Given the topics that we've covered, and given the political differences that there are among the three of us, it is probably surprising that we haven't come to this point before. But it is impossible for three law professors to talk about first amendment law for long, without one of them finding a reason to dissent.
And so one of us now has. I disagree with my colleagues about how the first amendment will apply to annoying/ offensive/harassing speech in cyberspace. And rather than trying to write a lesson that compromises our differences, we thought it best if we simply state the differences in the form of this dissent. I'll state my differences briefly, but I hope helpfully. We'll just have to wait to see which of us The law of the first amendment depends upon the technologies that it regulates. It develops, given the technologies as they are. As technologies have changed, so too has the law changed. And there is little reason to expect this change to stop just now.
Indeed, there are lots of reasons to expect it will change in ways we can't yet see. This is not to say that we shouldn't try to say what the law will be. (Some of us are constitutionally incapable, as it were, of keeping our opinions to ourselves.) But it does mean that we should be hesitant before assuming that the structures that were built to protect free speech in one technology will be carried over directly to another.
On the whole, our posts have tried to be sensitive to this change. But in the last two posts, we've found real differences. The differences can be summarized like this: While two of us view cyberspace "spaces" (such as newsgroups) as public spaces, or best analogized to public spaces, I am not so sure that this is the correct first amendment model. And while two of us view speech in these cyberspace spaces as likely to be about matters of public concern, I think it possible that courts will see speech in these spaces as about matters of private concern.
The difference these differences mean comes to this: If these are public spaces, or if the speech is of public concern, then the government's ability to regulate will be severely limited - where "regulation" here means protect individuals from harmful or destructive speech (such as harassment, or hate speech), and where "government" means any entity of government, whether the federal government, or a town council; whether Congress or a university. But if these are private spaces, or are considered to raise issues of only private concern, then the constitutional limitations on the government's power to regulate are less. (How much less is a whole other debate. Two of us again think not much less, but I think much less.) The bottom line is this: If the limits on governmental regulation are less, then the government could regulate to protect against annoying or harassing speech more.
I am not as sure as my colleagues that the space will be viewed as public, or as raising matters of public concern, and I think this for a couple of reasons: First, these cyberspace "spaces" are in important ways something new. They are of course in *some* ways like public places, but they are also in *some* ways not. They are, or can be, like street corners, where public debate must be given broad protection; or they are, or can be, like private clubs, or living rooms, where individuals are able, ordinarily, to protect themselves against aggressive sorts. How the court considers such spaces will be a *choice* for the Court to make, not simply a *fact* for the Court to report. This choice should turn not on arguments about analogy, but upon how speech would best be advanced in this new space.
Second, in many of these places, protecting against harmful speech is essential to preserving these spaces for constructive speech. (Remember IBEX from the beginning of the summer? See an earlier post at /cyberlaw/libe05.html) While in real space, we ordinarily punish and control the disruptive by simply excluding them, or punishing them for their acts, in cyberspace, the only acts are words. If cyberspace can't, in places, protect itself against behavior it doesn't want, then it won't be a place that attracts many of the sorts of people we want to attract.
The next post will continue this dissent and propose some answers and predictions to these dilemmas.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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