FREEDOM OF SPEECH UNDER THE FIRST AMENDMENT:

A PRIMER FOR  INTERNET USERS

by Gary Michael Smith, Esq.

Copyright 1997

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.^[i]

INTRODUCTORY COMMENT 

The  First Amendment ranks among the most controversial Amendments to the United States Constitution.  The First Amendment is a concept, not an absolute, and it is the source of several distinct bodies of law which define our rights of speech, religion, press, assembly, and governmental petition.    It is also, in combination with the remaining nine Amendments comprising the Bill of Rights, the source of “penumbral rights” such as privacy.

The First Amendment is a product of ancient history and the more proximate centuries of English Common Law and European political thought.  Since its ratification on 15 December 1791, history, public policy, jurisprudence, political philosophy, and technology have and continue to shape the First Amendment.   Presently, technology can be credited as being the dominating force affecting interpretation and scope of the First Amendment.  

Social interaction has been digitized, as millions of people log-on to interact through e-mail and chatrooms.  It is believed that eventually government and economy will move to the digital medium.   This move will alter our political system and our culture.   As these new technologies come to the forefront, the question is asked, is the First Amendment big enough to carry us into the next century?   Is it the case that the effect of emerging  technology was utterly alien to the framers of the Constitution in their agrarian America?

American jurisprudence is rich with cases that define the boundaries between reasonable or necessary government intrusion and a free society’s needs for liberty.  While technology such as the Internet has furthered the ability of communication and extended liberty, it has thrown the boundaries between governance and liberty into flux.   Over the past few decades, courts across the United States to as high as the Supreme Court of the United States have had to wrestle with the application and development of law to temper government infiltration into and government regulation of speech in the new technology avenues.   The Internet has become the next proving ground for existing law and the forge for a profusion of new law which will reestablish those boundaries into the next millennium.

Business and profits drive the current Internet frenzy, but freedom of speech remains the true gauge of value the Internet brings to ours and global society and culture.   Proof of this value can be found in all corners of the Internet, from the vigorous exchanges  throughout the USENET to the on-line reports which emerged from China during the Tianenmen Square uprising.

Because of the immensity of First Amendment law, this article is necessarily restricted to introductory discussion of First Amendment speech issues.  This article is an attempt to highlight major questions that have or may arise in the context of speech regulation in “cyberspace.”   However, this article is by no means exhaustive of the subject.

WHAT IS MEANT BY SPEECH AND FROM WHOM IS SPEECH PROTECTED

The existence of the First Amendment  does not mean that speech can not be regulated.  As will be discussed throughout this article, governments and private entities constantly seek to and succeed at regulating speech.  The First Amendment merely establishes the boundaries which must be abided if speech regulation is to be permitted.

In terms of the First Amendment, speech is exactly what you think it is -  plus more.  Speech includes thoughts, ideas, concepts, expressions, the spoken word, dramas, music, dance, gestures, art, books,  broadcasts, pamphlets, magazines, and anything else that could be considered a creation or transmission of idea.   The right not to speak is also a part of speech.

Although textually limited to “Congress shall make no law...”, First Amendment protection has been extended beyond the Federal government  to limit the scope of regulatory power of State governments, municipalities and their officials and agents as well.  This extension of power has been accomplished  through the 14th Amendment and a legal principle embodied in case law collectively known as the “Incorporation Doctrine.”  In special circumstances,  First Amendment protection can be extended over private entities as well. 

In order for any regulation to be subject to the First Amendment, that regulation must involve “state action,” i.e., regulation by a government, or regulation by a private entity with a nexus to the government.^[ii]    A nexus is achieved where the “state...facilitates the action of the private entity” or delegates power to that entity which is “traditionally exclusively reserved to the State.”^[iii]

In sharp contrast to a government’s need to meet legal scrutiny to regulate speech, and absent a “nexus,” there is no authority imposing like-Constitutional requirements upon private entities seeking to impose regulations on their own property or in their own media.   For example, America On Line’s Terms of Service provides for penalties including the termination of subscriber service for the uploading and presence of certain matter on its network. ^[iv]

America On Line is a private entity and its network is privately owned.  America On-Line’s business can not be said to have been facilitated by the government, nor can it be said that it presently enjoys a governmentally delegated power.   America On Line may, so far as the First Amendment is concerned, do as it pleases with its network including active censorship of any speech content it deems.^[v]    Most large networks, Internet service providers, and BBSs enjoy similar freedom of choice to self-regulate and censor or not to regulate at all.  

Private censorship activity on-line is already rampant and is neither new nor unknown.   Prodigy back in the early 1990s took a very public stance on censoring communications on its network.   Presently, it is almost impossible to find a private network or provider that does not reserve the right to bar material or edit content. 

It is essential therefore to differentiate between government vs. private regulation and public vs. private property, as they are the difference between First Amendment protection and none. 

WHAT SPEECH IS NOT PROTECTED

In terms of the First Amendment, most lay-people assume that all speech is protected.  This is not the case.  Certain topics or subjects of speech have been held so contra to public safety or welfare that they have been deemed unworthy of protection.  When speech is unprotected, the utterer of that speech can be liable for its utterance.  Further, when speech is unprotected, the government can prevent it before it occurs.   Prior restraint is the term for when the government prevents speech from occurring.

The best example of unprotected speech is child pornography which is outlawed in all States.  Other types of unprotected speech include obscenity, incitement, fighting words, defamation, invasion of privacy, and false advertising.   

Prior Restraint

Prior restraint is a reverse form of regulation which seeks not to punish speech after it has occurred, but rather to prevent it from occurring in the first place.  Prior restraint is the legal analogue to censorship.  It evolved from the ancient requirement of government review and approval prior to publication.   Generally, prior restraint is unconstitutional, but there are exceptions. 

The most common examples of prior restraint are court-imposed or regulatory agency-imposed injunctions preventing the publication of material involving obscenity, defamation, fighting words, invasion of privacy or false advertising.  As explained below, each of these examples also usually carries a private cause of action for damages after-the-fact, if  the material had been published.   An important note, before a prior restraint injunction becomes permanent,  a court must weigh the merits of the subject matter for its content, be it  defamatory, obscene, etc. 

Other grounds to legitimize prior restraint include national security and criminal proceedings.   For example, in at least two cases, the Supreme Court has upheld requirements that former agents of the Central intelligence Agency be required to submit manuscripts for “breach of security” review by the Agency prior to publication.^[vi]   Criminal proceedings are permissibly subject to prior restraint for the purpose of protecting the defendant’s Sixth Amendment rights.   Permissible prior restraint in the criminal context include gag orders, barring cameras, and closed pre-trial proceedings.  

Obscenity 

In spite of United States Supreme Court Justice Potter Stewart’s vague pronouncement  that he could not adequately define obscenity but “knew it when he saw it,”^[vii] a test for obscenity has emerged from the Supreme Court.   To clarify Justice Stewart, most States have a statute which defines obscenity.

The current obscenity test, enunciated in Miller v.  California,^[viii] states that material is obscene if:  (a) The average person, applying contemporary community standards, would find the work, taken  as a whole, appeals to the prurient interest;^[ix] (b) The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (c) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 

(Note that pornography is not the same as obscenity.  To lose its Constitutional protection, pornography must be found to satisfy the Miller obscenity test.)

What befuddles the Miller obscenity analysis is the application of two distinct  “community standards” to identify obscenity.  The first is the community standard regarding prurient interest.  Under the Miller test, the local community sets the standard on the prurient quality of speech.  But, there is the second community standard, the community standard regarding content value.   The content value standard is a national community standard.^[x]   Thus, while one local community may deem speech as appealing to  prurient interest, the whole nation (not literally, of course) gets its say on whether the content of that speech has merit. 

The Miller test is of general interest to all users of the Internet, and naturally of substantial interest to the growing on-line adult-theme businesses which have flooded the Web.  As the Internet obeys no political or geographic boundaries, it is highly conceivable that obscene messages transmitted over the Internet could get their creator in trouble with prosecutors in multiple distant (or local) localities. 

Risk of criminal or civil liability for obscenity is not limited to the creators of  obscenity alone and could extend to service providers.   Many service providers host adult-theme businesses, racier USENET groups, chatrooms, and e-mail.  Obscenity could be passing through a service provider’s system all the time.  It is possible that a service provider could be held accountable for that obscenity, even though the service provider may have had no hand in its creation.

It is generally understood that the physical constraints of actually reviewing every bit of data passing through a system is impracticable if not impossible.   Therefore, it is difficult for service providers to know if users are transmitting obscenity.   This fact alone may be what saves a service provider from liability resulting from the obscene speech of its user.   Part of the legal mechanism which could protect a service provider from liability is to analogize service providers to “common carrier” cases and “secondary distributor” cases.    This process is discussed in detail below in the section covering defamation.   Also, one case has emerged in the Federal Courts which suggests that ignorance and a hands-off policy may be the only thing which protects service providers.  This case is also discussed in detail in the obscenity section, below .^[xi]

Incitement: Clear and Present Danger

In its modern form, Incitement is the scenario in which the government can punish you for falsely yelling FIRE!  in a crowded theater. 

Incitement evolved from war-time cases where citizens were punished for having criticized the government or from having attempted to incite revolution or lawlessness.   Although these cases eerily smack of our conception of the state of civil liberties in cold war Soviet Union or modern-day China, State and the Federal regulation barring certain topics of politically subversive speech have been upheld by United States courts.^[xii] 

The current test of Incitement is that  Incitement exists where “advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”^[xiii]   Note, the actual occurrence of lawlessness is NOT an element. 

Although no case has held such, it is quite possible to have an Incitement case occur as a result of a communication across the Internet.   Picture the scenario of some individual simultaneously transmitting across the USENET and various chatrooms calling for some immediate violent or retributory conduct (imagine the “mad as hell” scene from Network).  The sender of such message could face prosecution in several states; possibly in other countries as well.  The closest analogue to this scenario is  Weirum v.  RKO General, Inc.,^[xiv]  in which a radio station was held liable for damages caused by the frenzy of listeners who, spurred on by a radio broadcaster’s on-air contest,  were speeding in their motor vehicles to get to a certain destination designated by the d.j.  The station, in spite of its claimed right of free speech, had been found negligent and liable for the damages.

Fighting Words

Fighting words is the concept that some utterances are not to be tolerated by civil society.   Fighting words are typically epithets, but include all statements which fictionally could grant the listener a license to punch the speaker in the nose.

The fighting words doctrine has substantially eroded and is now judged under an incitement standard.^[xv]    The imminence which the fighting words doctrine demands, and the basic lack of in-person interaction on the Internet renders fighting words nearly moot in terms of its discussion in relation to the Internet.   However unlikely though, it remains within the spectrum of possibility that some government might attempt the enaction of an anti-fighting words regulation, ala the Communications Decency Act of 1996,  regarding communications over the Internet.  Of course, most private service providers already bar harassing, racial, or discriminatory language.^[xvi]

Defamation

Defamation is the tort theory which redresses wrongful damage to reputation.  Defamation consists of  two torts: slander, the spoken word; and libel, the printed word.  

Because of the overriding concerns of a free press in the United States, the defamation doctrine has been changed from the Common Law to suit the First Amendment balance between government regulation and social liberty of a free press.^[xvii]  To successfully prosecute on the tort of defamation, the plaintiff must prove 1) A defamatory statement; 2) of or concerning the plaintiff; 3) that is published to a third person; 4) which results in damage to the plaintiff’s reputation.  And, under modern Constitutional standards,  if the statement is of a matter of public concern or involves a public figure,  5) the statement must be false; 6) the defendant must be at fault.

Naturally, there are standards set by case law to determine what is a matter of public concern, who qualifies as a public figure,  what the varying degrees of fault must be to warrant an imposition of liability, and what damages are permissibly recoverable. 

There are defenses to a claim of defamation.   These defenses are consent, truth, fair comment (the opinion defense),  absolute privilege, and qualified privilege.  There is also the damage reduction theory of mitigation which includes, for example, the publication of a retraction.

Further, local law determines if the deceased and non-persons can be defamed.  Generally though, the dead do not enjoy a cause of action for defamation, and entities such as corporations enjoy very limited rights which typically fall under unfair trade practice law.  Groups and associations can also be defamed, each member having a cause of action for defamation directed at the group.

Many states have enacted media-assisting legislation to counter multiple liability for print media and also to declare broadcasts as either libel or slander but  not both.   However, there is to this author’s knowledge, no legislation in place specifically addressing the Internet.

Of special interest to Internet users, and of paramount importance to service providers, is how defamation on the Internet  is dealt with by courts.  Most important is how courts treat service providers in instances of defamation by on-line users.  

Traditionally, media companies and publishers have been held liable for published defamatory statements which were spoken or written by agents, advertisers, and others not necessarily associated with the company.^[xviii]    According to that legal tradition, “common carriers” such as telephone, telegraph, microwave, and satellite communications services are held liable for defamation only if they have specific knowledge that the material they transmit is defamatory and not under privilege.^[xix]  Further, “secondary distributors” such as bookstores and libraries are only held liable if they are knowingly in possession of defamatory (or obscene - see the section covering obscenity, above) material.^[xx]

The inherent problem with service provider liability for defamation on the Internet is that service on the Internet takes many forms.  In one regard, service providers are like “common carriers,” merely acting as a conduit through which e-mail and USENET postings and an array of other data passes.  In another regard, service providers are like “secondary distributors,” hosting libraries of files and text uploaded by users and subscribers for download and viewing by other users and subscribers.

Consider the ramifications to a service provider if one of their subscribers uploaded or transmitted a defamatory statement onto the network.   Technically, the service provider would have a hand in the dissemination of that statement, and under those circumstances, the service provider would be a publisher.   Under the strictest interpretation of defamation law, that service provider would be liable for each instance that the defamatory statement was viewed.   A successful  lawsuit against a service provider under these conditions would assure the end of e-mail, chat rooms, the USENET, home pages, and probably the whole Internet. 

The encouraging bit of news is Cubby v.  CompuServe.^[xxi]    In Cubby, CompuServe was named as a defendant in a libel suit resulting from the on-line publication of some alleged defamatory comments about the plaintiff.   The comments were contained in an on-line newsletter which was present on CompuServe’s system, but over which CompuServe exercised no editorial control.  CompuServe knew of the newsletter, but had no specific knowledge of its defamatory content  prior to it being uploaded.  Treating CompuServe as a secondary distributor, and emphasizing its lack of editorial control, the Court, on summary judgment, dismissed the count against CompuServe.

Liability of service providers for user defamation is still unsettled.  Under Cubby and past media cases, it seems likely that so long as a service provider refrains from editorial control it can minimize or eliminate liability risk.  However, this is by no means a hard and fast rule.   The next big test case is still looming out there, waiting for the appropriate fact scenario.     

Invasion of Privacy

Invasion of privacy consists of four torts derived from common law.  These torts are Appropriation of Name or Likeness,  Intrusion upon Seclusion,  False Light, and Public Disclosure of Private Fact. 

Invasion of Privacy shares a certain kinship with defamation, in that it can impose liability for statements made about others.  However, Invasion of Privacy greatly departs from defamation in that it permits liability for telling the truth about someone.   The elements of the four torts of invasion of privacy are described as follows.

“Appropriation of Name or Likeness” consists of 1) an unauthorized use; 2) of someone’s name or likeness; 3) for commercial advantage.   This is the tort that stops you from slapping Tiger Woods’ face all over the golf clubs your company is trying to sell.  This is most significant to web site and homepage makers and fan sites which proliferate the web in support of everything from artists to politicians and who use images and names of celebrities to promote their sites.   Besides the obvious copyright and trademark issues raised by slapping celebrity images onto your page, generally speaking, if you are operating a site for profit and have not secured permission of the person whose image you are using, you can be held liable under Appropriation of Name or Likeness.  Remember, “commercial advantage” is key.

“Intrusion upon Seclusion” consists of 1) intrusion; 2) into private affairs; 3) which intrusion is objectionable to a reasonable person.   This could theoretically be a tort used against hackers.

“False Light” consists of 1) attribution to the plaintiff; 2) of attributes, actions, or opinions, 3) which do not belong to the plaintiff; 4) which are objectionable to a reasonable person.   The best example of this tort is the placing of a photo with an erroneous caption which may inaccurately state the event depicted in the photo.   On-line commentary and edited photos could invite liability under this tort.

“Public Disclosure of Private Fact” consists of 1) public disclosure; 2) of private information; 3) regarding the plaintiff; 4) which disclosure is objectionable to the reasonable person.   Note that the truth of the matter disclosed is irrelevant.  

Some of the Invasion of Privacy torts have been eliminated, curtailed, or expanded by each State.  Therefore, it is essential to consult State law to ascertain liabilities under Invasion of Privacy. 

False Advertising (Commercial Speech)

False advertising is exactly what it sounds like and involves only commercial speech.  Commercial speech is “expression related solely to the economic interests of the speaker and its audience." ^[xxii]

Generally speaking, commercial speech enjoys First Amendment protection.  However, there are exceptions,^[xxiii] and commercial speech can be regulated if: (1) the speech involved concerns a lawful activity and is not misleading, (2)  the asserted government interest in regulation is substantial, (3)  the regulation at issue directly advances that interest, and (4)  the regulation is not more extensive than necessary to advance that interest. ^[xxiv]

Each state has deceptive advertising laws and consumer protection laws.   Naturally, false advertising is of direct concern for service providers as well as anyone running an on-line business or advertising on the Internet.   America On Line’s latest user access class action backlash following its flat-rate media blitz makes an excellent  example.

SPEECH THAT IS PROTECTED AND HOW IT CAN BE REGULATED

Assuming you have read this far, you know what kinds of speech are not protected by the First Amendment.  But, the analysis does not stop there.  Even though all remaining speech is protected by the First Amendment, the government can still regulate it.  The way that governments can regulate speech is either for its content, or through content-neutral time/place/manner regulation and conduct incidental to speech regulation.    

A regulation that is directly assaultive of  the content of speech is subject to the highest level of scrutiny, Strict Scrutiny.  Content‑based regulations of speech will be upheld only when they are justified by "compelling" governmental interests and " narrowly tailored" to effectuate those interests.^[xxv]  Content-based regulations are presumed unconstitutional, and it is the government which carries the burden of proving otherwise.  With the exception of the categories of unprotected speech (above), content regulation is almost always defeated.  The Communications Decency Act is being challenged by the American Civil Liberties Union on this ground (and others).

Regardless of which type, all regulations must also first meet the vagueness and overbreadth tests.    Any regulation on speech will be declared void if it is vague, i.e., it does not give reasonable notice of what is prohibited,  or if it is overbroad, i.e., its prohibition extends to more speech than that at which it is aimed.  Therefore it is essential to first analyze any regulation for vagueness and over breadth.

Time Place Manner

A time/place/manner regulation is one which regulates not the content, but rather the conveyance hour, location, method or properties of speech.^[xxvi]   Time/place/manner restrictions have been used to stem the secondary effects surrounding some forms of speech,^[xxvii] and courts have permitted time, place, and manner restrictions under a variety of circumstances such as volume^[xxviii] and  location.^[xxix]    Other examples include urban sound ordinances, zoning^[xxx],  and panhandling ordinances.^[xxxi]

When it comes to time/place/manner regulations, all places are not created equal.   Case law has developed recognition of the fact that some places have a rich tradition of fostering free speech, while others do not.  Because of the necessity to ensure the fullest First Amendment protection and freedom of speech, the Public Forum Doctrine was created.^[xxxii]  Simply put, the Public Forum Doctrine declares that some places are so intimately bound to free speech tradition that regulations of time/place manner upon them must withstand a high level of scrutiny.  No small coincidence, these places of high scrutiny are called public forums.

Public forums consist of two types, traditional and designated.  A traditional public forum is one that has traditionally been a place of unfettered free speech.  Traditional public forums include public parks, streets, and sidewalks.^[xxxiii]  Designated public forums include other property that the state has opened for expressive activity by part or all of the public.   Regulation of such property is subject to the same limitations as that governing a traditional public forum.^[xxxiv]

Regulation of speech in a public forum is subject to a high level of scrutiny and can survive only if it is (1) content neutral, (2) narrowly drawn to achieve a significant government interest, and (3) leaves open alternative channels of communication.^[xxxv]

All remaining state-owned or state-controlled property are called non-public forums.  Because of the limited nature of speech activity within non-public forums, limitations on expressive activity within them need only be reasonable and viewpoint neutral.^[xxxvi]

The Internet obeys no borders or schedules, it is both everywhere and no where, and does not lend itself well to “manner” restriction.  Time/place/manner regulations would have a difficult time being implemented to regulate the Internet.    The Public Forum Doctrine is also incredibly complex, and many of the cases decided under it seem not to harmonize, thus adding to the complexity.   There is a definite question of how the courts would approach a forum analysis for the Internet.   It has been proposed that the Internet ought to be treated as a public forum.^[xxxvii]  However, no case exists which declares it such.   Further, there are a minority of  circumstances  to really support a public forum contention, as most of the servers on the Internet are privately owned.  As discussed above, private owner’s restrictions generally are not subject to the First Amendment.

Therefore, any regulations imposed directly over the Internet by a government would likely have to be imposed over government owned or run or privately owned  “nexus” property sites.   Many universities qualify as “nexus” sites, and one of those universities may, through its terms of service, be unwittingly fostering the circumstances for the first public forum for the Internet case.

Regulation of Conduct Incidental to Speech

In some circumstances, the government is justified in regulating non-speech that is fettered with speech.   This is the circumstance of barring the activity of solicitation although it may squelch the message of the solicitor;^[xxxviii] or barring the activity of burning a draft card, even though it may squelch the expression of the draft protestor.^[xxxix]

For a regulation on conduct fettered with speech (aka expressive conduct) to be valid, it must (1) be within the Constitutional power of the Government, (2) further either an important or substantial governmental interest, (3) be unrelated to the freedom of expression, and (4) be no greater than is essential to the furtherance of that interest.^[xl]

Internet-relevant examples of regulation of conduct incidental to speech include the criminalization of posting credit cards numbers (other people’s cards, that is),^[xli] knowingly transmitting a computer virus,^[xlii] transmitting child pornography,^[xliii] and making obscene or harassing telephone calls.^[xliv]  In each of these examples, speech is involved, but the overriding concern of controlling conduct connected to that speech prevails.

THE COMMUNICATIONS DECENCY ACT OF 1996

On Wednesday, March 19, 1997, American Civil Liberties Union vs. Janet Reno was  submitted to the Supreme Court.  This is the first case to address a direct assault on speech on the Internet .   ACLU v.  Reno  will decide the Constitutionality of the Communications Decency Act of 1996,^[xlv] and perhaps by the date this article is published, the Supreme Court will publish its opinion. 

The United States District Court, Eastern District of Pennsylvania enjoined enforcement of the Communications Decency Act of 1996.  In all likelihood, courts in other circuits will not attempt enforcement of the Act until the Supreme Court resolves it.

The Communications Decency Act makes it a crime, punishable by up to two years in prison, for anyone to use online computer communications to transmit or "display in a manner available to minors" any material that is "indecent" or "patently offensive."

The various provisions challenged in ACLU v.  Reno are as follows.    The first is §223(a)(1)(B), which makes criminal  the use of a  "telecommunications device[s]"  to transmit an "indecent" communication "knowing that the recipient of the communication is under 18 years of age."  The term "indecent" is undefined in the statute.   The second is § 223(d)(1) which applies to "interactive computer services."   It criminalizes communications to minors that, "in context, depict or describe, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."  The third is § 223(d)(1)(A) which makes it criminal  to "use an interactive computer service to send (such material) to a specific person or persons under 18 years of age.   And, § 223(d)(1)(B) makes it a crime to " display (such material)  in a manner available" to any person under eighteen.

The Communications Decency Act is attacked on many fronts ranging from vagueness and overbreadth to inability to withstand Strict Scrutiny.   Regardless of how  the  Supreme Court holds,  ACLU v. Reno  will irrevocably alter the Internet’s evolution.   The effects of this case will be global.

CONCLUDING REMARKS

As outlined in this article, the law and policy of Speech on the Internet is unclear and unsettled.    Presently there are more questions than answers and the legal trappings of the Internet looks more like a minefield than a topiary.

The Government’s first foray into Internet big regulation is currently being battled in the Supreme Court.  If that battle is lost in favor of regulation, the Internet may atrophy into nothing more than a shopping mall and Disney-esque playspace for children.    Given the commercialization of  the Internet, there are definitely camps which would welcome such a result. 

The Internet’s future lies in its ability to be a free communication medium.   One day, the sum of all documented human knowledge could be available to anyone, anywhere.  To this author, this is the purpose of the Internet.

This great leap forward in communication does not happen for free.  For now, the Internet must embrace government assistance and commercial enterprise in order to grow.   This embrace comes at a price, for so long as there are governments and so long as business seeks to monopolize the Internet, regulation, restriction, censorship, exclusion, and condemnation threaten free speech.

Government regulation, of course, can be readily fought, though not always won.   But, private regulation is not so easily battled.  Also, under the present state of legal uncertainty, it may not be so wise to fight private regulation.   As discussed in this article, private regulation and censorship may be what protects service providers from death by lawsuit.   Without service providers, there is no Internet. 

To settle the uncertainty,  legislatures must enact law to protect free speech on the Internet, not regulate it.  Also, service providers must be willing to take a stand for free speech, and to back off on restrictive terms of service.   This may invite litigation, but only through lawsuits can the courts render guidance.

fin.