough in our abilities to answer bad speech with good speech, not to demand censorship. The Internet is very powerful. For the first time, it really means that neo-Nazis in Europe and the former Soviet Union can communicate effectively with neo- Nazis in Australia and in Montana. The answer to that is not censorship. Censorship has never succeeded in preventing bigotry. The answer is to take more energetic steps to countering, on the 'net, this kind of bigotry.
IU: You mentioned how the Internet is powerful in that it allows people to effectively communicate to the world. What do you think then about regulating something that affects an international community? Should we handle things by treaty? Can Amsterdam and Beijing realistically come to an accord in regard to pornography on the Web?
AD: It's not unique to the Web. It's more pressing on the Web, but today we have the same problems with television. Canada restricts coverage of trials so Canadians tune into U.S. television to watch their Canadian trials being reported about. Jordan and Israel listen to each other's television. In the end, there will have to be some treaties, but the United States cannot become signatory to a treaty which restricts the First Amendment rights of its citizens. In the end, I think there will have to be a censorship-free information superhighway, but it may not be the only one and it may, as I say, mean multiple technology. And I don't think that's such a terrible thing even if it decreases efficiency and increases inconvenience. Nobody ever said that freedom comes cheap.
IU: Is it going to make it difficult for defense lawyers, as yourself, to defend a client with all of the case's particulars being made available, not just to the nation, but to the world?
AD: No, I think you have to live to learn with technology, you have to learn to adapt to technology, you have to learn to understand that the marketplace's ideas are international and very quick and just learn how to be a better lawyer in the face of it. You can't expect to try 21st-century cases on 19th-century technology. We also use the Internet as lawyers tremendously. The Simpson case was the first trial of the 21st-century. I was hooked into the courtroom. I was able to fax material to the courtroom immediately, I was able to access their computer programs, be able to be connected by modem. I was virtually in the courtroom. My presence in the courtroom was a virtual reality.
IU: How do you see the Internet changing the way law is practiced in this country, in light of that case, and what about the notion of being able to access legal research at the touch of a button?
AD: It's not only to access legal research, but we can access the transcript. It's much more effective in cross examination. You can push a word into the program and find out what somebody said a year earlier. It really does require lawyers to become much more sophisticated about electronic media.
IU: Lawyers who don't get wired soon, do you think they're going to be at a severe disadvantage?
AD: Definitely, I'm already feeling it.

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