IP: The Internet vs. the First Amendment From the NY Times Editorial

[Dave Farber <farber@cis.upenn.edu>]

   I had not read this prior to my previous note . Clearly I agree with most of his points. djf

  April 28, 1999


           The Internet vs. the First Amendment
           By LAURENCE H. TRIBE
           AMBRIDGE, Mass. -- As we try to make sense of the school massacre in 
           Littleton, Colo., we suddenly find ourselves swept up in a national 
           debate about whether the Internet, with its dazzling array of 
           interactive mayhem and violence, is partly to blame. 
           Should the Internet be available to anyone, of any age, with a 
           computer and a telephone connection? Many who have long wanted to 
           muzzle the Internet are making symbols of Eric Harris and Dylan 
           Klebold, who used the Internet to play violent computer games and 
           promote their racist views. 
           How much protection should Internet "speech" receive under the First 
           Amendment? And, under the Fourth Amendment's search and seizure 
           provisions, may the Government browse Web sites without a warrant in 
           order to nip mass murder plots in the bud? While nearly every possible 
           view has its champions, most of the opinions expressed reflect more 
           confusion than clarity. 
           The point to remember is that basic constitutional principles do not 
           arise and disappear as each new technology comes on the scene. We have 
           come to this conclusion rather slowly. Early in the 20th century, the 
           Supreme Court expressed doubt that free-speech principles had any 
           application at all to motion pictures, and in 1981, Justice Byron 
           White introduced his analysis of a law regulating outdoor billboard 
           advertising by saying, "We deal here with the law of billboards." 
           Only in recent years has the Court recognized that new technology 
           doesn't affect basic constitutional principles. The Court has found 
           that technological details, however, can be relevant to certain 
           applications of the law, especially because, in principle, speech may 
           not be restricted any more than necessary. 
           For instance, the Supreme Court struck down provisions in 1997 of the 
           Communications Decency Act because they blocked pornographic materials 
           from being transmitted over the Internet, when technology already 
           existed that allowed parents to selectively censor such materials. 
           Even though the Internet allows nearly anyone to obtain or transmit 
           information instantaneously to and from anywhere on the planet, it 
           does not deserve more -- or less -- free-speech protection than older 
           media. 
           A Web page simulating, or even glorifying, violence and hatred is not 
           outside the First Amendment's protection any more than are disgusting 
           board games, magazines or political tracts. The same First Amendment 
           that safeguards the right of Nazis to march through Skokie protects 
           the right of an adult to put virtual machine guns aimed at lifelike 
           human targets on his or her computer screen. 
           At the same time, Internet speech doesn't have more constitutional 
           protection than speech disseminated in a more old-fashioned and 
           limited manner. In particular, direct threats or other messages that 
           by their very utterance cause harm receive no more protection on the 
           Internet than anyplace else. Releasing a computer virus through E-mail 
           deserves no greater immunity than crying "Fire" in a crowded theater. 
           What about someone who posts a Web page with detailed, step-by-step 
           instructions on how to assemble an explosive device from readily 
           available materials? Such instructional materials are not quite like 
           yelling "Fire" in a theater; they do not cause harm in a purely 
           reflexive or automatic manner. Instead, they change the mix of ideas 
           and information in the heads of the speaker's audience. 
           Speech disseminating such instructions on the Internet, however 
           reprehensible, is thus entitled to a degree of First Amendment 
           protection. But it is not entitled to the same level of protection to 
           which speech advocating ideas is entitled because it is rarely part of 
           any dialogue about what is true or what ought to be done. Distributing 
           such materials doesn't try to persuade anyone to take a course of 
           action, but instead provides the means for committing a crime. 
           Thus, the United States Courts of Appeals have held that distributing 
           pamphlets on how to evade taxes, make illegal drugs or kill someone 
           can amount to aiding and abetting a crime and may be punished as such, 
           depending, of course, on the particular facts. 
           The First Amendment, therefore, should shoulder none of the guilt in 
           the Littleton killings. In truth, the First Amendment leaves 
           considerable room for government to exert control, and the advent of 
           the Internet neither broadens nor narrows government's options. 
           Nor, for that matter, is the Fourth Amendment protection against 
           unreasonable searches and seizures among the culprits here. Those who 
           launch murderous plots by posting their deranged plans on a Web site 
           are exposing their schemes in a public space, one that government 
           agencies may freely browse without a warrant despite the fanciful 
           argument that all talk on the World Wide Web is as private as E-mail 
           messages might be. A t the same time, it would be a grave mistake to 
           assume that either government surveillance or control can play an 
           important role in preventing violent crimes. Doing more to keep lethal 
           weapons out of youthful hands -- something the Second Amendment, under 
           any reading, does not prevent -- and trying to diagnose all forms of 
           rage before they erupt into violence, are likely to be far more 
           effective than anything government could do either by spying on the 
           Internet's users or by suppressing their speech.

           Laurence H. Tribe, a professor of constitutional law at Harvard, is 
           the author of the forthcoming third edition of "American 
           Constitutional Law."