The Need to Leap Almost Before You Look: Creating Precedent for Electronic Freedom, Now, or Perhaps Never.

Harvey A. Silverglate

Silverglate & Good, Boston

The law, by its very nature, is an extremely conservative instrument. This is clear when one considers legislation. Once Congress adopts a method for dealing with a problem, it can take decades to reverse its course, even if it is an obvious disaster. And when the disaster is not quite so evident, change may take longer or even not come at all.

When dealing with courts and litigation, the situation can be even worse, for there is built into the judicial system a deep respect for precedent. According to the common law tradition of case law development, once a case is decided, the same rule of law has to be applied to identical or even similar fact situations that may later arise. The only way for a new set of facts to escape the fate of a similar fact situation from an earlier case, is for the court to conclude that the newer situation is sufficiently distinguishable from the earlier one, to fall within another analytic category and hence a different rule, thereby producing a different legal result.

The role of precedent is at no time more important than when the law deals with some new social or technological phenomenon, where there has been inadequate experience to make it clear which analytical framework or, to put it differently, which precedent is the appropriate one to govern the new situation. It is at such times that enormous damage can be done, particularly to constitutional rights which should be, but are not always, applied to new ways of exercising protected activities.

Precisely this phenomenon is seen in the approach adopted by Congress, and then largely approved by the courts, with respect to legislative and administrative control of the then-new technologies of communication that developed between the two World Wars, and which flowered after World War II radio and television. Government control denominated "regulation" of the communication airwaves was justified initially on the theory that without a regulatory framework to sort out and assign the scarce bands, a variety of evils would flow, including destructive monopolistic practices on the one hand, and chaos and interference on the other. The courts, in reviewing the powers and conduct of such agencies as the Federal Communications Commission ("FCC"), generally upheld the power of the Congress, and of the FCC, to regulate the airwaves, distinguishing the new communications technologies from the older print media, on the basis of the peculiar characteristics of electronic media. The older print media, therefore, retained near-absolute First Amendment protection, while the new media were substantially shackled.

The true depth of the lost opportunity for bringing free speech to the airwaves was recognized only when, gradually, the Congress and the FCC moved from the regulation of the technical aspects of electronic media, into the area of regulation of content, and then down the slippery slope into outright censorship.(1) The FCC's role in regulating the content of electronic speech has grown like Topsy, and it is extraordinarily difficult to turn the FCC back, in light of a long series of court decisions approving increasing governmental control of electronic media, even though the "scarcity" rationale should long ago have lost any force whatever in light of new technologies (including cable transmission) that have eliminated the scarcity problem.

The phenomenon is dramatically demonstrated in a case that, at this writing, is pending before the United States Court of Appeals for the District of Columbia Circuit, Action for Children's Television, et al. v. Federal Communications Commission and United States of America.(2) In that case, a number of parties including ACT, the Pacifica Foundation (which operates non-profit radio stations), PEN American Center (the writers' civil liberties organization), the poet Allen Ginsberg, and a number of other writers, have challenged the FCC's enforcement of the so-called "Helms Amendment", which bans the broadcast of "indecent speech" on radio and television on a 24-hours-per-day basis.(3) "Indecent speech", as a practical matter, is speech, normally of a sexual nature, that is found to be "offensive" by some FCC bureaucrat.(4) Speech of considerable merit can be and has been banned from radio and television by virtue of its "offensiveness".

Under the FCC's broad and vague indecency standard, the Pacifica radio stations have been forced to cancel or heavily edit dramatic readings of some of our era's best literary works, including, for example, Allen Ginsberg's Howl, Alice Walker's The Color Purple, James Joyce's Ulysses, John Steinbeck's Grapes of Wrath, and D. H. Lawrence's Lady Chatterly's Lover. When Pacifica recently informed Ginsberg that it could not broadcast such classics of his as Kaddish and Birdbrain!, he joined the ACT lawsuit, as did Pacifica.

Surely, it is a far journey from regulation of the electronic media in order to avoid monopolistic or chaotic exploitation of then-scarce broadcasting bands, to the broadcast censorship of great works of literature which a bureaucrat might deem offensive. But it has indeed happened, and only time and considerable litigation will tell whether this sort of "regulation" can be pushed back that is, whether precedent can be distinguished or abandoned so that enough toothpaste can be put back into the tube in order that radio and television can join the print media as forums for free expression.

What does all of this have to do with computers and computerized communication and publication?Unfortunately, we are now seeing the same telltale signs of government overreaching with respect to these new technologies, as we have beheld in the area of radio and television. In some ways, computer communications, information storage, and electronic publishing systems look like printing presses, typewriters, and filing cabinets, which have remained relatively free; in other ways, they look like radio, telephone, and television, which have become subject to abusive governmental control. It is not at all clear which approach the Congress and the administrative agencies will take toward these new technological means of communication. Nor do we know how far the courts will allow the government to go in controlling, regulating, restraining, or even censoring their applications.

These issues are being determined right now, in legislative and administrative arenas, as well as in the courts. Unfortunately, few people in the legislative and administrative branches, and even fewer in the judicial branch, understand these technologies and their implications. It is not at all clear that a computer disk will be treated like a filing cabinet for Fourth Amendment (search and seizure, and privacy) purposes. It is not clear that a computer will be given the same First Amendment (free press) protection as a printing press. And it is not a foregone conclusion that computerized bulletin boards will be given the First Amendment (free speech) protection of other public communications forums.

These questions will be answered in cases that are being litigated right now. Unfortunately, the technologies involved have not been around long enough for it to be obvious to legislators and judges that the new technologies should be entitled to the same constitutional protections as are accorded to the older print media. Unless a major effort is made now, even before the new technologies comfortably settle in and demonstrate that they are indeed the modern equivalents of the older print media, legal precedents will be put in place which will allow government to do to computers what it has already done, with a disturbing amount of success, to radio and television. If this is allowed to occur, it bodes to be a major disaster for the constitutional rights of generations to come.

This is why we must leap into the fray now, even though our more cautious instincts tell us that it is in many ways premature. We have a lot more to learn, we tell ourselves, before we can wisely decide precisely how to treat these new technologies. But we simply cannot afford to wait while repressive precedents are established. We have to establish the early precedents in favor of freedom. In the world of science and technology, errors generally get tossed out as scientific method inexorably demonstrates that they are wrong. In the world of law, however, error, once enthroned, is a lingering monarch. We cannot allow this to happen in cyberspace.

1 Of course, regulation of technical aspects of a new technology can also have the effect of cutting down on the flow of free speech and ideas. However, this is still different from regulation based upon the content of the communications.

2 Docket No. 88)1916. Oral argument was held on January 28, 1991. In the name of full disclosure, I should note that my law firm, Silverglate and Good, along with the New York firm of Rabinowitz, Boudin, Standard, Krinsky & Lieberman, represents Pacifica Foundation as well as Intervenors Allen Ginsberg, PEN American Center and others, in this case.

3 Previously, the courts have upheld the power of the FCC to ban such speech from the airwaves, so long as a "safe harbor" was left during which adult material could be broadcast, while children are asleep. The Helms Amendment abolished the safe harbor.

4 "Indecent" speech differs from "obscene" speech, in that the latter is not only more narrowly defined by the courts, but it also excludes anything with "serious literary, artistic, political, or scientific value". Hence, offensive or pornographic speech which nonetheless has such value, is protected in the print media. However, speech can be barred on the airwaves, under the "indecency" ban, even if it has such value that is, even if it is not obscene.

2/13/91

Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility All rights to copy the materials contained herein are reserved, except as hereafter explicitly licensed and permitted for anyone: Anyone may receive, store and distribute copies of this ASCII-format computer textfile in purely magnetic or electronic form, including on computer networks, computer bulletin board systems, computer conferencing systems, free computer diskettes, and host and personal computers, provided and only provided that:

1. this file, including this notice, is not altered in any manner, and
2. no profit or payment of any kind is charged for its distribution, other than normal online connect-time fees or the cost of the magnetic media, and
3. it is not reprodunor distributed in printed or paper form, nor on CD ROM, nor in any form other than the electronic forms described above without prior written permission from the copyright holder.

Return to CFP'91 Index page.

Return to the CPSR home page.

Send mail to webmaster.