Free-speech reigns online for now, but experts wary of controls

Tuesday, March 27, 2001

Free expression prevails online for now, but the mute button may be only one click away.

That message became the mantra at a daylong First Amendment Online conference last week, as journalists, lawyers and educators dissected the many ways that freedom of speech and the press both flourish and founder on the Net.

Co-sponsored by the First Amendment Center and the Online News Association, the March 23 event at the First Amendment Center focused on panels discussing such critical issues as filters, content control, linking and privacy. It also featured a stirring keynote speech by Li Lu, as well as demonstrations of developing newsgathering technologies that will allow journalists to better involve readers or viewers into news stories.

Host Adam Clayton Powell III, Freedom Forum vice president/technology and programs, keyed into the overriding concern in his opening remarks: “The First Amendment is a local ordinance in cyberspace,” he said, “and we find that the Internet is every day reminding us of just how local it is.”

The Supreme Court’s 1997 decision in Reno v. ACLU, which gave constitutional protection to online free speech, was applauded again by the First Amendment lawyers at the conference even as they repeatedly warned of uncertainty ahead.

“This is literally the first time the courts in general have looked at a new medium and immediately given full protection,” noted Robert Corn-Revere, a First Amendment expert with the Washington, D.C., law firm Hogan and Hartson.

ONA member Jonathan Hart, of the Washington, D.C., law firm Dow, Lohnes and Albertson, put the court’s ruling in perspective.

“It was a decision we all waited for, but it was basically a no-brainer, because none of the rationales that applied to restricting speech in the broadcast media apply to the Internet,” he said.

“I think the only worry among lawyers who follow these things was the question of whether ‘nine old people who didn’t get it’ on the Supreme Court were actually going to be able to figure this out,” he said. With Reno v. ACLU, “all fears on that subject were put to rest.”

But it’s not over yet, he and Corn-Revere added.

Like radio, TV and cable, the Internet faces numerous challenges, and Corn-Revere predicted that “everyone’s going up to the same level of regulation or everyone comes down.”

Omar Wasow, executive director of, agreed.

“It is sort of an interesting moment right now. Newspapers as the oldest mass media and the Internet as the newest mass media are accorded [more protections] than radio and television,” he noted. But “inevitably, sadly,” he added, the Internet “will become more regulated.”

“My fear is that, on the one hand, the explosion of variety will be diminished,” Wasow said. “On the other, there’s a whole generation growing up to be First Amendment believers because of the Net, not the traditional media.”

The next generation’s role echoed in the concerns of journalist and author Graeme Browning, who called the Internet “potentially the greatest communication tool the world has ever seen if we use it correctly … use it interactively.”

To that generation, “the Internet is like breathing, it’s like picking up the telephone is to those of us who are older,” she said.

“I have a 12-year-old daughter who has been on the Internet ever since she was three years old,” she said. “You can go downstairs … she has the TV on, the computer on and the stereo playing in the background … she can multitask in a way that no other generation has been able to.”

Which is why issues like content control trouble Browning.

“The Internet, as we all know, is a many-to-many communications tool,” she explained. “Right now in politics … it is being used just like television or radio — it’s a one-to-many medium.”

Campaigns, political consultants, members of Congress and state legislators, she said, “are using it to get information out … and they either don’t know how to use interactivity or, more importantly, don’t want to be interactive.”

Add to that “the ability of large corporations to not only control the content but to mold it to their world view,” she said. That, she said, “is very disturbing.”

Freedom Forum Ombudsman Paul McMasters pointed out a number of explicit and implicit controls on Net content now, ranging from access control to privacy regulations.

As example, he said, there is such “fear by those in the national security community of the use of the Internet, or information on the Internet, that it forced the Environmental Protection Agency last year to close down its plans to provide Internet access to worst-case scenario information about 33,000 chemical facilities across the country.”

Brant Houston, executive director of Investigative Reporters and Editors, took McMasters’ thought one step further.

“A lot of things are being closed down for public officials, politicians and bureaucrats to avoid being scrutinized,” he said.

“They’re using the privacy fear to do this,” Houston added. “And every time our ability to scrutinize is cut back, the public suffers.”

Journalists, he warned, need to learn more about electronic information so they can report better on these access issues. “What’s interesting is that we’re being used as a tool to close ourselves down,” he noted.

Slowing down the information flow through filtering was a more-immediate concern for others.

McMasters set the stage with a “nostalgic” reminder of the Internet’s early days — only a few years ago.

Back then, he said, “we all were energized by the promise of a wired world — one in which we would be smarter, more connected as a community, more empowered. At least, that was the dream.

“Today, if you listen to policy-makers, pundits and prognisticators, the World Wide Web is little more than a high-tech delivery system for smut, hate, spam and identity theft.”

McMasters said that point of view led to the Children’s Internet Protection Act, seen by many as Congress’ latest attempt to censor the Internet.

ACLU staff attorney Ann Beeson talked of the ACLU’s newest lawsuit against CIPA. The suit, on behalf of 25 plaintiffs ranging from libraries to Web sites, was filed March 21 in Philadelphia district court.

Beeson, a key player in the Internet free-speech fight, noted significant drawbacks to the law, which mandates the use of blocking programs on Internet-access terminals in libraries and schools that receive federal funds.

In public libraries, “these programs must now be used not just by minors — don’t be fooled by the title of the law — but by every adult that enters a public library and uses the Internet [there]“, she said. “And that is true whether the federal government paid for one computer or for 10. All 10 must have the blocking program.”

There is a ” fundamental flaw in thinking that technology can differentiate between speech protected by the Constitution and other speech,” she added.

Perhaps the most intriguing subject of the day for journalists dealt with linking, and its ability to blur the lines of legitimacy and originality.

Stephen Miller, assistant to the technology editor at The New York Times, recalled that when he wrote for the Times Web site, “It was just a joy to write a sentence without having to stop in the middle and explain some technical term [on] first reference.

“I just put a link in … . You can click on it. That becomes an enormously freeing aspect for reporters,” he said.

On the other hand, he added, “people who are stealing content, who are linking to another site … and using that data without … attribution … that’s the kind of thing that’s very troubling to me.”

Elizabeth Osder of the Online News Association viewed the issue with a touch of humor.

“I think this sort of obsession that ‘I link therefore I am’ — that people think that linking and passing you off to some place is going to make you a credible publication — is really sort of something we saw in the ancient days of ’94 to ’98,” she said.

“Going forward, there is a question about … the cost of creating original content, and people are successful at creating great guides that legitimately send you off to other places,” Osder noted, citing the Poynter Institute and its link to Jim Romenesko’s media news site as example.

But more important, she said, “People are still looking for trusted sources, and I don’t think that we’re doing anything online at the end of the day that wouldn’t have been egregious in print as well.”

With all the discussion about openness, however, it was, in the end, a question about privacy that again reminded conference participants of the fragility of free expression.

Privacy on the Net, particularly involving personal information collected in e-commerce, remains a source of concern, though Hart said he had been basically reassured by legal restraints now in place.

“Right now the vast majority of highly trafficked Web sites have privacy policies up, and there is existing law … that is sufficient to police [Web sites'] adherence to their own privacy policies,” he said.

But what about the billions of dollars at stake for the user lists that have become available because of the collapsing dot-com industry?

“I agree that there are problems with dot-coms going belly-up and with situations where the relationship between the user and the Web site wasn’t quite clear at the time that information was collected,” Hart replied.

“But I think we all ought to keep in mind that we are …sort of in the Howdy Doody days of the Internet … the earliest days of this medium,” he added.

“If we let the legislature loose to start legislating based on the amount of history we’ve got right now, we’ll be living with the consequences of that legislation for a very long time. And I think we’ll regret [that].”

“Courts sort of watch slowly and let issues percolate up,” Hart noted. “Legislatures tend to move quickly, and that frightens me.”

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