Why we should resist efforts to rein in wild, wild Web

Tuesday, February 2, 1999

As someone who was too young to “experience” the 1960s, I’ve always been a little jealous of the baby boomers. For a long time, I thought I’d never feel the excitement of social anarchy, political revolution and free love.

Then came the Internet.

While it may not be as wild as Woodstock or as violent as Vietnam, the free-wheeling, do-it-now, worry-about-it-later nature of the Internet appears to be provoking many of the same reactions that drugs, bell bottoms and promiscuity did 30 years ago: parents fear it, legislators want to regulate it and businesses are trying to profit from it.

Unlike the ’60s, however, the reactions to the Internet are almost exclusively reactions to speech – and, therefore, reactions that directly threaten First Amendment freedoms. Society’s response to these reactions will indelibly shape the futures of both the Internet and freedom of expression.

In just one two-week period in January, for example, the struggle for control of the Internet played out on several fronts. In Montana, a state legislator introduced a bill that would criminalize use of a computer to “harass” or “annoy” another person. In Philadelphia, the American Civil Liberties Union and the Justice Department battled over the constitutionality of the Child Online Protection Act, which criminalizes any commercial communication over the Internet that is “harmful to minors.” In Washington, D.C., Sens. John McCain, R-Ariz. and Ernest Hollings, R-S.C., introduced the Children’s Internet Protection Act, which would require that public schools and libraries receiving federal funds for Internet hook-ups install filtering software.

Also in Washington, parties readied for trial in a case challenging whether the Commodities Future Trading Commission can require anyone who receives compensation for publishing online information about commodities or futures trading to register with the government as a “commodity trading adviser.” In Portland, Ore., jurors in a $200 million trial were asked to decide whether a Web site identifying abortion providers had illegally incited violence against the doctors. In St. Louis, the local archdiocese successfully sued a Web site owner who used “www.papalvisit1999.com” as the address for a site promoting pornography.

Of course, no one wants to be harassed. And reasonable people agree that children should be shielded from pornography. Unsavory investment advisers should not be permitted to prey upon unsophisticated investors. Abortion providers should not be killed or threatened. Nor should fraud and deception be avenues to commercial success.

The truth of these basic moral statements is not at issue. Rather the question must be whether their truth justifies restrictions on free speech.

Just as hippie behavior in the ’60s cannot be fairly evaluated without considering the standards of the time, the propriety of Internet regulation cannot be judged independent of the medium’s characteristics. The Internet is not like newspapers, magazines or broadcast stations. Online publishers do not need expensive printing presses, extensive distribution systems or licenses. Nor is Internet speech – which can reach millions of readers worldwide in a matter of seconds and can be stored for decades in accessible computer memories — like speech in a public park.

Perhaps the most distinctive characteristic of Internet speech, however, is its disorder by design. The World Wide Web was intentionally created without a mechanism for centralized control. The technology upon which it is based changes almost constantly, like a mutating virus defying attempts to restrict its growth. No one is in charge of the Internet or ultimately responsible for its content. Outer space, as it turns out, was not the final frontier.

While such disorder alarms those who wish to regulate Internet speech, it comes as no surprise to those who venture online. The Montana legislator seeking to outlaw harassing Internet speech pointed not to harassed constituents but only to similar laws in other states. The crackdown against Web sites featuring commodities advice was not instigated by disgruntled consumers but by a government agency. The push for filtering software came not from the local schools and libraries but from the federal government. With the possible exception of children, almost all who navigate the Web do so fully aware of the Internet’s possibilities and problems.

Another aspect of the Internet’s designed disorder is its gated entry. While the Internet is frequently described as the first true marketplace of ideas (a description near and dear to the hearts of those who believe in core First Amendment theory), this marketplace is not open to everyone; passersby cannot stumble into it inadvertently. For the moment at least, entry into this marketplace requires both the necessary technology and the desire to participate. Searches and links undoubtedly can expose Internet users to unanticipated and unpleasant speech, but those who enter into this marketplace (and who allow their children to enter into it) must accept at least some of the risk of doing so.

The risks of over-regulating the Internet are much greater than the risks of not regulating it enough, especially in these early years of its development. In most cases, advances in technology and economic self-interest will provide whatever self-regulation is necessary to protect Internet users. Just as consumer apprehension about sending credit card information over the Web resulted in the development of more secure transmissions, parental interest in effective filtering software will eventually obviate the need for overly broad legislation against pornography. As chaotic as the Internet may be, legislators and judges must have enough faith in the American people to let the online world evolve on its own.

Given this chance, the Internet, like the baby boomers, will grow and mature, leaving many of its most threatening aspects behind.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.