Green: Free speech, academic freedom, privacy and the right to be left alone, the right to not listen-all traditional issues of academic communication, and all relevant to the uses (and misuses) of the Internet in colleges and universities. We may have new media, but we have old problems.
White: To me, the most perplexing legal and policy problems can arise when well-recognized and wholly legitimate rights come into conflict with each other. Our law often requires a "balancing" of rights, based on the fundamental values of which the rights are mere expressions. We often find this balancing process troubling, but such is life in our complex, and pluralistic, society.
Green: The Net only makes things more complicated, if that is possible.
Brown: Green, you mention free speech . . . . What do you mean by that anyway?
Green: It clearly doesn't mean that anyone can say or write anything that he or she wants at any given time. Think of laws prohibiting false advertising or regulating the sale of stocks and bonds on the securities markets. Or laws prohibiting you from calling me nasty names and provoking me to violence.
White: I would like to submit that there is no free speech. There are innumerable ways in which my speech is limited every day. Some of these ways are quite important. For instance, I'd like to tell my boss what I think of her-but if I did, I'd be looking for a new job. And I can't afford that right now (although the time is drawing near for a showdown). I can't speak my mind in that arena.
Brown: Well, I'd like to set up a booth at that new shopping mall down the street, to tell the shoppers how the construction of the mall has ruined our neighborhood, but the management of the mall wouldn't allow it.
Green: But these are not problems of free speech. The government doesn't compel you to shut up in these cases. White, you choose to keep silent for your own best interest. And Brown, the mall manager chooses not to provide you with a forum; but it's a matter of indifference to the government whether you are allowed to speak at the mall. To your chagrin, bosses and mall owners have rights as well. As I understand the principle of free speech, it's only a restraint on the ability of the government to shut us up. If I control a Web site on the Internet, I don't violate your rights of free speech by declining to include your views. You can create your own Web site if you like.
Brown: I could, but I think your site would probably be more interesting.
Green: Let's take a question from real life. I noted a posting on the Internet from someone at a small, private college with a church affiliation. The school wants to restrict students from gaining access to Web sites which are deemed (in the school's estimation) to contain pornography. If the school does that, is it restricting the students' rights?
White:: Of course it is. And it is discriminating as well. Our question is whether the discrimination and these restrictions are unlawful. The college wants to restrict the students' rights, because it wants to define itself as having a certain purpose and meaning which distinguish it from "Roseanne" and MTV.
Brown: I'd like to understand what the college means by "restrict" here. Would a student be expelled, or suspended, or warned for gaining access to these forbidden sites? Or does the school just want to ensure that no one can use its computers and software as a means of approach?
Green: Not clear. Let's suppose that the school's main concern is to keep its own computers free from pornographic bits. Can the college set up a "software screening" mechanism that prohibits access to specified Web sites?
White: Why not, if it's a private school?
Brown: What if it receives grants or funding from the state?
Green:: That shouldn't matter in my opinion. Lots of people and businesses receive government subsidies, but that doesn't make them government actors.
Brown: Could the government make a rule that, if a private college takes the money, it must allow unrestricted Internet access? Sort of a free speech contract?
White:: If the federal government has the power to make detailed laws that protect and advance the values embodied in the First Amendment, then that kind of rule would seem to be permitted in our system.
Brown: But wouldn't such a rule injure the free speech rights of the college, because it forces the college to permit activities that it considers to be wrong?
Green: The school doesn't have to take the money, any more than the student has to attend the school. But let's take a less speculative example. Suppose the school discovers some renegade students who, feeling challenged by the software-imposed restrictions and rising to confront it in the best student tradition, figure out a way to circumvent the restrictions.
Brown: That seems a very likely scenario, students being students.
White: I don't see why we should stop the school from expelling the students if the Internet access regulations are well-understood parts of the institution's rules. The students aren't required to attend the college. If they don't like the college rules, let them leave and find some place more to their liking.
Green:: Censorship, love it or leave it. Is that your view, White?
White: No, but I think a part of my right of freedom of expression is my right to refrain from supporting causes or activities that I find offensive. My freedom of speech is just the logical complement of your freedom to not listen.
Brown: I think that's a freedom that I'm about ready to exercise, if you two don't mind. Green, you can e-mail me with the names of any alt.news.groups you want me to avoid for my own good.
Green: All three of us know that the paternalism of such a "forbidden" list would only encourage you to use those groups, Brown.
White: Given Brown's rebellious tendencies, that goes without saying. We'll see how well the trustees of the private college appreciate that fundamental, and intriguing, aspect of human behavior.
Edmund B. (Peter) Burke is an attorney in the Corporate & Technology Practice Group at Powell, Goldstein, Frazer & Murphy, a law firm with offices in Atlanta and Washington, D.C.