CFP'93 - A New Frontier for Freedom of Expression
by Mike Godwin
At first it doesn't seem like speaking or writing at all: You invoke a command at your computer keyboard, and after a short pause you hear a dialtone and a rapid series of tones coming from your modem. One or two rings later and the modem on the other end responds with high-pitched squeal. Your modem answers back with a similar squeal. The login message prompts you for your name and password, and soon you're connected.
But connected to what? It may be a hobbyist's bulletin-board system, a university's mainframe computer, or a commercial information service. But no matter what you're connected to, you've just become another explorer of the newest frontier for the exercise of the freedoms of expression: the electronic frontier. Coming to grips with this frontier - and the stories and issues that it will generate - will be a major challenge for this generation of journalists, and for all of us who are committed to the spread of freedom of speech, writing, and thought.
Yet is the electronic frontier really a new frontier? After all, most professional journalists would be less than amazed at the assertion that computer technology and the freedom of expression are intimately linked. In the United States, for example, all urban newspapers, and an ever-increasing number of rural ones, rely on computers for word-processing and typesetting. Computers also mediate the transmission of wire-service stories to subscribing newspapers. Broadcast journalism has long relied on computers as well, for gathering news, for presenting it graphically, and for transmitting it by satellite. These trends have only accelerated in the last 15 years as the personal-computer industry has made this technology more and more affordable.
But the true freedom-of-expression significance of the spread of computer technology has only just begun to register among journalists and nonjournalists alike. For all the influence of automation in the newsroom, many journalists (even broadcast journalists) and freedom-of-expression advocates still think primarily of words printed on paper when they hear the term "freedom of the press."
This is a mistake. Increasingly, citizens of the world will be getting their information from computer-based communications - electronic bulletin boards, conferencing services, and networks - that differ significantly from both traditional print media and broadcast journalism. (For lack of a better term, let's call these collectively "online communications.") And because we will rely more and more on this third source of information, it is vital that we all work to ensure that this medium be afforded the same strong protections of freedom of expression that we advocate for more traditional media.
Freedom of the press and the computer publisher
In the United States, of course, fighting for recognition of First Amendment protections for online communications may be an uphill battle - First Amendment arguments are not as popular as they used to be. Sure, journalism and journalists were held in high regard after the reporting of the Watergate scandal, but it's clear that this high-water mark has yet to be reached again. When I worked as a journalist in the '80s I was constantly reminded by sources of the common assumption that a newspaper or magazine article wouldn't get things right, or would distort the facts to reflect a particular bias. More recently, opinion polls showed the public to be unsympathetic to media complaints about press-pool reporting during the Gulf War. The major newspapers, magazines, and television networks - often just components of still larger corporate organizations - are increasingly regarded by the American man in the street as just another special interest. Invoking the First Amendment looks like special pleading.
Compare the American media today with the printers and publishers in 18th-century America. In the most famous freedom-of-expression case in the American colonial era, John Peter Zenger put his own freedom on the line for what he published. His plight was one his fellow Americans could identify with. Do the heads of Time Warner or CBS or Gannett have the same concerns as Zenger? Face the same risks? Clearly not. And does the average American today have the same opportunity to be a publisher - to be heard - that Zenger had?
Not too long ago, the answer to this second question also was no. Many of us are familiar with A.J. Liebling's famous observation: "Freedom of the press belongs to those who own one." And it was because those who "owned one" were increasingly large, inaccessible corporate entities that legal scholar Jerome Barron began arguing in the late 1960s that there was - or ought to be - an "emerging First Amendment right." This right was the right of the public to have access to media. The problem was that most people don't own a newspaper or radio station. To contribute to public debate, they may write a letter to the editor, or take part in a demonstration, or solicit signatures on a door-to-door petition drive. But the chances of their being heard are miniscule compared to those of John Chancellor or Abe Rosenthal or Michael Kinsley.
The world of computer communications, however, has turned out to be the great equalizer. Suddenly, everyone can become her own publisher, reporter, or editorialist. What's more, she has as good a chance of being heard as anyone else in the electronic community. The new computer-based forums for debate and information exchange are witnessing perhaps the greatest exercise of freedom of expression that the United States, and the rest of the world, has ever seen.
What's different about the electronic frontier?
To recognize the freedom-of-expression significance of this new medium we must first understand it. How does it work? How does it differ from the speech, print, and broadcast paradigms with which we are already familiar?
The easiest case to understand is the electronic bulletin-board system (BBS). The operator of a BBS typically dedicates a computer and one or more phone lines at his home or business for the use of a "virtual community" of users. Each user calls up the BBS and leaves public messages that can be read by all other users or private mail that can be read by a particular user or both. BBSs become forums - digital public houses, salons, and Hyde Park corners - for their users, and users with similar interests can associate with one another without being hindered by the accidents of geography.
A step up from the BBS in complexity is the conferencing system or information service. Like BBSs, these systems are typically based on a single computer or set of computers located in a particular geographic area. They differ in capacity: they have the capability of serving dozens, or hundreds, of users at the same time. Compuserve of Columbus, Ohio, and the WELL (Whole Earth 'Lectronic Link) of Sausalito, California are two of the better-known examples of such systems. Each is home to a lively set of communities of users located all across the country. Compuserve maintains a proprietary network (also used by the WELL) that enables users to dial in without racking up immense long-distance charges. Other services, such as Prodigy, maintain their own proprietary networks.
Still further up the scale in complexity is the distributed network, which is not located in a particular geographic area but is maintained and supported on a large number of computers located all over the country (or all over the world). The best-known example of a distributed network is the Internet, which directly connects thousands of computers at universities, government entities, and commercial and noncommercial organizations around the world with one another. Hundreds of other computers gain access to Internet-connected systems via dialup telephone lines. Together, this vast system of interconnected computers is often called "the Net," and its public conferencing system ("Usenet") and electronic-mail services have enabled hundreds of "virtual communities" of like-minded individuals to spring up. The immediacy of electronic mail and Usenet has already led to their supplanting of scientific journals as the major communicators of scientific discovery and research.
Computer networks have abolished the limits of geography for those who use them. In the next generation, expect to see the growth and interconnection of national and international public network systems - the infrastructure on which private companies will build a range of information services and forums for expression and association.
At this point, it's worth noting that what all these systems, from the smallest single-line BBS to the Internet, have in common today is their reliance on text. This is an especially interesting development, since it has been argued that the power of visual media will continue to undermine the influence of the printed word. It's useful to note, however, that this July marks both the 10th anniversary of MTV and the 10th anniversary of the IBM personal computer. Even as cable television watchers have grown increasingly accustomed to fast, slick, and thrilling visual images, the burgeoning population of computer users has grown more adept at writing effectively to each other. The world of the networks is a true democracy: your influence is measured not by wealth or position, but by how well you write and reason.
This reliance on the printed word is, of course, something that the computer-based services share with traditional print media. But they differ from print media - and from broadcast media - in two very important ways. First, the means of communication are cheap enough for almost everyone to gain access: a desktop computer and a modem can be purchased now for a few hundred dollars (still another way in which the new medium is far more democratic than its predecessors).
The second difference follows from the first: while traditional print and broadcast media rely on a "one-to-many" model, computer-based communications of the new sort are "many-to-many." A newspaper is a typical "one-to-many" system: information gathering and reporting are supervised by a hierarchy of editors and other management personnel who control the flow of copy and make numerous editorial judgments about what information to include or discard. Information tends to go in one direction only: from the editors to the readers.
Computer information services, in contrast, are "many-to-many" systems - in general, they rely on little or no hierarchical editing function. Instead, these services are a colloquy of different voices with different styles, with information flowing in multiple directions at once. The "filtering" function performed by newspaper editors is left to the readers, who are also contributors. The very distinction between "reader" and "reporter" is blurred.
This may sound like anarchy, but in practice it's more like a town-hall meeting, albeit one in which everyone has a chance to speak, no one is shouted down, and everyone has time to develop and explain her ideas. Some systems, like Compuserve, rely on moderators to keep conferences on track, but their role is less that of an editor, who may make line-by-line changes of a writer's copy, than that of a discussion leader. At their best, these online conferences manifest a give-and-take that surpasses even that of face-to-face discussions. When we're face-to-face, the intimacy of physical proximity tends to be offset by inevitable starts, stops, and hesitations of oral conversation, and by the distractions of physical presence. Online, we each have the chance to write paragraphs rather than sentences - to develop arguments rather than interject comments.
The new medium also differs from broadcast media. It's a matter of current American Constitutional law that FCC regulation of broadcasting is appropriate because of the purported "scarcity" of broadcast frequencies (NBC v. United States, 1943, and Red Lion Broadcasting v. FCC, 1969) and the "uniquely pervasive" nature of the broadcast medium (FCC v. Pacifica Foundation, 1978). But computer-based communication neither relies on "scarce" resources nor is so "pervasive" as to intrude upon the sensibilities of an unwary reader the way a broadcast might.
What will the issues be?
We can learn an important lesson from the history of broadcast regulation in the United States and in other countries: namely, that legislatures and the courts are reluctant to recognize in a new medium the same kind of protections they unhesitatingly grant to the traditional media with which they are already familiar. Nevertheless, there are strong arguments that online communications deserve such protections.
The United States Supreme Court has articulated one such argument: it has given a fairly broad definition of the "the press" for the purposes of interpreting the First Amendment's Press Clause. The Court has held that "[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets.... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion" (Lovell v. City of Griffin, 1938). Freedom of the press, says the Court, includes "the right of the lonely pamphleteer who uses carbon paper or a mimeograph as much as of the large metropolitan publisher who utilizes the latest photocomposition methods" (Branzburg v. Hayes, 1972).
Surely online communications are numbered among "every sort of publication which affords a vehicle of information and opinion." And the main difference between computer users and "the lonely pamphleteer" is that technology has made the former a lot less lonely.
Increasingly you'll be hearing stories about "regular folks" (as distinct from dedicated computer hobbyists) who use online communications as an integral part of their daily activities. Citizens' groups will rely on electronic forums to organize events, develop policies, and conduct meetings. Law enforcement, computer users, and the courts will grapple with the issues raised when the same computer that holds evidence subject to an authorized search or seizure is also a forum for First Amendment-protected expression and association.
And what happens to publishers' liability for defamation or obscenity on a system in which such material can be posted and read by others long before the system operators/publishers have any chance to review it? Not only aren't there easy answers to these questions, but not everyone has recognized that the questions are there.
Still, there are, of course, millions of individuals around the world who are already beginning the hard work of settling this frontier, investing tens of hours in learning arcane computer operating-system commands and telecommunication tricks, followed by hundreds of hours online. These people will be our first resources when we begin to figure out what kinds of online communities can function, and what kinds of laws and institutions we need to accommodate them. And, as journalists, communications theorists, and policymakers begin to recognize more and more the significance of events out on the electronic frontier, these early explorers will be our guides in the new territory, pointing the way to the new social forms of the 21st century.
Mike Godwin is the staff counsel for the Electronic Frontier Foundation (EFF). The EFF was established to help "civilize the electronic frontier" - to make the new computer media truly useful and beneficial to everyone rather than only to an elite, and to ensure that the new media are protected by our society's highest traditions of the free and open flow of information and communication. For information about EFF, e-mail email@example.com; write EFF, 155 Second Street, Cambridge, MA 02141; or call 617-864-0665.
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Created before October 2004