Speakers' Rights in Private Forums:
how the First Amendment might look on the information superhighway
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Private Forums 1
Speakers' Rights in Private Forums:
how the First Amendment might look on the information superhighway
In Political Freedom, his landmark treatise on freedom of speech, Alexander
Meiklejohn uses the New England town meeting to illustrate the ideal form of
political communication. Speakers are recognized in an orderly fashion and
allowed to contribute their ideas to the discussion. Speakers are required to
address the issue at hand and are discouraged from repeating what others have
said. All participants are treated equally.
For Meiklejohn, freedom of speech exists to foster the political process.
Speech is primarily a means of education, not personal expression. He says:
"The First Amendment, then, is not the guardian of unregulated talkativeness.
It does not require that, on every occasion, every citizen shall take part in
public debate. Nor can it even give assurance that everyone shall have
opportunity to do so. If, for example, at a town meeting, twenty like-minded
citizens have become a "party," and if one of them has read to the meeting an
argument which they have all approved, it would be ludicrously out of order for
each of the others to insist on reading it again. No competent moderator would
tolerate that wasting of the time available for free discussion. What is
essential is not that everyone shall speak, but that everything worth saying
shall be said."1
Meiklejohn's ideas about the citizen's role in government and the educational
value of speech have influenced several generations of political theorists. U.S.
Supreme Court Justice William Brennan incorporated Meiklejohn's ideas into the
court's famous New York Times v. Sullivan decision, noting that citizens have
not only a right but a duty to criticize their government officials.2
In subsequent decisions, the court broadened the categories of speech which
received strong First Amendment protection, finding that some commercial speech
also contributes to citizens' ability to function in a free-market democracy.3
In fact, courts during the past few decades have been reluctant to rule that any
category of speech, including explicitly sexual material, is completely without
value.4 Thus, judicial rulings have gradually led Americans to believe that the
First Amendment should not only protect everything worth saying but everyone who
has something to say.
At the same time, however, it has become apparent that not everyone who has
something to say has a forum in which to say it. Town meetings are infrequently
held and sparsely attended. Most people get their information from the mass
media, and the high cost of starting new newspapers and cable television
operations, combined with the licensing of broadcast stations, limits those
In the past few years, the Internet and commercial computer services have
emerged as an alternative to the mass media for people who want to share their
personal, political and social views with others. Computerized bulletin boards,
on which computer users can leave messages to be read by others who use the same
network, have proliferated. Bulletin boards dedicated to topics ranging from
constitutional law to Kool-Aid receive hundreds_even thousands_of messages.
Prodigy's arts bulletin board, which may be the largest, receives more than
20,000 messages each day.6
Some have heralded the network of computers, often referred to as cyberspace or
the information superhighway, as a forum for the exchange of political
information.7 New England-style town meetings need no longer take place in New
England. But access to the bulletin boards_and other electronic communication,
such as electronic mail_varies depending on how one connects to the network.
Access points are provided by educational and research institutions, community
organizations and private companies. While most of the information
superhighway's 20 million users connect through business, community and
government services, nearly five million subscribe to private services, such as
Prodigy, CompuServe and America Online.8
All access providers exercise some control over what information is available
to their users.9 For example, several Canadian universities have blocked access
to bulletin boards that discuss unusual sex acts, and California's Santa Rosa
Junior College suspended a professor after some students posted offensive
messages on bulletin boards he started.10
However, the private online services have shown a greater inclination than
public institutions to control users' postings. Last year, America Online shut
down several of its feminist forums that had the word "girl" in their titles. An
America Online spokeswoman said the company was concerned that young girls would
mistakenly think the forums were for them.11
Prodigy has received complaints about its censorship practices for years. In
late 1990, the company revoked some subscribers' access privileges after they
organized a protest of its rates.12 The dispute started when Prodigy announced a
rate increase for electronic mail which would largely impact the system's
heaviest users. Some Prodigy users posted notices on its bulletin boards, urging
others to protest the rate increase by boycotting companies that advertise on
the Prodigy network. When Prodigy deleted the bulletin board messages, the users
resorted to a chain letter delivered via electronic mail. Prodigy then revoked
the access privileges of about a dozen leaders of the protest.
"To some, this practice amounted to censorship of what many have come to regard
as an electronic arena for a full and free exchange of ideas."13 One former user
quoted in the Chicago Tribune said: "If you look 20 or 30 years out, and you
think what will happen to political debates, this is where they will occur."14
There is a strong tradition of free speech among members of online communities.
One of the earliest computer bulletin boards, the CommuniTree based in San
Francisco, was created by people who thought mediation would revolutionize
"The opening sentence of the prospectus for the first conference was 'We are as
gods and might as well get good at it.' This technospiritual bumptiousness, full
of the promise of the redemptive power of technology mixed with the easy,
catch-all Eastern mysticism popular in upscale northern California,
characterized the early conferences."15
The Internet, which began as a network of military computers, exists because
the organizations which now maintain it_universities, think tanks and government
agencies_want to exchange information. Online exchanges were intended to be a
kind of intellectual swap-meet, in which researchers and scholars could share
ideas and discoveries.
However, agreement seems to be growing that there will have to be some kind of
information filter on the Internet so the number of messages put forth will not
overwhelm users.16 Indeed, the CommuniTree died because its system operators
could not effectively purge the overwhelming number of obscene and obnoxious
messages posted by young hackers.17
No clear guidelines yet exist on who controls content on the nation's
information network. A few speech cases involving online providers have moved
into the courts, but only one has yet been resolved. In that case, Cubby v.
CompuServe, the U.S. District Court in Southern New York based its decision on
an analogy between CompuServe and traditional news vendors, such as libraries
and booksellers.18 Because no legislation or administrative guidelines have
outlined freedom of speech rights on the network, other courts may be likely to
follow the district court's example and base their decisions on speech rights
established in other mediums. Thus, the amount of protection offered to online
users in different situations could depend on what analogy the courts use in
particular sets of circumstances.
This paper will examine the analogies between online providers and other
mediums that have been proposed thus far. It will evaluate the suitability of
each analogy and attempt to gauge how much protection speakers would have if a
particular analogy was adopted. For the purposes of this paper, the term online
provider will refer to organizations that both provide access to the Internet,
bulletin boards and databases and produce material that is available in those
forums. Those organizations include private companies, such as America Online,
Prodigy and CompuServe; public institutions, such as universities and government
agencies; and community organizations, such as the Well. The term will not apply
to organizations such as the New York Times, MTV and Dow Jones Co., which
produce material but do not provide access.
One cautionary note, this study focuses on the right of online users to gain
access to online providers in order to transmit messages. The other interest
online users have is in gaining access to read others' messages. Access rights
for the two purposes may not be identical, and users' rights to read messages
bears looking into. However, that is beyond the scope of this paper.
The only legal precedent for deciding what freedom of speech rights online
providers have is Cubby v. CompuServe, a 1991 libel case. The plaintiffs, Cubby,
Inc. and Robert Blanchard sued CompuServe, its contractor that provides material
to CompuServe's journalism forum, and Don Fitzpatrick, publisher of Rumorville
USA, a daily newsletter covering broadcast journalism. Blanchard contended that
Fitzpatrick had published libelous statements about him in Rumorville and that
CompuServe and its contractor had republished the statements by making them
CompuServe requested summary judgment, saying it was only a distributor and not
a publisher of the newsletter. Distributors, such as news vendors, libraries and
bookstores are not held responsible for defamatory statements that appear in the
publications they carry if they have no knowledge of the defamation.19
The U.S. District Court in Southern New York granted CompuServe summary
judgment, agreeing that it is a distributor, not a publisher, of the contents of
"CompuServe has no more editorial control over such a publication than does a
public library, book store, or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially defamatory
statements than it would be for any other distributor to do so."20
The case did not resolve whether Cameron Communications, Inc., the company that
provides material for CompuServe's journalism forum, is a publisher or
distributor of the allegedly libelous statements.
Some legal scholars disagree with the district court's decision. Edward V.
DiLello said the analogy between CompuServe and traditional distributors is
inappropriate because CompuServe has technological capabilities that libraries
and bookstores do not.
"Software is in use that is designed to search masses of text and pick out
concepts rather than key words by searching for word relationships that conform
to a complex model generated by the software based on input from the user. The
existence of such software programs suggests that a company managing a large
flow of data, like CompuServe, may be able to flag articles containing phrases
that conform to a typical profile of a libelous statement, allowing a human
operator to examine them and check for accuracy."21
Recently, Prodigy supervisors have begun using this kind of software to find
potentially offensive messages and warn users to erase the messages or have them
Online providers' ability to censor, however, is beyond the point. It is clear
from the district court's decision that the judge held CompuServe to the same
standard as a library or bookstore because CompuServe serves the same
function _not because it has the same limitations. The judge said:
"A computerized database is the functional equivalent of a more traditional
news vendor, and the inconsistent application of a lower standard of liability
to an electronic news distributor such as CompuServe than that which is applied
to a public library, book store, or newsstand would impose an undue burden on
the free flow of information."23
Regardless of the appropriateness of the news vendor analogy, the case poses
problems for people interested in the free speech rights of online users. The
court addresses the issue of access to CompuServe briefly and only tangentially
to the issues of the case, saying: "While CompuServe may decline to carry a
given publication altogether, in reality, once it does decide to carry a
publication, it will have little or no editorial control over that publication's
Thus, the court implies CompuServe has discretion over who is allowed access to
its forums. Whether the court allows CompuServe, as a distributor, leeway to
edit content once it is online is unclear. It seems that the court is saying
that since CompuServe has chosen not to edit its forums' content, the online
provider can have distributor status. If CompuServe did edit its forums'
content, it might lose its distributor status and become a publisher. The
decision, however, seems to be left to CompuServe.
While CompuServe's owners have shunned the role of publisher, Prodigy's
executives have said they should be compared to newspaper publishers. They have
absolute control over the messages spread through their lines, and they want to
retain that control. Geoffrey Moore, Prodigy's director of market programs and
"The First Amendment protects private publishers, like the New York Times and
Prodigy from Government interference in what we publish. The Constitution
bestows no rights on readers to have their views published in someone else's
private medium. What the Constitution does give readers is the right to become
Moore is correct. If courts determine that online providers are analogous to
newspapers, the owners will have veto power over all content. Newspapers
historically have been the forums of their owners, and the U.S. Supreme Court
confirmed the power of the publisher in Miami Herald Publishing Co. v. Tornillo.
In this 1974 case, a candidate for the Florida House of Representatives sued the
Miami Herald under Florida's "right of reply" statute. The Herald had
published editorials critical of Tornillo, and he wanted the paper to print his
response. The court, in an opinion written by Chief Justice Warren Burger, said
newspapers' autonomy could not be abridged:
"A newspaper is more than a passive receptacle or a conduit for news, comment,
and advertising. The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the paper, and
treatment of public issues and public officials_whether fair or
unfair_constitute the exercise of editorial control and judgment. It has yet to
be demonstrated how governmental regulation of this crucial process can be
exercised consistent with First Amendment guarantees of a free press as they
have evolved to this time."26
Following Prodigy's revocation of users' access rights, several people,
including representatives of the American Civil Liberties Union and Computer
Professionals for Social Responsibility, proposed that online providers be
compared to shopping malls, which are considered public forums in some states.27
Public forums, such as public streets, are places where people have historically
been free to speak and distribute handbills and other materials.28 In
particular, this model has been suggested for companies like Prodigy, which
carry advertising as well as non-commercial material.
However, the shopping mall analogy has several problems. For example, the
status of shopping malls varies from state to state, and only a few states
recognize a right of access to them. While the U.S. Supreme Court originally
said shopping centers were public forums, it back tracked on that decision a few
years later. Most recently, it said states may go beyond the First Amendment
and protect citizens' right to speak in shopping malls, but there is no
Constitutional protection of speech in these areas. Further, in all four of the
shopping mall cases, the court hinged its decision on what other forums were
In the first case, Amalgamated Food Employees Union v. Logan Valley Plaza, the
court said shopping malls were public forums because they serve the same
function as towns' business districts.29 In writing the opinion, Justice
Thurgood Marshall drew on the court's decision in Marsh v. Alabama, which said
the business district in a company town is a public forum, just as it would be
in any other town.30 He said: "The general public has unrestricted access to the
mall property. The shopping center here is clearly the functional equivalent of
the business district of Chickasaw involved in Marsh."31
However, Marshall was careful to qualify his opinion by saying that functional
equivalency did not mean that access to the mall could never be restricted. He
noted: "Even where municipal or state property is open to the public generally,
the exercise of First Amendment rights may be regulated so as to prevent
interference with the use to which the property is ordinarily put by the
Four years later, the High Court, in an opinion written by Justice Lewis
Powell, backtracked, limiting the Logan Valley decision to instances where the
picketing pertained to the shopping mall's operation. In its decision in Lloyd
Corp v. Tanner, the court said its previous decision was limited to cases where
the picketing pertained "to the use to which the shopping center property was
being put" and where "no other reasonable opportunities for the pickets to
convey their message to their intended audience were available."33
In Lloyd, the plaintiffs had been distributing handbills that protested the
draft and the Vietnam War. Upon being told to leave the shopping mall, the
protesters moved to a nearby public sidewalk. Powell said: "It would be an
unwarranted infringement of property rights to require them [the mall owners] to
yield to the exercise of the First Amendment rights under circumstances where
adequate alternative avenues of communication exist."34
Further, he added: "...this Court has never held that a trespasser or an
uninvited guest may exercise general rights of free speech on private property
owned and used nondiscriminatorily for private purposes only."35
Four years later, the U.S. Supreme Court said pickets did not have a right of
access to shopping malls even when their picketing related to commercial
activity in the mall. In overturning Logan Valley, the court said the First
Amendment only protects speech from government interference. The opinion,
written by Justice Potter Stewart, said:
"Thus while statutory or common law may in some situations extend protection or
provide redress against a private corporation or person who seeks to abridge the
free expression of others, no such protection or redress is provided by the
Stewart noted the inconsistency in the court's previous cases:
"If a large self-contained shopping center is the functional equivalent of a
municipality, as Logan Valley held, then the First and Fourteenth Amendments
would not permit control of speech within such a center to depend upon the
speech's content. For while a municipality may constitutionally impose
reasonable time, place, and manner regulations on the use of its streets and
sidewalks for First Amendment purposes, and may even forbid altogether such use
of some of its facilities, what a municipality may not do under the First and
Fourteenth Amendments is to discriminate in the regulation of expression on the
basis of the content of that expression."37 (citations omitted)
Finally, in 1980, the court visited the issue one more time in Pruneyard
Shopping Center v. Robins. In a decision written by Justice William Rehnquist,
the court said states_in that case California_may go beyond the First Amendment
and require shopping malls to serve as public forums. The shopping mall owners
said the state requirement violated their rights by taking their property
without just compensation and forcing them to associate with speech they do not
The court said the owners were not being deprived of their property because
high school students' collection of signatures on a petition will not
"unreasonably impair the value or the use of their property as a shopping
center."38 The court also said that the owners probably would not be associated
with the students' views because the shopping mall is open for use by the
From these decisions, one can see that certain criteria used by the court to
determine whether members of the public have a right of access to private
property would foster claims of a right of access to online providers. For
example, the court has said the property must be open to the public_or at least
open to the portion of the public that includes the speaker_in order for there
to be a right of access. Some online providers solicit public use of their
services. The private companies, such as Prodigy and CompuServe, can only make
money if people subscribe. They advertise and offer special rates to new
customers to encourage them to sign on. Publicly owned systems, such as those
run by universities, do not solicit new users, but they make their services
available to large groups of people. University online services are open to all
students, staff and faculty in the same way their athletic centers are.
However, there are aspects of the shopping mall decisions that make them hard
to apply to online providers. First, shopping malls are public forums if the
state in which they are located says they are. Online services cross state
boundaries, creating a myriad of choice of law problems. If America Online,
based in New York, denies access to a person who lives in California and
connects through a California phone number, does New York or California law
apply? What happens when a bulletin board supervisor, who is based in Texas,
deletes a message posted by a user in Montana, who has subscribed to a service
based in New York?
Second, shopping malls are privately owned, and the court has given owners
special consideration because of the Fifth Amendment's provision against the
taking of private property without just compensation. Online providers are a mix
of privately- and publicly-owned entities. A private company, like America
Online, may have the right to deny access, but that does not mean a
publicly-owned service does. This goes back to the analogy of shopping malls and
public streets. A mall owner can deny pickets access to his mall, but the city
council cannot deny pickets access to public sidewalks. Even among public
entities, freedom of access varies. Speech that would be protected in other
public places can be censored on school campuses.40 The shopping mall analogy
has appeal_at least at first glance_but presents problems in application.
Few have suggested that regulation of online providers model that of
broadcasting or cable operators. Those models, however, are worth examining
because both, like the Internet, involve the use of public property by private
companies. In talking about the national information infrastructure, Vice
President Al Gore said:
"We are steering a course between a kind of computer-age Scylla and
Charybdis_between the shoals of suffocating regulation on one side, and the
rocks of unfettered monopolies on the other. Both stifle competition and
"The Clinton Administration believes, though, that as with the telegraph, our
role is to encourage the building of the national information infrastructure by
the private sector as rapidly as possible."41
The government has tried to steer a similar course with broadcasting; allowing
private companies to build and run the system with moderate government
Historically, the government has seen broadcasting's airwaves as a public good.
Because the number of signals that could be sent over those airwaves was
limited, regulation was seen as a necessity. When the National Broadcasting
Company (NBC) appealed some of the Federal Communications Commission's
regulations in 1943, the U.S. Supreme Court, in an opinion written by Justice
Felix Frankfurter, said: "Unlike other modes of expression, radio inherently is
not available to all. That is its unique characteristic, and that is why, unlike
other modes of expression, it is subject to governmental regulation. Because it
cannot be used by all, some who wish to use it must be denied."42
But while the government restricted the number of broadcasting operators, it
also took steps to make sure those operators shared their wealth. It required
broadcasters to provide air time to candidates for federal office, and it
established the Fairness Doctrine, which required broadcasters to cover
controversial public issues. The Fairness Doctrine also required broadcasters to
include all significant viewpoints in its coverage of these issues. As a result
of the Fairness Doctrine, broadcasting became the one medium in which speakers
had grounds to demand that a private company promote their views.
Broadcasters argued that the Fairness Doctrine abridged their First Amendment
rights because it forced them to carry messages in lieu of ones they preferred.
In response, the U.S. Supreme Court, in an opinion written by Justice Byron
". . . as far as the First Amendment is concerned those who are licensed stand
no better than those to whom licenses are refused. A license permits
broadcasting, but the licensee has no constitutional right to be the one who
holds the license or to monopolize a radio frequency to the exclusion of his
fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others and to
conduct himself as a proxy or fiduciary with obligations to present those views
and voices which are representative of his community and which would otherwise,
by necessity, be barred from the airwaves."43
Following that case, Red Lion Broadcasting Co. v. FCC, improvements in
broadcasting technology increased the number of usable frequencies, and the
growth of cable television offered an alternative to broadcasting. In 1985, the
Federal Communications Commission did a study of the effects of the Fairness
Doctrine and concluded that it did not enhance discussion of public issues.
Broadcasters who were afraid of being forced provide air time to many viewers
with opposing viewpoints shied away from covering controversial issues. In a
1986 case, U.S. Court of Appeals Judge Robert Bork said the Fairness Doctrine
was not actually a part of the Communications Act.44 The FCC subsequently
abolished the doctrine.45 Thus, in broadcasting as in other mediums, access now
lies at the discretion of channels' owners.
Virtually no one has suggested that regulation of the nation's computer network
be modeled on that of cable television, probably because cable regulations are
complex and unstable. Congress passed major acts regarding cable in 1984 and
1992, and many regulatory guidelines are still unclear. However, speakers'
rights of access to cable are worth a brief look since it is possible that cable
and computer lines will merge, making the two mediums fairly indistinguishable.
As with broadcasting, government regulation began because of cable operators'
use of public goods. In some areas, cable television companies use public
utility poles and other public spaces to run their lines. In order to limit the
number of utility lines strung in a given area, government bodies, such as
cities and counties, have limited cable television operators to one or two in
each region.46 And because the number of cable operators is limited, the
government saw fit to regulate how cable operators allocate their channels.
Federal regulations specify that cable operators must allocate between 10 and
15 percent of their channels to programmers who are not affiliated with the
cable operator.47 This regulation was created specifically to promote
competition in programming and diversity in information sources.48 In addition,
the federal government gives franchising authorities, such as cities, the power
to require cable operators to designate channels for public, educational or
governmental use. Cable operators are not allowed to exercise editorial control
over programming on those channels.49 And finally, cable operators are required
to carry qualified non-commercial, educational television stations and at least
three local television stations.50
Turner Broadcasting System challenged the regulations requiring cable operators
to carry local and non-commercial, educational television stations, but the U.S.
District Court in the District of Columbia said they do not violate cable
operators' First Amendment rights. In its decision, the court placed great
emphasis on the fact that competition from cable had placed local broadcast
stations in economic jeopardy. It also somewhat side-stepped the issue of
freedom of speech. The court's opinion said:
"This Court is of the opinion that, in enacting the 1992 Cable Act, Congress
employed its regulatory powers over the economy to impose order upon a market in
dysfunction, but a market in a commercial commodity never the less; not a market
in "speech." The commodity Congress undertook to regulate is the means of
delivery of video signals to individual receivers. It is not the information the
video signals may be used to impart."51
The U.S. District Court in Northern California, however, did say channel
allocation requirements can violate cable operators' rights.52 The City of Palo
Alto required cable operators to provide two government channels, three public
and education channels, and eight leased channels to unaffiliated programmers.
Noting that such regulations would violate the First Amendment if they were
applied to newspapers, the court said:
"First, forcing a speaker to communicate the views of another undoubtedly
impacts the content of the speech of the primary speaker. In the case of the
traditional press, and in this Court's opinion CTV operators, this impact is
inconsistent with the principles of the first amendment. See id. The Cities
cannot deny that PEG channels, which are directly or indirectly controlled by
city government, could very well provide a conduit for criticism of the CTV
operator."53 (footnote omitted)
It went on to say:
"Admittedly, the access channels provide other cable speakers regular and
constant access that is not necessarily dependent on the content of any
franchisee's speech. The content sought to be cablecast by the access users,
however, will be influenced by what the franchise cablecasts (why cablecast
programming that is already on another channel?), and the reverse is also
certain to be true: the material on the access channels will influence what the
franchisee presents on its channels."54
The federal regulations allow cable operators to retain control over some of
their channels, which keeps them from becoming common carriers. But the district
courts disagree on whether or not the access requirements interfere with the
cable operators' own speech. The U.S. District Court in the District of Columbia
said the access requirements do not interfere with cable operators' speech and
only foster competition among cable and television programmers. The U.S.
District Court in Northern California clearly disagreed, saying programmers
could not help influencing others. This provides an interesting conflict when
applied to computer networks. With ever-improving technology, online providers
will be able to provide access to nearly anyone who wants it, plus transmit
their own material. In this instance, the District of Columbia court would say
that access requirements will not hurt online providers and will provide the
benefit of additional voices. But the Northern California court would say that
each person an online provider allows access will influence the messages of
other users. If one agrees with the Northern California court's view, one must
then ask if the additional users who gain access by government order inhibit or
contribute to the public discussion. Does their sending of messages inhibit
others from sending? Or does the addition of their messages enrich the material
that was already available?
Some people who clearly think the more speakers, the better the discussion have
proposed that online providers become common carriers.55 Common carriers, such
as telephone companies, carry all messages from all customers as long as they
pay their bills. Congress, however, has not imposed common carrier status on
communications mediums that provide news, educational material or entertainment
programs. Instead, common carrier status has been limited to the mail, telephone
and telegraph_mediums which provide vehicles for others' messages.
In 1979, the U.S. Supreme Court struck down Federal Communications Commission
regulations that required cable operators to make channels available to the
public, educational institutions and bodies of the local government. The court
said the regulations wrongly imposed common carrier status on cable operators.
In the court's opinion, Justice Byron White noted that a common carrier
provision originally in the Communications Act of 1934 had been deleted before
the act was passed. He said: "The provision's background manifests a
congressional belief that the intrusion worked by such regulation on the
journalistic integrity of broadcasters would overshadow any benefits associated
with the resulting public access."56
The court's decision did not bar Congress from imposing common carrier status
on cable operators if legislators saw fit. It merely said the Federal
Communications Commission does not have the power to do so. Thus, Congress could
make online providers act as common carriers. However, it seems unlikely that
legislators would do so when they have avoided this option with other comparable
While the courts may look at speech rights in older mediums for guidance in
solving questions of First Amendment rights on the information superhighway, it
seems unlikely that they will be able to adopt any regulatory model verbatim.
The information superhighway is unlike any medium people have had access to
previously. Like the telephone, it has the potential to carry messages from
anyone to anyone. But it also has the potential to carry messages from anyone to
everyone. Where there has been only a limited number of broadcasters and
publishers, there can now be an infinite number.
But universal access is not cheap. The government has had to subsidize
telephone service in some areas to approach universal service in that medium. It
will not do the same thing with the information superhighway. The Clinton
administration has said it expects the information superhighway to be built by
private investors, and last year, the National Science Foundation, which had
maintained the Internet's backbone, announced that it would turn the network
over to private companies.57
With the advent of privatization, the issue of access becomes more complicated.
Few people can afford their own Internet connection. Unless their job or school
provides access, most users will have to connect through a private service, such
as Prodigy or America Online. Therefore, a free speech policy that will address
future conditions will have to give consideration to people's right to speak in
a medium owned by others. Historically, the government's position on this issue
has been one of laissez faire. Newspaper owners have always had the right to
reject submissions. In the past decade, broadcasters have been given more
control in this area. Even booksellers and libraries have the right to not carry
certain works. It seems that the courts_and legislators if they establish a
policy_must give some weight to these precedents.
However, as strong as the tradition of free enterprise is, the nation also has
a tradition of free speech and public participation in issues of importance.
Granted, free speech rights have been impinged upon during certain points in our
nation's history; these rights also have been strengthened and broadened to
include more areas of speech in the post-World War II era. And granted, public
participation in the discussion of political and social problems has withered in
the late 20th century; the growing computer network with its promise of
universal access may help solve that problem.
The balance between free enterprise and free speech is an uncertain one. In
Technologies of Freedom, Ithiel de Sola Pool laments the government's
willingness to sacrifice open competition among electronic-media owners in order
to preserve free speech. In the end, this policy backfired by slowing the
development of communications technologies and fostering monopolies. For
example, Congress began regulating broadcasting in the 1920s because too many
broadcasters were clogging up the spectrum with their transmissions. Messages
got lost in the mess. But Pool says while frequency scarcity was used to justify
regulation of broadcasting, frequency scarcity only existed because companies
were not forced by competition to develop equipment that used the spectrum
efficiently. With the more efficient equipment that now exists, frequencies are
plentiful.58 According to Pool, open competition is the best way for
communication to grow.
In the 12 years since the publishing of Technologies of Freedom, the government
has moved more toward the policy Pool advocated. Congress, the Federal
Communications Commission and the courts have moved away from regulation,
allowing media owners more say in what messages they carry.
The courts in particular have been reluctant to interfere with the editorial
control of media managers. This reluctance stems from the First Amendment's
application to newspapers. The government is forbidden from censoring
newspapers. It is also forbidden from mandating content. The U.S. Supreme Court
has been very clear in stating its belief that editing should be left to
editors. In Miami Herald Publishing Co. v. Tornillo, it said: "A responsible
press is an undoubtedly desirable goal, but press responsibility is not mandated
by the Constitution and like many other virtues it cannot be legislated."59
In the past two decades, the U.S. Supreme Court has extended its protection of
editors' control to electronic communication. Broadcasters now exercise almost
complete editorial control, and cable operators have more control over the use
of their channels. If online providers can show that they have an editorial
function, particularly one akin to that of newspaper journalists, courts
probably will be reluctant to second-guess them and regulate their content.
Also, courts have shied away from making private individuals promote others'
speech. When individuals_or companies_allow others' messages in their forum,
they run the risk of being associated with those messages. Courts have said that
forcing this association is a violation of the property owners' rights. In 1977,
the U.S. Supreme Court said New Hampshire could not require its citizens to
carry license plates bearing the message "Live Free or Die" on their cars. In
the court's opinion, Chief Justice Warren Burger said:
"...we are faced with a state measure which forces an individual as part of his
daily life_indeed constantly while his automobile is in public view_to be an
instrument for fostering public adherence to an ideological point of view he
finds unacceptable. In doing so, the state 'invades the sphere of intellect and
spirit which it is the purpose of the First Amendment to our Constitution to
reserve from all official control.'"60 (citation omitted)
In another case, in which a privately-held utility company was ordered to
include notices from a consumer protection group in envelopes with customers'
utility bills, the U.S. Supreme Court said the order violated the utility
company's First Amendment rights even though the company could put a disclaimer
on the notices.61 The inclusion of the notices still forces the utility company
to associate with them, the court said.
Online providers can make a good argument that they will be associated with the
messages of any user to whom they give access. More and more novice users are
subscribing to online services, and these users may have difficulty
distinguishing what messages were posted by the online provider, what messages
were generated by contractors who create text and other material for online
providers, and what messages came from other subscribers. Already, many users
get confused about what host computer a message is posted on, and as the seams
between online providers and the Internet become less visible, users may find it
more and more difficult to determine a message's origin. Thus, subscribers to a
particular online provider may associate the messages they read with that
provider, making the content of those messages a concern for the company.
With these two considerations in mind, it seems unlikely that the government
will force online providers to make universal access available. More likely, the
government will encourage the growth of multiple providers so that a person
turned away by one can seek access through another. This may disappoint people
who think the information superhighway should be open to all, but it is a policy
in keeping with recent judicial interpretation of the First Amendment. And if
printing presses go the way of Alexander Meiklejohn's admired town meetings,
citizens may be thankful the First Amendment has been applied strictly to
electronic mediums. As Pool said:
"Networked computers will be the printing presses of the twenty-first century.
If they are not free of public control, the continued application of
constitutional immunities to nonelectronic mechanical presses, lecture halls,
and man-carried sheets of paper may become no more than a quaint archaism, a
sort of Hyde Park Corner where a few eccentrics can gather while the major
policy debates take place elsewhere."62
1Alexander Meiklejohn, Political Freedom; the constitutional powers of the
people, (New York: Harper & Brothers, Publishers, 1960), p. 26.
2376 U.S. 254 (1964), at 282. See also, Harry Kalven Jr., The New York Times
Case: A Note On "The Central Meaning of The First Amendment," Supreme Court
Review 191 (1964).
3Bigelow v. Virginia ,421 U.S. 809 (1975); and Virginia State Board of Pharmacy
v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748 (1976).
4Pope v. Illinois, 107 S.Ct. 1918 (1987). Also, Penthouse v. McAuliffe, 610 F.2d
5Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, Duke Law Journal
1, 38 (February 1984).
6William Grimes, "Computer as a Cultural Tool: Chatter Mounts on Every Topic,"
New York Times, 1 December 1992, sec. C, p. 13.
7Roger Karraker, "D.C. embraces 'electronic democracy:' White House, Congress
use e-mail for citizen feedback," MacWeek, 21 June 1993, 10; Ellis Booker and
Mitch Betts, "Democracy goes on-line," Computerworld, 31 October 1994, 1; Also,
Marianne Taylor, "Users say computer network is muzzling their give-and-take,"
Chicago Tribune, 7 January 1991, Business section, p. 1.
8Peter H. Lewis, "America Online says users of service exceed 1 million," New
York Times, 17 August 1994, sec. D, p. 4(L); Amy Harmon, "At 25, Internet
readies move into free market," Los Angeles Times, 5 September 1994, sec. A, p.
9Taylor, "Users say computer network is muzzling their give-and-take," 4.
10William M. Bulkeley, "Censorship Fights Heat Up on Academic Networks," Wall
Street Journal, 24 May 1993, sec. B, p. 1; Mike Godwin, "Solo Contendere: Free
Speech vs. Sex Discrimination Online," Internet World, February 1995, 90-93.
11Peter H. Lewis, "Censorship growing on networks of cyberspace," Dallas Morning
News, 29 June 1994, sec. D, p. 2(F).
12Evelyn Richards, "Dissident Prodigy Users Cut Off From Network," Washington
Post, 3 November 1990, sec. C, p. 1.
13Taylor, "Users say computer network is muzzling their give-and-take," 1.
15Allucquere Rosanne Stone, "Will the Real Body Please Stand Up?" in Cyberspace:
First Steps, ed. Michael L. Benedikt (Boston: MIT Press, 1991), p. 90
16Vint Cerf, interview by Steve Cisler, Wired, December 1994, 154; Joan Konner,
"It's the Content, Stupid," Columbia Journalism Review, November/December 1994,
17Stone, p. 91.
18Cubby v. Compuserve, 776 F. Supp. 135 (S.D.N.Y. 1991)
21Edward V. DiLello, Functional Equivalency and It's Application to Freedom of
Speech on Computer Bulletin Boards, 26(2) Columbia Journal of Law and Social
Problems 199, 213-14 (Winter 1993).
22Lewis, "Censorship growing on networks of cyberspace," 2.
23Cubby v. CompuServe, 140.
25Geoffrey Moore, "The First Amendment Is Safe at Prodigy," New York Times, 16
December 1990, sec. 3, p. 13.
26Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).
27Jerry Berman and Marc Rotenberg, "Free Speech in an Electronic Age," New York
Times, 6 January 1991, Business section, p. 13.
28Don Pember, Mass Media Law, 6th ed., (Dubuque, IA: WCB Brown & Benchmark
Publishers, 1993), 100.
29Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).
30Marsh v. Alabama, 326 U.S. 501 (1946).
31Amalgamated Food Employees v. Logan Valley Plaza, 318.
33Lloyd Corp. v. Tanner, 407 U.S. 551, 563 (1972).
36Hudgens v. National Labor Relations Board, 425 U.S. 507, 513 (1976).
38Pruneyard Shopping Center v. Robins, 447 U.S. 74, 83 (1980).
40Fraser v. Bethel School District, 106 S.Ct. 3159 (1986); Tinker v. Des Moines
School District, 393 U.S. 503 (1969).
41Al Gore, "Remarks by Vice President Al Gore," speech prepared for the National
Press Club, Washington, D.C., 21 December 1993, in Taking Sides; clashing views
on controversial issues in mass media and society, 3rd ed., eds. Alison
Alexander and Janice Hanson (Guilford, Conn.: Dushkin Publishing Group, Inc.,
42National Broadcasting Co. v. U.S., 319 U.S. 190, 226 (1943).
43Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389 (1969).
44Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C.Cir.
45Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir. 1989).
46Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986).
47Cable Communications Policy Act of 1984, U.S. Code, v. 47, secs. 531-2 (1994).
50Cable Television Act of 1992, U.S. Code, v. 47, sec. 534 (1994).
51Turner Broadcasting System, Inc. v. FCC, 819 F. Supp. 32, 40 (D.D.C. 1993).
52Century Federal, Inc. v. City of Palo Alto, 710 F. Supp. 1552 (N.D.Cal. 1987).
55Steve Lohr, "The Nation; Who will control the digital flow?" New York Times,
17 October 1993, sec. 4, p. 1(F).
56FCC v. Midwest Video Corp., 440 U.S. 689, 705 (1979).
57Harmon, "At 25, the Internet readies move into free market," 1.
58Ithiel de Sola Pool, Technologies of Freedom, (Cambridge, MA: Belknap Press of
Harvard University Press, 1983), pp. 152-153.
59Miami Herald Publishing Co. v. Tornillo, 256.
60Wooley v. Maynard, 430 U.S. 705, 715 (1977).
61Pacific Gas and Electric Co. v. Public Utilities Commission, 475 U.S. 1
62Pool, p. 225.