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Wright, Harley --- "Law, Convergence and Communicative Values on the Net" [1996] JlLawInfoSci 5; (1996) 7(1) Journal of Law, Information and Science 54

Law, Convergence and Communicative Values on the Net

HARLEY WRIGHT

Abstract

The rise of the Internet as a serious medium of communication threatens the autonomy of a wide range of communicative activities. Increasingly conversation, public speaking, mail, radio, research and even television, are able to be most conveniently conducted through the medium of the Net. The process of technical convergence calls into question the current regulatory structure that surrounds communicative activities. Technical convergence has led to calls for ‘legal convergence’. In this essay I argue that calls for legal convergence overstate the degree to which current regulatory structures are based on technical difference. I suggest that current laws are based on ‘communicative values’ such as access and user control. These values may vary in importance according to the type of communicative activity being undertaken, but will remain relatively constant for each type of activity regardless of the technology being utilised.

Introduction

Communication is a defining aspect of a society. In the US the First Amendment - the constitutional guarantee of ‘free speech’ - has been described as the central article of faith in the civic religion of America.[1] Recent decisions of the High Court of Australia indicate that the functioning of representative democracy in this country depends upon a free discussion of political matters. Other areas of communication, by their very nature - television broadcasting for example - demand a prominent place in the public’s imagination. Still others, such as post and telephone services, are no less important because they have become so ingrained in the national psyche as to be taken for granted. The potential of the Net to cater for all of these activities calls the current regulatory regimes into question.

In the first part of this essay I examine the legal models that govern communicative activity in Australia. The second section investigates the challenges to this legal structure from the Net. The final part explores the options for regulation of communication in the future - with a particular focus on the ‘technical convergence = legal convergence’ argument.

1. The Regulation of Communication in Australia

In his seminal book Ithiel de Sola Pool points out that “for all free nations”[2] there is a trifurcated regulatory regime of communication: print, common carrier and broadcast.[3] Although there are some communicative activities which fall outside, or ignore the boundaries between these legal models, the aim of the discussion which follows is not to give an exhaustive account of communications regulation in Australia but rather to sketch the broad outlines of the different regulatory models with a view to identifying the reasons for the differences between them.

(a) Broadcasting

Unlike printers and publishers, broadcasters must obtain a licence from the government and comply with its conditions. The content of free to air broadcasting is regulated from the perspective of children, Australian content, and amount of advertising.[4]

Regulation of broadcasting is based ostensibly on the lack of spectrum[5] - although Pool (and others) point out that technological advances make it increasingly less convincing. Other reasons for the regulation of the broadcast media are because “it is regarded as much more persuasive and ubiquitous ... [and is] readily accessible to nearly all people of all ages”.[6] Subscription broadcasting and narrowcasting are allowed a lower level of government intervention and are distinguished from free to air services on the basis that there is consumer consent, discretion and control over which services they purchase.[7]

Although courts and politicians in both Australia and the US[8] have struggled with the terms ‘pervasive’ and ‘persuasive’, the neatest summary of the communicative value to be protected here is identified by the Harvard Law Review Association as being ‘user control’.[9]

(b) Common Carriers

The common carrier model of regulation also requires those who deliver Post and telephone services to be approved by the government. Common carriers are required to satisfy what has been called in Australia a ‘universal service obligation’ - meaning that everyone should have equal access to these services.[10] Unlike broadcasters, privacy concerns mean that "choice of the specific intelligence to be transmitted is ... the sole responsibility or prerogative of the subscriber and not the carrier."[11]

Regulation of common carriers is based on twin concerns that (1) access to the network of twisted copper pairs/ post offices forms the basis for a natural monopoly; and (2) that everyone has a right to access post and telephone services.

(c) Print

In stark contrast to the US, the Bill of Rights-less Australia has traditionally protected freedom of the press (and free speech generally) to the extent that it wasn’t prohibited.[12] However, even without a First Amendment very little Australian legislation regulates who may publish what. There are no licences in any substantive sense,[13] and regulation of content is limited that which is obscene or violent.[14] In comparison to the broadcast media these restrictions are minimal. Commenting in the US, Pool states “[i]n the domain of print ... the First Amendment truly governs”.[15]

The intellectual heritage justifying ‘freedom of the press’ and its close ally ‘freedom of speech’ occupies one of the most prominent and distinguished places in liberal political theory. First articulated in the works of Mill and Milton, it revolves around the idea that the ‘search for truth’ or the ‘functioning of democracy’ is best accomplished in an unregulated ‘marketplace of ideas’. It is assumed that all have access to the free speech market.

Critics point out that the costs of printing presses and distribution systems are such that only the largest players have real access to the printed speech market.[16] Michael Chesterman has noted “that the ‘marketplace’ nowadays is simply too heavily dominated by monopoly players to produce the conflict of perceptions and the variety of investigative activity that might reliably generate ‘the truth’.”[17] The traditional liberal view of free speech relies (in my view) on a radical separation between private and public spheres; where the power of large private players is ignored in face of an overrated governmental power to censor opinions.[18] Despite these observations, the print media in both Australia and elsewhere have successfully maintained their position of minimal regulation.

(d) The Australian Free Speech Decisions

In 1992 the High Court found that the Constitution’s vision of Australia being governed by a representative democracy meant that it was necessary to imply a limited right to free speech - a right of ‘free political discourse’.[19] These cases are being discussed outside Pool’s trifurcated model of communications regulation as they apply to both the print and broadcast media and do not slot easily into either category.

The important point about the High Court decisions is that they take an instrumental view of free speech - the Australian ‘right to political discourse’ is tied firmly to a purpose (albeit a broad one[20]) - namely to enhance the functioning of representative democracy. This is in contrast with some theories of the First Amendment which take free speech to be an end in itself.[21]

These decisions offer the best Australian articulation of why unregulated communication - free speech, is regarded as valuable. By tying free speech to democracy it is clear that the government may restrict speech which has only tangential political value, if such restrictions serve a competing public interest.[22]

From this brief review of the regulation of communication it can be discerned that government regulation is seen to be justified predominantly to maintain ‘communicative values’ such as access (common carriers), or user control (broadcasting). It is because consumers are assumed to have both access and control over the print medium that it is left unregulated. The High Court decisions in this area show that in Australia the reason for ‘no-regulation’ being the default position is because free speech is valued for its symbiotic relationship with representative democracy.

2. The promise and challenges of the Net

The hyperbole surrounding the Net potentially obscures an evaluation of its significance. The assessment in this section will be focussed upon its impact upon the rationales and values sought to be protected by the current regulatory structures.

(a) Disappearing technical distinctions

Different models of legal regulation have traditionally coincided with technical distinctions between the media. The capability of the Net to embrace almost all communicative tasks appears to dissolve these technical distinctions, demanding a reassessment of current regulatory models.

Particularly susceptible are regulations premised upon technical differences between the media. As the Nicholas Negroponte has put it “[in the past] people thought of themselves as being in the newspaper business, or movies, music and so on. But they’re really not anymore. They’re in the bit manufacturing business.”[23]

Also under threat are those that rely on technical limitations; for example, ‘spectrum scarcity’ as a basis for special regulations for broadcast media is no longer convincing as this technical constraint has been overcome.[24] In a similar vein it would be expected that regulation of telephones and post will increasingly be based on the need to ensure ‘equality of access’, rather than upon arguments that suggest telephones and post are a ‘natural monopoly’ (due to technical limitations).

(b) Improvement of the marketplace of ideas

The Net also appears to address many of the concerns of those who criticise the current state of the ‘free speech marketplace’. The Net does not require expensive printing presses and distribution systems - requirements that favour large monopoly players. Access to the Net is becoming both increasingly affordable[25] and increasingly accessible to the public[26] - allowing everyone to be their own ‘self publisher’. Volokh predicts that the information marketplace will more accessible, more diverse and less dependent upon wealth in order to get one’s speech heard.[27]

Picking the problems and limitations of the Net is a little more difficult than predicting the potential benefits. The most obvious limits are those that impinge on the identified benefits; thus Volokh comments that “the power to make one’s speech globally available isn’t the power to make it globally heard”[28] and although we will have “infinite choices”[29] the process of finding information on the Net has been compared to looking for a book in “a library where all the books have been dumped on the floor in no particular order”.[30]

Sunstein has identified two problems with the Net that impact on the Australian justification for free speech - the enhancement of deliberative democracy. The first concerns a lack of deliberation. The decreased costs of communication may lead discussion forums on the Net of a quality little better than talk back radio shows.[31] The second problem is described as ‘balkanisation and self insulation’ meaning that people will be able to screen out opinions that they are likely to disagree with. Sunstein regards confrontation with uncongenial ideas “an important democratic good; it promotes education and discussion.”[32] However, this latter argument relies on two dubious assumptions. (1) That people cannot do this already - the balkanisation/isolation argument has been levelled at both print and radio.[33] (2) That the Net will replace rather than displace other media - I think plenty of opportunities will remain for social cohesion.

The question to be asked is “What regulatory scheme will maximise the ‘communicative values’ we wish to protect while responding to challenges and opportunities of technology?”

3. What does Net mean for regulation of communication?

There is a fundamental divide in the (rapidly expanding) literature as to the appropriate response of communications policy in the face of technological change. The first group is led by the late Ithiel de Sola Pool who argued that the differences in legal treatment of print, carriers and broadcasters was premised upon technical differences between the media; differences that are rapidly been dissolved by the multidimensional capabilities of the Net. As a consequence Pool, and the many who follow him, argue that technological convergence should lead to legal convergence. The second group share many of the baseline observations made by Pool about the nature of the Net, but draw conclusions which contrast markedly; arguing that the fragmented legal treatment of different media will be intensified rather than ameliorated by the technological revolution.

Pool’s argument:

(a) Much of Pool’s impetus is gained from the view that free speech is only truly guaranteed for the print media. Electronic media, particularly the broadcast media, are (in his view) severely compromised by government regulation and there is a danger that with the increasing displacement of print by electronic media that free speech will be compromised.

As a consequence the ‘principles of the print model’ are advanced as being appropriate to the Net.[34] It is not surprising that the very limited role that government plays in the print model of regulation is attractive in a country where there is “a deep distrust of ‘government’ in all its manifestations.”[35] The only concession made to other models of communication regulation is to the ‘common carrier’ model, where it is acknowledged that governments may act to improve access to the Net.[36]

(b) Part of the attractiveness of this argument is due to its apparent ‘technological neutrality’.[37] As Krattenmaker and Powe put it “the latest advances in telecommunications provide ... the opportunity to discard the inherently silly notion that freedom of speech depends on the configuration of the speaker’s voicebox or mouth piece”.[38] While ‘technology neutral’ has been recognised as a persuasive principle in Australia,[39] in my view it does not equate to ‘technology blind’ and require homogenous legal treatment for all technology.

(c) Pool’s harshest criticism is directed at the poor justification for broadcast regulation.[40] To bolster the argument that ‘technological convergence should lead to legal convergence’, much is made of the observation that spectrum scarcity is a technologically outdated basis upon which to ground regulation of broadcasters.

The person who most prominently disagrees with these arguments is Professor Ethan Katsh. However, as his work is not structured around a refutation of the arguments put by Pool, I plan to discuss my difficulties with the above, mentioning Katsh’s thoughts where appropriate.

To start with the last point first, I see spectrum scarcity as a soft target. There is little acknowledgment that ‘user control’ is a value sought to be protected by broadcast regulations. In contrast, rather than hanging on the relatively weak peg of spectrum scarcity, Berman and Weitzner argue for the same result (no content regulation by government), but because Net allows for greater interactivity and user control, because it is technologically different to the broadcast media,[41] This approach is markedly different to Pool’s ‘technological convergence = legal convergence’.

These different approaches point to a problem with using ‘technology neutral’ as a slogan to justify homogenous legal treatment. I agree that laws should not be premised upon the vagaries of technology, but disagree with the conclusion that there can and should be one law covering ‘bit production’. Communicative values such as user control, access, privacy and deliberative democracy will be impacted differently by different technologies, even different uses of the one technology: in a private Email conversation privacy is paramount; if downloading information (or entertainment) then user control is likely to be more important. Although the desire to have a universal principle that applies to all media is understandable, its application by Pool, Powe and Krattenmaker is flawed. The relative importance communicative values, vary not with the technology used but with the communicative activity being undertaken. I would argue that regulations governing ‘E mail’ and ‘snail mail’ should have the same goals; privacy and access. In order to realise these identical goals the nuts and bolts of the law(s) may have to vary with the technology used. As Frederick Schauer has put it:

different modes of communication may create different problems and therefore require ... responses different from those developed around the older print media[42]

The problems with Pool’s arguments are due to his mistaken attempt to accommodate the many and varied communicative functions of the Net within a single metaphor[43] - that of the print model of regulation. Pool’s advocacy of the print paradigm seems odd considering that he had the insight to point out that a misconceived metaphor can become reified to the point that it becomes “an incubus on further understanding”.[44] It is at this point that the work of Katsh most starkly contrasts with Pool. Katsh argues throughout his work[45] that information technology will thoroughly transform our relationship with information - just as the printing press did when it was first invented. As law is immersed in a ‘print culture’ this change will have wide ranging and important effects on the law: the status of legal precedent,[46] of legal categories,[47] even stable notions of ‘rights’[48] will all be challenged by the new information culture. As the First Amendment deals explicitly with communicative rights it will be one of the most affected by these changes, and far from seeing these changes as a unifying force as Pool does, Katsh argues:

As problems unique to a particular technology or format surface, further fragmentation of the First Amendment doctrine will probably occur. ... [I]t is much more likely that courts will continue in this direction rather than adopt a generalized and uniform application of the First Amendment for all media.[49]

There is a further problem with the print model of communications regulation which is more ideological. The print model promulgated by Pool and his associates takes as its first premise that government must be kept from regulating content.[50] I regard the focus on ‘government action’ as distinct from ‘private action’ as theoretically suspect and dangerously so. Despite Tribe’s claim that the private/public distinction is ‘axiomatic’,[51] in my view this distinction is already obsolete in the market for printed speech[52] and is unlikely to become relevant to the Net;[53] which is really a network of (mostly private) networks. Emphasising the distinction is dangerous from a free speech perspective as a radical separation between private and public which allows private network operators to censor material that they don’t like,[54] or think is potentially defamatory,[55] is unlikely to serve the overriding goal of ensuring the efficacy of representative democracy - as Prodigy users have already found. The potential for private network owners to arbitrarily compromise freedom of speech has been reflected in a rapidly growing literature discussing whether private networks can be regarded as ‘public space’.[56]

Conclusion

Assessing of the appropriateness of a particular regulatory model to a particular communicative activity should focus primarily on the nature of activity being undertaken and the communicative value(s) to be maximised. In the case of political discussion, whether it be on a milk crate in the Domain or in discussion group on the Net, very few, if any, restrictions should be imposed. However, in order to maximise the communicative value associated with a particular activity, laws and regulations must be sensitive to the technology being utilised. While it is probably not necessary to pass laws ensuring that there is a ready supply of milk crates in the Domain, legislative action may be necessary to ensure accessibility and speech rights on the private networks that make up the Net.

It is a mistake to think that simply because the same technology can be utilised for a large number of different communicative activities that all these activities can and should be regulated the same way.

Bibliography

“The Message In The Medium: The First Amendment On The Information Superhighway”(1994)Harvard Law Review, at note 62. Available at http://www-swiss.ai.mit.edu/6095/articles/message-in-the-medium.txt.

Barlow, JP Talk given in UNSW Information Technology Law Class, 14 August 1995.

Berman and Weitzner, “Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media” (1995) 104 Yale Law Journal 1619.

Calem, R “The Network of All Networks” New York Times, 6 December 1992.

Chesterman, M “The Money or the Truth: Defamation Reform in Australia and the USA” [1995] UNSWLawJl 16; (1995) 18 UNSW Law Journal 300.

Coultan, M “Ethnic Media gives Franca a Lingua Dilemma” Sydney Morning Herald 16 November 1994, 8.

Fish, S. There’s No Such Thing As Free Speech And It’s A Good Thing, Too (1994).

Fiss, O “In search of a New Paradigm” (1995) 104 Yale Law Journal 1613.

Godwin, M “Prodigy Stumbles As A Forum ... Again”. Available from the Electronic Frontier Foundation free speech archives: http//www.eff.org.

Goldstone, D “The public forum Doctrine in the Age of the Information Super Highway” (1995) 46 Hastings Law Journal 335.

Hammond, A “Private Networks, Public Speech: Constitutional Speech Dimensions of Access to Private Networks” University of Pittsburgh Law Review 1085.

Hyman, A “A Draft of a Legal Policy Paper on how to Deal with the Dissemination of Racist and Holocaust-Denial Information via Electronic Media, particularly the Internet”. Available at http://shamash.nysernet.org/~ajhyman/hate-law/legalp.

Katsh, E “Law in a Digital World” (1993) 38 Villanova Law Review 403, 482.

Katsh, E “Rights, Camera, Action: Cyberspatial Settings and the First Amendment” (1995) 104 Yale Law Review 1681, 1714. Available at: http://www-unix.oit.umass.edu/~eleclaw/ylj.html.

Katsh, E “The First Amendment and Technological Change: The New Media Have a Message” (1989) 57 George Washington Law Review 1459.

Katsh, E “The First Amendment and Technological Change: The New Media Have a Message” (1989) 57 George Washington Law Review 1459.

Katsh, E The Electronic Media and the Transformation of Law (1989).

Katsh, E. Law in a Digital World (1995).

Krattenmaker and Powe “Converging First Amendment Principles for Converging Communications Media” (1995) 104 Yale Law Journal 1719.

Louis Gates Jr, H “Let them talk: Why civil liberties pose no threat to civil rights” The New Republic (20 & 27 September 1993) 37.

Loundy, D “E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability” 3 Albany Law Journal of Science and Technology. A revised version is available at http://www.leepfrog/com/E-law/E-law/Contents.html.

Naughton, E “Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State Action”, (1992) 81 Georgetown Law Journal 409.

O’Neil, P “Optimizing and Restricting the Flow of Information: Remodelling the First Amendment for a Convergent World” (1994) 55 University of Pittsburgh Law Review 1057.

Pool, I de Sola Technologies of Freedom (1983).

Reisman, D “The Oral and Written Condition” in Carpenter and McLuhan (eds) Explorations in Communications (1960).

Schauer, F “Free Speech and the Demise of the Soapbox” (1984) 84 Columbia Law Review 558.

Schauer, F Free Speech: A Philosophical Enquiry (1982).

Sunstein, C “The First Amendment in Cyberspace” (1995) 104 Yale Law Journal 1757.

Tribe, L "The Constitution in Cyberspace" Keynote Address at the First Conference on Computers, Freedom & Privacy (1991) Available at http//http://www-swiss.ai.mit.edu/6095/articles/tribe-constitution.txt.

Vince, J “The Net hits the Fringe” Sydney Morning Herald 29 August 1994, 47.

Volokh, E “Cheap Speech and What It Will Do” (1995) 104 Yale Law Journal 1757.

Walker, S The Law of Journalism in Australia (1989).

Wright, H “The Mythology of Freedom of Speech” (1995) 6 Polemic 8, 11-12.

Zines, L The High Court and the Constitution (3rd Ed 1992), 338.

Legislation

Broadcasting and Television Act (1942).

Broadcasting Services Act (1992).

Explanatory Memorandum to the Broadcasting Services Act (1992)

Cases

Andrew Theophanous v The Herald & Weekly Times Limited and Anor [1994] HCA 46; (1994) 124 ALR 1.

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

FCC v Pacifica Foundation [1978] USSC 176; 438 US 726 (1978).

Ian George Cunliffe and Anor v The Commonwealth of Australia [1994] HCA 44; (1994) 124 ALR 120.

Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1.

Smith v California [1960] USSC 89; 361 US 147.

Thomas Gregory Stephens and Ors v West Australian Newspapers Limited [1994] HCA 45; (1994) 124 ALR 80.

Update Notes:

CCG’s account of convergence as a historical force in its own right is false - (1995) 6 J of L and Info Science, 12.


[1] Louis Gates Jr, H “Let them talk: Why civil liberties pose no threat to civil rights” The New Republic (20 & 27 September 1993) 37.

[2] Pool, I de Sola Technologies of Freedom (1983), 8.

[3] Ibid, 2.

[4] This list is illustrative rather than exhaustive. For further detail see the Broadcasting Services Act (1992) Part 9 - Program Standards.

[5] Walker, S The Law of Journalism in Australia (1989) 261.

[6] Explanatory Memorandum to the Broadcasting Services Act (1992) Part 9 - Program Standards.

[7] Ibid.

[8] See FCC v Pacifica Foundation [1978] USSC 176; 438 US 726 (1978). At 748 the court found that broadcast media had a “uniquely pervasive presence”.

[9] “The Message In The Medium: The First Amendment On The Information Superhighway”(1994)Harvard Law Review, at note 178 and conclusion. See also Berman and Weitzner, “Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media” (1995) 104 Yale Law Journal 1619, 1629-1635.

[10] Pool has stated “[The] right of access is what defines a common carrier: it is obligated to serve all on equal terms without discrimination.” Technologies of Freedom (1983), 2.

[11] “The Message In The Medium: The First Amendment On The Information Superhighway”(1994)Harvard Law Review, at note 158.

[12] Dawson J has stated: “the right to freedom of speech exists here because there is nothing to prevent its exercise” Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

[13] In Vic, Tas, WA and ACT newspapers must be registered. Registration is simply to enable responsibility to be attributed to a paper. Walker The Law of Journalism in Australia (1989), 262.

[14] For a discussion of the different legislative regimes that operate in each State see Walker The Law of Journalism in Australia (1989), Chapters 13 and 14.

[15] Pool, I de Sola Technologies of Freedom (1983), 2.

[16] As Liebling has put it “Freedom of the press is guaranteed only to those who own one” The Press (1975), 32. Cited in Krattenmaker and Powe “Converging First Amendment Principles for Converging Communications Media” (1995) 104 Yale Law Journal 1719, 1721.

[17] Chesterman, M “The Money or the Truth: Defamation Reform in Australia and the USA” [1995] UNSWLawJl 16; (1995) 18 UNSW Law Journal 300, 315.

[18] Wright, H “The Mythology of Freedom of Speech” (1995) 6 Polemic 8, 11-12. See also the concluding remarks to this essay.

[19] Five High Court decisions deal with free speech in Australia: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1, Andrew Theophanous v The Herald & Weekly Times Limited and Anor [1994] HCA 46; (1994) 124 ALR 1, Ian George Cunliffe and Anor v The Commonwealth of Australia [1994] HCA 44; (1994) 124 ALR 120, Thomas Gregory Stephens and Ors v West Australian Newspapers Limited [1994] HCA 45; (1994) 124 ALR 80.

[20] According to the constitutional scholar Leslie Zines “[W]hat is necessary for a free and democratic society merely states a broad issue of political philosophy”. The High Court and the Constitution (3rd Ed 1992), 338.

[21] Justice Hugo Black is famous in free speech jurisprudence for saying “No law means, no law”. Smith v California [1960] USSC 89; 361 US 147. Black is referring to the first phrase of the First Amendment which provides in part; “Congress shall make no law ... abridging the freedom of speech or of the press”. Black is cited with approval by Pool Technologies of Freedom , 55. Stanley Fish has argued that the absolutist position on free speech is tautological and meaningless in There’s No Such Thing As Free Speech And It’s A Good Thing, Too (1994), 15.

[22] Chief Justice Mason stated in ACTV that “Whether .. restrictions [on free speech] are justified calls for a balancing of the public interest(s), and for a determination whether the restriction is reasonably necessary to achieve the competing public interest.” (1992) 177 CLR 106.

[23] Director of the media lab at MIT, cited in Katsh, E “Rights, Camera, Action: Cyberspatial Settings and the First Amendment” (1995) 104 Yale Law Review 1681, 1714. Available at: http://www-unix.oit.umass.edu/~eleclaw/ylj.html.

[24] See “The Message In The Medium: The First Amendment On The Information Superhighway”(1994)Harvard Law Review, at note 62. Available at http://www-swiss.ai.mit.edu/6095/articles/message-in-the-medium.txt.

[25] John Perry Barlow estimates that a workable internet connection can be obtained for around US$150 - “That’s less than what kids in the ghetto spend on tennis shoes”. Talk given in UNSW Information Technology Law Class 14 August 1995. For a direct attack on this view see Hyman, A “The EFF's ... erroneous perception that network access is universal, is classist, sexist and ageist” in “A Draft of a Legal Policy Paper on how to Deal with the Dissemination of Racist and Holocaust-Denial Information via Electronic Media, particularly the Internet”. Available at http://shamash.nysernet.org/~ajhyman/hate-law/legalp.

[26] Internet ‘cafes’ have started to set themselves up. For one example see Vince, J “The Net hits the Fringe” Sydney Morning Herald 29 August 1994, 47.

[27] Volokh, E “Cheap Speech and What It Will Do” (1995) 104 Yale Law Journal 1757, 1833. See also O’Neil, P: “The core values of the First Amendment should be advanced in a world in which information and ideas are universally available.” in “Optimizing and Restricting the Flow of Information: Remodelling the First Amendment for a Convergent World” (1994) 55 University of Pittsburgh Law Review 1057, 1073. See also Sunstein, C: “In the midst of economic inequality, perhaps technological advances can make political equality a more realistic goal.” in “The First Amendment in Cyberspace” (1995) 104 Yale Law Journal 1757, 1784.

[28] Volokh, ibid, 1833.

[29] “The Message In The Medium: The First Amendment On The Information Superhighway”(1994) Harvard Law Review, Part III.

[30] Calem, R “The Network of All Networks” New York Times, 6 December 1992, cited in Katsh, E “Law in a Digital World” (1993) 38 Villanova Law Review 403, 482.

[31] Sunstein, C “The First Amendment in Cyberspace” (1995) 104 Yale Law Journal 1757, 1785.

[32] Ibid, 1786.

[33] NSW MP Franca Arena warned us late last year that too much ethnic broadcasting on radio and TV would lead to “language ghettos and enclaves”. Coultan, M “Ethnic Media gives Franca a Lingua Dilemma” Sydney Morning Herald 16 November 1994, 8. David Reisman has stated “print is the isolating medium par excellence.”; “The Oral and Written Condition” in Carpenter and McLuhan (eds) Explorations in Communications (1960), cited by Katsh, E “The First Amendment and Technological Change: The New Media Have a Message” (1989) 57 George Washington Law Review 1459, 1466.

[34] Krattenmaker and Powe identify the print model as being the source of their Four Basic Principles “that govern the legal regulation of virtually all other [not broadcasting] mass media in the United States” in “Converging First Amendment Principles for Converging Communications Media” (1995) 104 Yale Law Journal 1719, 1732. See also Berman and Weitzner “Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media” (1995) 104 Yale Law Journal 1619. At 1621 they state “Throughout this Essay, we return to the print medium as a powerful demonstration of how to achieve diversity and limit government content regulation”.

[35] Schauer, F Free Speech: A Philosophical Enquiry (1982) 86, cited in Chesterman, M “The Money or the Truth: Defamation Reform in Australia and the USA”, 315.

[36] Although this is not obligatory: Krattenmaker and Powe “Converging First Amendment Principles” 1731. See also Pool Technologies of Freedom , 106, where he argues that ‘equal access’ is a First Amendment value.

[37] Pool’s first “Policy for Freedom” reads as follows: “The first principle is that the First Amendment applies fully to all media. It applies to the function of communication... It applies to the electronic media as much as to the print ones.” Technologies of Freedom (1983), 246.

[38] Krattenmaker and Powe “Converging First Amendment Principles for Converging Communications Media” (1995) 104 Yale Law Journal 1719, 1719. Thinkers such as Laurence Tribe have argued that “the Constitution's norms, at their deepest level, must be invariant under merely technological transformations.” "The Constitution in Cyberspace" Keynote Address at the First Conference on Computers, Freedom & Privacy (1991) Available at http//http://www-swiss.ai.mit.edu/6095/articles/tribe-constitution.txt.

In that speech Tribe suggests a Twenty-seventh Amendment to the US Constitution:

"This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."

[39] See for example the definition of ‘broadcasting’ in the Broadcasting Services Act (1992) which omits the phrase “by the means of wireless telegraphy” used in the definition of the Broadcasting and Television Act (1942).

[40] “The principles of..the First Amendment have been applied to broadcasting in only atrophied form.” Pool, Technologies of Freedom, 2.

[41] Berman and Weitzner, “Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media” (1995) 104 Yale Law Journal 1619, 1629.

[42] Schauer, F “Free Speech and the Demise of the Soapbox” (1984) 84 Columbia Law Review 558, 568.

[43] David Loundy has stated “when a service has a number of communication options, one analogy is insufficient” in “E-Law: Legal Issues Affecting Computer Information Systems and System Operator Liability” 3 Albany Law Journal of Science and Technology. A revised version is available at http://www.leepfrog/com/E-law/E-law/Contents.html.

[44] Pool Technologies of Freedom,, 7. Pool was referring to the clumsy judicial understanding of technology. The importance of metaphor in a free speech context is reinforced in Fiss, O “In search of a New Paradigm” (1995) 104 Yale Law Journal 1613 passim.

[45] Katsh’s latest book Law in a Digital World (1995) focuses on the influence of the Net. An earlier work The Electronic Media and the Transformation of Law (1989) dealt mainly with LEXIS and WESTLAW. Introductions to both books are available at: http://www-unix.oit.umass.edu/~eleclaw/ylj.html.

[46] Katsh, E The Electronic Media and the Transformation of Law (1989), Chapter 1.

[47] Katsh, E “Rights, Camera, Action: Cyberspatial Settings and the First Amendment” (1995) 104 Yale Law Review 1681, 1710.

[48] Ibid, 1711-12. See also Katsh, E “The First Amendment and Technological Change: The New Media Have a Message” (1989) 57 George Washington Law Review 1459, 1485.

[49] Katsh, E “The First Amendment and Technological Change: The New Media Have a Message” (1989) 57 George Washington Law Review 1459, 1483-1484.

[50] It is Krattenmaker and Powe’s ‘First Principle’: “editorial control, because it is invariably content-based, is an inherently impermissible government function” in “Converging First Amendment Principles”, 1727. See also Pool Technologies of Freedom 246-248.

[51] Tribe labels the private/public distinction “Axiom No 1” in "The Constitution in Cyberspace".

[52] As discussed in the first part of this essay, free speech ‘markets’ are dominated by large private monopoly players.

[53] Katsh has commented “[T]he use of distinctions such as public/private,.. foreign/local,..and economic/political will raise more questions than they did in the past.” in “Rights, Camera, Action: Cyberspatial Settings and the First Amendment”, 1715.

[54] Email complaints over changes to Prodigy’s fee structure were censored by Prodigy. For a discussion see Naughton, E “Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State Action”, (1992) 81 Georgetown Law Journal 409, 409-10.

[55] See Godwin, M “Prodigy Stumbles As A Forum ... Again”. Available from the Electronic Frontier Foundation free speech archives: http//www.eff.org.

[56] See for example: Naughton, E “Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State Action”, (1992) 81 Georgetown Law Journal 409: Hammond, A “Private Networks, Public Speech: Constitutional Speech Dimensions of Access to Private Networks” University of Pittsburgh Law Review : Goldstone, D “The public forum Doctrine in the Age of the Information Super Highway” (1995) 46 Hastings Law Journal 335: and “The Message In The Medium: The First Amendment On The Information Superhighway”(1994) Harvard Law Review, at note 144.


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