free speech in cyberspace.txt

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            13See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
             (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

            14The history of common-carrier regulations, rather than
             being derived from First Amendment law, is descended from
             the regulation of railroads in the nineteenth century. See
             De Sola Pool, infra note 18, at 75-107.


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            but because computer networks rely on telephone lines, its

            technological foundation is that of the common carrier.

            Perhaps even more problematic, though, is that this new

            technology just doesn't look like print, and policymakers

            may therefore be hesitant to afford it the same

            protection.15

               Such problems may prevent a major new outlet for free

            expression from achieving its potential.  But the danger may

            be even more significant.  If more traditional technologies

            such as print are replaced by electronic delivery, the First

            Amendment will no longer protect "the press" as it does

            today.



               Literature Review               Literature Review               Literature Review

               The difficulties associated with fitting a new

            communication technology such as computer-based

            communication into existing legal frameworks has not escaped

            legal commentators.  "Electronic publishing," writes former

            White House policymaker Richard Neustadt, "provides square

            pegs to fit into the round holes of old regulatory

            categories."16  And Kim Uyehara writes, "Lawmakers are





                                

            15See, e.g., De Sola Pool, infra note 18, at 197.

            16R. Neustadt, G. Skall, M. Hammer, "The Regulation of
             Electronic Publishing," 33 Fed. Comm. L.J. 331, 332
             (1981).


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            having a hard time keeping legislation current with the

            technical explosion."17

               Most writers have taken either a broad approach --

            discussing very generally the legal and social problems of

            new communication technology -- or a very narrow one, asking

            and answering very specific legal questions.  The most

            significant entry in the former category is by Ithiel de

            Sola Pool, whose book Technologies of Freedom,18 cited

            frequently by other authors, seems to be the seminal work in

            the field.  The book is slightly dated as far as the

            technology goes -- 1983 is a long time ago in the world of

            computers -- but its discussion of the underlying issues is

            insightful.

               De Sola Pool's book is more descriptive than analytical,

            concentrating on elucidating the legal problems of new

            communication technology rather than solving them.  It opens

            with a warning:

                    For five hundred years a struggle was fought,
                 and in a few countries won, for the right of
                 people to speak and print freely, unlicensed,
                 uncensored, and uncontrolled.  But new
                 technologies of electronic communication may now
                 relegate such old and freed media such as
                 pamphlets, platforms, and periodicals to a corner
                 of the public forum.  Electronic modes of
                 communication that enjoy lesser rights are moving
                 to center stage.  The new communication
                 technologies have not inherited all the legal
                 immunities that were won for the old.... And so,
                 as speech increasingly flows over those electronic
                                

            17K. Uyehara, "Computer Bulletin Boards: Let the Operator
             Beware," 14 Student Lawyer, April 1986, at 30.

            18I. de Sola Pool, Technologies of Freedom (1983).


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                 media, the five-century growth of an unabridged
                 right of citizens to speak without controls may be
                 endangered.19

               De Sola Pool provides a history of communication

            technology, starting with the origins of print20 and

            covering the emergence of electronic media.21  He also

            summarizes the history and current state of modern media

            law, dividing media into regulatory categories; one chapter

            each is devoted to print,22 common carriers,23 and

            broadcasting.24  Additional chapters address the newer

            technologies of cable25 and -- most significantly for the

            purposes of this thesis -- electronic publishing.26  It is

            here that de Sola Pool warns that regulations driven by

            technology may eventually undermine the First Amendment:

                    If computers become the printing presses of the
                 twenty-first century, will judges and legislators
                 recognize them for what they are?... Practices are
                 now being canonized in regard to cable television,
                 computer networks, and satellites which may
                 someday turn out to be directly relevant to
                 publishing.  People then may ask in puzzlement
                 where protections of the free press have gone.27
                                

            19
              Id. at 1.
            20
              Id. at 12-14.
            21
              Id. at 23-54.

            22Id. at 55-74.

            23Id. at 75-107.

            24Id. at 108-150.

            25Id. at 151-188.

            26Id. at 189-225.

            27Id. at 189.


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               De Sola Pool makes no specific policy recommendations for

            dealing with these new problems.  Instead, having sounded

            the alarm, he suggests general principles to guide

            policymakers.  He suggests that the First Amendment applies

            equally to all media, that all communication should be

            unfettered by government restriction, and that regulation --

            including common-carriage rules -- should be a last resort

            reserved only for cases of true physical monopoly.28

               De Sola Pool's main message, though, seems to be that

            vigilance may be required to safeguard the First Amendment

            into the future.  "Lack of technical grasp by policy makers

            and their propensity to solve problems of conflict, privacy,

            intellectual property, and monopoly by accustomed

            bureaucratic routines are the main reasons for concern," he

            writes.  "But as long as the First Amendment stands ... the

            loss of liberty is not foreordained."29

               A similarly broad -- and cautionary -- approach is taken

            by law professor M. Ethan Katsh.30  Katsh suggests that new

            communication technologies not only present novel legal

            problems, but "are likely to affect both how we think about





                                

            28Id. at 246.

            29Id. at 251.

            30M.E. Katsh, "The First Amendment and Technological Change:
             The New Media Have a Message," 57 Geo. Wash. L. Rev. 1459
             (1989).


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            information and what the relationship is between citizen and

            government."31

               Katsh argues that electronic communication not only

            provides a new physical channel for speech, but changes the

            nature of the information itself:

                    Electronic information is even more active and
                 more easily manipulable, revisable, and changeable
                 [than print].  It is changeable in ways that print
                 is not and, by its very nature, moves much faster.
                 One who looks at words on a computer screen or
                 even at words on paper that have emerged from a
                 "printer" may think that he or she is seeing
                 print, but the static or fixed quality of print is
                 gradually being lost as information is encoded in
                 electronic form.32

               Katsh is not optimistic about the future of First

            Amendment law.  "[D]ifferences in treatment among media can

            be expected to multiply," he writes.  "It is even possible

            that 'full' First Amendment protection, whatever that may

            mean in the future, will not be enjoyed by any medium other

            than, perhaps, the spoken word."33  But he argues that

            despite greater legal restrictions, the power of new

            technologies will diminish the ability of the state to

            impede the flow of information.34  Prior restraint, for

            example, may become virtually impossible as means of




                                

            31Id. at 2.

            32Id. at 13.

            33Id. at 17.

            34Id. at 17.


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            publication proliferate.35  Katsh sees in the future a "new

            communications environment," an environment characterized by

            a vigorous system of expression but an unstable and confused

            First Amendment framework.36

               Apart from de Sola Pool and Katsh, few authors appear to

            have tackled the broad issues associated with computer

            communication.  Most have concentrated instead on specific

            legal questions associated with specific media.  Almost

            universally, the authors ask which model of media law can

            apply to these new technologies.  But their analyses

            generally concentrate on very narrow regulatory and

            liability issues rather than the larger First Amendment

            issues involved.  The question of legal models is generally

            answered only to the extent necessary to resolve the narrow

            questions they have tackled.

               Also, most of the existing literature is devoted to

            analysis of one specific form of computer communication, the

            electronic bulletin board system or BBS.  The discussion of

            BBSs is further limited to one particular legal question,

            the liability of the BBS's system operator, or sysop, for

            messages posted by users on the BBS.







                                

            35Id. at 21.

            36Id. at 23.


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               Attorney Robert Charles examines the question of sysop

            liability for defamation posted on a BBS.37  Charles uses

            the analogy technique used by virtually every other author

            writing on this subject.  "This question may be answered by

            looking to the standards of liability that have been applied

            to other communication technologies," he writes.38  He then

            divides existing media into two categories based upon their

            legal status in defamation cases: print media, which are

            generally held accountable for defamation, and common

            carriers, which generally are not.39  The exception to that

            common carrier rule is when a common carrier is a "knowing"

            participant in the defamation.40  Charles ultimately

            recommends the formulation in explicit detail of a new,

            clear standard "tailored specifically to computer bulletin

            boards," incorporating the "knowing" test used for common

            carriers.41

               Most writers tackling the sysop liability question

            discuss not defamation but messages related to criminal

            action, mainly computer hacking and other forms of computer



                                

            37R. Charles, "Computer Bulletin Boards and Defamation: Who
             Should Be Liable? Under What Standard?" 2 J. of Law and
             Technology, Winter 1987, at 121.

            38Id. at 123.

            39Id. at 132.

            40Id. at 132-3.

            41Id. at 147.