Protecting free expression in Electronic Communications

By Robert M. O'Neil

Sequence: Volume 31, Number 3

Release Date: May/June 1996

Devising new threats to electronic communication has become one of this winter's favorite indoor sports.

As everyone knows, Congress made good on its promise by criminalizing the sending of "indecent" material over the Internet, where such material might reach children - though a federal judge in Philadelphia promptly blocked the new provision on free speech grounds. With less fanfare, Congress a few weeks earlier had tightened the child pornography laws, and in doing so doubled the regular penalty for electronically posted or transmitted material.

This has not been an easy winter for the major online networks, either. On two occasions the German government threatened formal action against U.S. providers - the first time to block access to sexually explicit material, the second to shield German subscribers from the rantings of a Canadian, neo-Nazi anti-Semite. Meanwhile, at the behest of New Jersey police, authorities in Fairfax County, Virginia, got court authority to search America Online discussion and
e-mail files previously believed to be immune from such scrutiny.

The most significant development of all has, however, gone virtually unnoticed in print, if not on the Internet. At the end of January, the federal court in Cincinnati upheld the convictions of Robert and Carleen Thomas, a California couple in the first appeal of a computer obscenity case. The Thomases maintained, at their home, a small electronic bulletin board, on which they posted sexually explicit and other material. Subscribers paid a modest fee to access GIF files in which the material had been posted. One such subscriber, the U.S. postal inspector in Memphis, filed criminal charges against the Thomases for "transporting obscene material in interstate commerce." The indictment also covered the physical shipment, via U.P.S., of several X-rated videotapes. The Thomases, having been convicted on all charges, appealed only the computer counts. On January 29, an appeals court unanimously sustained all the charges, rejecting a host of statutory and constitutional claims.

What is notable is not simply that the Thomases now face 30 and 37 months in prison, respectively; that would probably be their fate even if they had stuck to shipping explicit videotapes. What is startling is the court's refusal to treat the electronic material any differently from the videos. Several basic issues were raised by the Thomases and groups supporting their appeal: who "transmits" electronic material, for example, and what set of "community standards" should govern material that has never been physically displayed in the community where the trial takes place? In fact, there are fundamental doubts about the proper locus of such a trial. Venue for federal crimes lies in "any district in which the offense is committed"; that test is easily met when magazines or books or videos are mailed to Memphis, but is markedly less clear when the sole contact is providing access to a single computer patron, who then causes whatever "transmission" can be said to occur.

The federal appeals court would hear none of such distinctions. Never mind that the law on which the charges rest never envisioned electronic communication. The content of the material made it "obscene" under the law, and that was enough. As for the attenuated link between the Thomases in California and the terminal in Memphis, they knew they had at least one subscriber there, and "the effects of defendants' criminal conduct reached" the district where charges were filed. As for defining the appropriate community standards by which to judge what is obscene, "the computer-generated images . . . were electronically transferred from defendants' home in California to . . . Tennessee."

A curious coincidence heightens concern about the Thomas judgment. Pending in the very same court is the other current computer cause celebre, the government's appeal in the case of former Michigan student Jake Baker, charged with sending "threatening" electronic material across state lines (mainly a lurid tale Baker wrote and posted last winter about the torture with a hot curling iron of a female fellow student.) A federal judge in Detroit last summer dismissed the charges, though he found the story "savage and tasteless." The charges struck him as unacceptably vague; attributing criminal behavior to such an author "would amount to punishing Baker for his thoughts and desires" - something the First Amendment clearly would not allow with regard to print material. Just when most observers believed the case was dead, the government appealed. The Thomas decision thus offers an ominous portent for Jake Baker, whose case is only months behind in the same forum.

As the courts struggle uneasily with these novel cases, a few simple principles may offer guidance. Most basic is a seemingly obvious point: Computer-generated and transmitted material enjoys the same First Amendment protection as print material, except to the extent lesser protection may reflect some special feature of electronic communication. That has been the rule for all new media during the more than two centuries since the Bill of Rights came into being. The lower levels of protection that have been accorded licensed broadcasting reflect factors such as scarcity, and a special concern for the temporary use of public airwaves - factors the Supreme Court feels warrant a different standard. When it comes to cable, the Court has made clear the lower standard for licensed broadcasting does not apply, though the Justices have yet to decide just where cable fits on the First Amendment spectrum. Thus in a case such as that of Jake Baker, posting "violent fiction" on the Internet should not land the author in jail if he could not be jailed for publishing the same story in a magazine or newspaper. A search of suspect materials should respect confidentiality quite as much in electronic as in more familiar physical forms. And when it comes to laws such as those that would bar using state computers to access explicit material, the test should be whether government can tell a state worker not to bring to the workplace a personal copy of Penthouse or Hustler to read during lunch hour and coffee breaks. (Of course public employee use of state equipment - computers along with telephones, copiers and the like - may be confined to official business, but such a constraint addresses activity, not content.)

A second principle: In some situations electronic communication merits different treatment from print simply because print-related interests have no electronic counterpart. Obscenity offers an obvious example. To recall the Thomas case, the issue of "community standards" needs to be revisited with an appreciation of the new medium that the federal appeals court clearly lacked. A Memphis jury may apply to traditional materials the standards of the community in which they live, because obscene magazines or films may affect the mores of their community. But a person walking the streets, or entering the stores or theaters, of Memphis is no likelier to be assaulted by offending material from a computer bulletin board than is a citizen of Moscow or Madrid. Clearly a new departure is required - though pioneers in the electronic speech field are not yet in agreement on how to define that virtual "community" whose standards should shape judgments about electronic obscenity. All that is clear is how far off base was the Thomas court in assimilating, for this and other purposes, the needs of print and electronic media.

A third principle also emerges from our analysis: Old rules fashioned to deal with print media will seldom meet the new and quite distinct needs of electronic communication. Analogies to familiar technology may be helpful, at least initially, but soon exhaust their utility. Thus, courts dealing with early claims of computer libel have found that electronic bulletin boards and networks sued for defamation turn out to be not quite publishers, not quite bookstores, but partake some qualities of both as well as unique elements of their own. Much more often than not, the old models simply don't fit. Such dissonance is underscored by the Thomas and Baker cases, in each of which criminal charges were based upon federal laws enacted many years ago with much simpler physical means of communication in mind.

To that extent, Congress did act responsibly in crafting new laws to address new media in the Communications Decency Act of 1996. The problem was not the novelty, but rather the content of the restrictions, as Judge Ronald Buckwalter recognized in blocking enforcement of these provisions. There is no precedent for applying the term "indecent" to restrict communication apart from limited applications to licensed broadcasting (one of which is currently before the Supreme Court, and seems to be in for harsh scrutiny).

That term, unlike the vastly more familiar term "obscene," has virtually no track record. Nor is it defined in helpful ways in the statute. Thus, as Judge Buckwalter noted in ruling against the "indecency" provisions, "'indecent' [would] leave reasonable people perplexed in evaluating what is or is not prohibited in this statute." Such imprecision has been fatal to regulatory efforts in other protected media; there seems no reason for lesser solicitude when it comes to the Internet.

Equally serious (as even Speaker Gingrich recognized in his early and vigorous opposition), such restraints effectively deprive adults of access to material that may be deemed unfit for children but poses no threat to more mature viewers. Exactly 40 years ago, the Supreme Court warned that states may not "reduce the adult population . . . to reading only what is fit for children." As the current challenge works its way through the courts, the government will be called upon to explain why a different standard should exist when the medium is electronic.

That prospect returns us to our central question: Are there differences between and among media so substantial as to justify different First Amendment protection? Of course there are many and important differences, many of which have probably not yet been fully identified. The instantaneous availability of electronic messages around the world obviously sets electronic communication apart from any medium we have known and used before - fax, broadcasting, anything. The capacity to post some messages for everyone to see, while others are confined to a single addressee, also marks a new departure. But such differences are not necessarily of constitutional import; simply because they mark a new means of communicating, they do not necessarily deserve lesser protection under the First Amendment.

There are several elements that may bear on the constitutional standard. One is surely the issue of access. In the first decade or so, only the most computer-literate persons could access any messages, let alone the raciest of the news groups. The whole process of access has become vastly simplified, and within a matter of months it seems likely anyone with a modem and a keyboard can access virtually any generally posted material that is not classified for national security purposes.

At the same time, the refinement of technology to block or limit access seems to have kept pace. Thus parents who wish their children not to find newsgroups, or scan the title pages of Penthouse and Hustler, have or will have means by which to enforce their family values. Those means are likely to be at least as effective as the plastic wrappers or partial screens that bookstores and newsstands use (often under legal duress) to keep curious teens from flipping salacious magazine pages. And the computer screening/filtering devices are surely as effective as the recently adopted V-chip approach to limiting youthful access to sex and violence on television. Indeed, the House version of the Communications Decency Act would have relied heavily on self-regulation within the computer network community.

Beyond access, there are several other possibly pertinent differences between print and electronic media. An anonymous e-mail message may evoke a level of anxiety and apprehension - at least in these early days - that has no precise counterpart in print. Of course unsigned mail and disguised-voice phone calls have unsettled people for quite some time, and are not entirely redressed by such devices as handwriting analysis or caller-ID. Yet there is something about electronic communication that may cause the heart to beat faster, perhaps partly because of the propensity of e-mailers to shed inhibitions and to adopt a degree of candor rarely found in other media. Suffice it to say this is a difference that deserves closer study, and could prove to be constitutionally significant.

At least one other inter-medium difference cuts sharply the other way. Free speech has long included an exception for "fighting words" that are uttered face-to-face with high risk of physical confrontation. By definition, protagonists at keyboards may not engage in such "fighting words." Not even the most intemperate "flaming" would pose the incendiary conditions which must exist to sanction an arrest for "fighting words" on a street corner. Much the same is true of other extreme conditions where government may intervene to curb otherwise protected expression, most notably punishing speech that creates a "clear and present" danger because it threatens to incite an angry crowd to immediate violence. It is almost as difficult to imagine such incitement on the Internet as it is to invoke the "fighting words" exception to adversaries who are at their terminals rather than at one another's throats. Thus, a conscientious pursuit of differences with possible First Amendment import yields little comfort to proponents of harsher regulation of electronic communication.

What free expression on the Internet most urgently needs is three complementary steps: First, courts and legislatures need to understand far better than they seem to the presumption of full protection that any medium of communication enjoys under the First Amendment. The terms "speech" and "press" have adapted remarkably well to new technologies through more than two centuries of continual change. Of course a computer bulletin board or network is not the same as a newspaper or magazine or book. But that is not the issue. Rather the question is whether differences between the new and the old media warrant a lesser standard of protection - a judgment that has been made adversely to licensed broadcasting but not to other innovations. The record thus far, in Congress, in state legislatures and in the courts, is not encouraging. With the possible exception of the libel area, the early cases suggest that much education remains to be done.

Second, there is a need for clear and simple illustrations. Lawmakers accept (even if not always gracefully) that they cannot tell a state employee not to bring a personal copy of Hustler or Penthouse to read during lunch breaks. When they appreciate that singling out access to newsgroups when the computer is not needed for office work is constitutionally equivalent, they (and the cause of electronic communication) will have come a goodly distance. Such early steps are critical, and depend on simple illustrations and analogies.

Third, there is a critical need for positive guidance to those who make policy. Where regulation is constitutionally permissible, a candid concession may be invaluable. If, for example, a lawmaker wishes to forbid using state computers for gambling during office hours, the fact that "speech" of a sort is involved creates no shield. States can forbid gambling by state employees on state property, period. Surely they have no lesser power with respect to electronic gambling. So it may be in other areas - mere possession on the job, for example, of child pornography, much less using government equipment or premises to create such forbidden expression.

Finally, those who are technically competent and responsible should be far more creative than they have been in designing new rules and policies that fit the electronic media. The information technology community has been eloquent in telling policymakers what not to do, and why. They have been far less resourceful in guiding lawmakers who face mounting constituent pressure to "keep smut off the Internet" and the like. There is ample time to become part of the solution rather than continuing to define the problem.

Robert O'Neil is founding director of The Thomas Jefferson Center for the Protection of Free Expression. [email protected]

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