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TWP Ups Net Freedom

The Washington Post, October 27, 1995

Freedom of Net Speech (Editorial)

Is speech on the Internet like speech in a public square,
or is it more like speech in a privately owned mall,
where leafleters and demonstrators need permission? And
what about universities, where students using university
accounts for e-mail and other messages may find
themselves subjected to disciplinary rules? The latter
problem occurred most recently at Virginia Tech, which
has come under challenge for disciplining a student who
sent a letter described as abusive to another student.

The difficulty of framing such questions or even of
defining the terms they're made up of (Is cyberspace
really a "space," or just the ability of a lot of
machines to talk to one another?) should be ample
illustration of why millions of Internet users are still
sloshing around in a state of legal ambiguity. And that
ambiguity, though congenial to the anarchically inclined
folks who have been in cyberspace since its
not-very-remote beginnings, can't be sustained much
longer as millions of users pile into cyberspace through
commercial, university-owned and workplace hookups. The
providers of these hookups all have an interest in what
their users "say" to other users once they're on line,
but the interests vary. Some providers are afraid -- with
cause -- that they may be liable for pirated, libelous or
other lawbreaking material posted on their accounts, or
(depending on the outcome of assorted legislation) for
transmitting pornographic or indecent material to minors.
Universities have another set of motivations that go
beyond fear of legal vulnerability and that have led many
-- including Virginia Tech -- to institute student
conduct policies that can be used to curb even
non-cyberspace speech.

Virginia Tech authorities say the existing student life
policy prohibits "words or acts" that constitute "abusive
conduct" that "demeans, intimidates, threatens or
otherwise interferes with another person's rightful
actions or comfort," whether on line or off. As with the
notorious "hate speech" regulations at many campuses,
this is a dangerously broad category, though the lines
between interfering with someone's comfort and actually
threatening him are probably drawable by a court.

Technologically oriented civil liberties groups such as
the Electronic Frontier Foundation have been arguing for
some time that if First Amendment rights in cyberspace
aren't codified and nailed down early, tendencies toward
restraint will multiply to cover more and more of the new
"sectors," and this will greatly reduce the potential of
electronic communication both socially and commercially.
An even more cold-eyed pragmatic argument is that speech
restrictions, notoriously hard to enforce in the real
world, are even more so in the virtual one: In one
formulation much repeated by programmers, the Internet
"interprets censorship as a malfunction and detours
around it." Add this to the practical impossibility of
commercial owners monitoring every message sent via
cyberspace, and you have enforcement nightmares. There
are better and broader arguments, though, for being
skeptical of any efforts to restrict the content of
cyberspace speech in ways that go beyond existing and
permitted controls on real-world speech, whether on child
pornography, stalking, libel or the rest.

Universities have some wiggle room here, but for the same
reason university "hate speech" codes or restrictions on
what professors may say in class are a terrible idea,
it's bad practice to restrict student speech on-line.
Free speech is good for the Internet for the same reasons
it's good for the real world.