"Congress shall make no law abridging the freedom of speech." "No law" comes to be "almost no law," especially for explicit material sent electronically. Technologies are value-neutral, yet can policy values truly be technology-neutral? Today’s jumble of regulation is increasingly hard to maintain as voice, image, data, and text coalesce into one massive "telematic" network, and as hybrid technologies like virtual reality blur the line dividing speech from action. Though a truly nondiscriminatory First Amendment policy may be unattainable, the challenges of today’s (and tomorrow’s) computer telecommunications environment demand a more proactive and consistent approach to the first freedom. How might—and how should—this right be applied in the era of the information superhighway?
Notable opinions on the First Amendment’s future range from mild optimism to deep despair. Ithiel de Sola Pool claims the loss of liberty is not foreordained, while former British Film Institute director Anthony Smith observes that freedom of expression is now less than it was at the turn of the century.1 James Martin, the techno-prophet who foresaw desktop publishing, electronic surveillance, and end-user computing, is uncharacteristically pessimistic: If Orwell had known about computers, he claims, his vision in 1984 might well have been worse!2 Journalist Haynes Johnson fears that the sparkle and glow of electronic escape will make real life seem drab and prosaic.3
Of the current challenge, Representative George Brown observes that the United States is developing policies for a completely new kind of society, as if Jefferson and his turn-of-the-century Congress were to guide the country from the Agricultural Age through the industrial era.4 Is the United States producing a crop of founding mothers and fathers as enlightened as the leaders of the colonial period?
A brief review of how separate media are censored includes a discussion of First Amendment challenges of the current information era. The focus then moves to virtual reality, perhaps the most constitutionally challenging offspring of the marriage between computers and telecommunications. A final section outlines several technological, legal, and political aspects of the future of the first freedom.
Three Models of Regulation. No modern technology has achieved the full freedom constitutional stature of the soapbox or the printing press; indeed, every breakthrough from the telegraph to fiber-optic video ignites a trench war between freedom fundamentalists and those seeking to regulate content "for the benefit of society." All three branches of government take part in this balancing act, with the courts often in the featured role.
Ithiel de Sola Pool’s extraordinary work on media and liberty, Technologies of Freedom, is an historical analysis of three communications policy structures: the sacrosanct, full-freedom "print model"; the "common carrier model," which supports natural monopolies while prohibiting content discrimination; and the restrictive licensing or "broadcast model" that permits private owners to act as regulated publishers of programming that is itself subject to government censorship.5
Some written content is not protected because it is seen to increase the incidence of sex crimes and offend those exposed to it against their wishes. By exciting the sexual fantasies of adults, it crosses the critical line between pornographic words and illegal action.6 Constitutional scholar Thomas Emerson points out, though, that the release from the use of erotic material may actually reduce the occurrence of illegal acts.7 Moderating this "permanent tension" between the constitution and the public interest has led to what law professor Harry Kalven terms a "proliferation of judicial views on obscenity."8 The current test is the Supreme Court’s 1967 Miller v. Califomia Court decision, which sets forth three rules for judging a work: whether (1) taken as a whole, it sexually arouses the average person, (2) it depicts sexual conduct in a patently offensive way, and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value.9
Though this decision has remained the accepted speech and print regulation standard for decades, Miller’s inconsistencies make successful prosecutions extremely rare. Justice Douglas derided any case based on either "patent offensiveness" or "community standards," observing that "every idea is capable of being obscene if the personality perceiving it so apprehends it....Definitions of obscenity," he pointed out, "...are as unique to the individual as his dreams."10 Moreover, evaluating a creation as "serious," "frivolous," or somewhere in between is a highly personal and idiosyncratic mental process. Even those who accept the legal concept of obscenity stumble on this shaky constitutional footing. An exasperated Justice Stewart said in essence of "hard-core" pornography, "I can’t tell you what it is, but I know it when I see it.." The test’s normative guidelines have been expanded in various "communities" to find material obscene for its actual or intended effect on a particular (sometimes manifestly "unaverage") audience, like sadomasochists, or for the "pandering" way in which it is marketed to the unsuspecting public.11
Telegraphy and telephony eventually became common carriers with an obligation, like postal or rail service, to offer equal rates in exchange for comparable service. With rare exceptions, notably refusals to carry 976 dial-a-porn audiotex, telcos have honored this commitment regarding explicit language. The restrictive broadcast model, however, bases the granting of transmission licenses on whether they serve the "public convenience, interest and necessity." The criminal code and the 1927 Radio Act enabled the government to control content by censoring material that is either "obscene" or "indecent," two terms that were used interchangeably for decades.12
Some background on how the separation doctrine has been applied to newer media is helpful in gauging how control of explicit content may affect merging computer/telecommunication technologies. Two relevant cases are the decoupling of "indecency" from "obscenity" in broadcast radio, and the on-again/off-again/on-again regulation of cable TV.
A guiding principle of First Amendment jurisprudence is that the limits of freedom of expression be suited to the special features and characteristics of each particular medium. The loudness of a sound truck, for example, is subject to control for its "high-volume" potential to confront citizens in their homes. Consequently many authorities assert that the "uniquely pervasive presence" of over-the-air broadcasting permits government to protect the rights of those who traverse the dial with no warnings of what they might encounter.13 Two other rationales accompany this "accessibility" criterion for broadcast regulation: "spectrum scarcity," rarely applied in obscenity cases; and "improper influence," the principle that broadcast technologies gain more direct and visceral access to the consciousness—particularly of children— demanding little of the deliberate intellectual participation of, say, going out to purchase and subsequently decode (read) printed matter.14
Indecency in the Air. In the landmark 1975 case against the FCC, the Pacifica Foundation sought to overturn an "indecent programming" sanction for a daytime airing of George Carlin’s satire, "Seven Dirty Words You Can’t Say on TV." After a Court of Appeals ruled that the nonarousing monologue could not be obscene, a High Court reversal found the "Filthy Words" performance was, in fact, "indecent." This term has since been applied to the use of sexual or excretory expletives, not just occasionally but repeatedly, and with the intention to shock a substantial segment of the public. The court reasoned that patently offensive material on the air "confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone clearly outweighs the First Amendment rights of an intruder."
Both time of day and community standards were referred to in the High Court’s reversal, especially in regard to broadcasting’s ability to enlarge the vocabulary of children (improper influence) and its impact on the unsuspecting and often unwilling public (accessibility). Dissenters criticized the majority’s "fragile sensibilities" and their intolerance of diversity, yet the commission’s indecency sanctions survive into today’s "shock jock" era.15
Cable Regulation: A Continuing Saga. The "special features and characteristics" presumption notwithstanding, "the first treatment of an emerging medium is always based, at least in part, on the treatment traditionally applied to old technologies."16 Pool notes that the carrying over of unnecessary limits is rooted in frozen perceptions.17 Proactive interference, the hind-ering effect old habits exert on subsequent learning, is compounded by legislatures’ tendency to reason by analogy and by the significance of precedent in Anglo-American jurisprudence. The volatility of cable television policy reflects the carrier’s changing relationship with the more mature broadcast television industry.18 Communications scholar Patrick Parsons and others trace this progression through three distinct stages. Initially a means of improving TV reception, cable saw no regulation beyond that exerted on the core medium. Once increased spectrum (less scarcity) enabled it to originate its own programming, including adult humor and explicit images, the courts accepted a First Amendment shield. (The FCC still persisted for some time in trying to regulate it based on threats to privacy, the accessibility doctrine, and its perceived ancillarity to television—though by then it was more of a competitor.) In the third stage, each subscriber’s ability to monitor program guides, decline overall service or specific shows, and technically prevent children from viewing certain channels was assumed.19 This independence was inherently unstable, as cable became caught between the organizational and regulatory models of newspapers and telephones.20 Operators’ problematic pairing of a natural delivery system monopoly and absolute programming control gave rise to reregulation. Those pressing for continued "freedom," though, are mainly potential competitors and frustrated rate payers, hardly more protective than regulators of the right to offer and view explicit programming.
The magnitude of the coming content battle will transcend past and present policy skirmishes. Major new breakthroughs in electronic interaction materialize before Congress can collect testimony on the last generation’s issues, let alone measure and respond to their effects. Neither judges, regulators, nor legislators can stay abreast of each scientific development and its social consequences, so new technologies will continue to be treated with obsolete judicial logic and regulatory equivocation.
Bulletin Boards: Today's First Amendment Battlefield. An especially relevant test case for this media policy web has existed for years in the world of computer bulletin board systems (BBS). While the medium’s textual presence is less vivid than the images of cable, sexually oriented content generates considerable revenue for many on-line services. What BBS operators hope to establish is a division of services into open "public" areas and restricted sectors where traffic is limited to "private" messages. The precedent to date, paralleling the print model, suggests that operators may be held liable for content only in the public areas. Private messages may be confidential and not subject to censorship, as they are in a telephone system. The analogy is weakened by the fact that newspapers and telephones are two different things, while the line between "print" and "common carrier" functions of a bulletin board system is dynamic even within a single session. Users may "meet" in a public room, adjourn anonymously to private rooms for intimate conversations, and continue at will to alternate between the two "places." Court cases yet to be filed and future telecom research will help flesh out answers to two important questions: (1) Will this bifurcated regulatory model be judged viable for bulletin boards, and (2) Can it be generalized successfully to newer multisensory telecommunications environments?
While today’s vision of a multimedia thoroughfare strains this piecemeal approach to censorship, tomorrow’s virtual reality (VR) technology could literally eliminate the legal distinction between protected telecommunication and criminal action. Scientists and leading-edge entrepreneurs are developing interactive technologies to immerse users in a totally convincing illusion, seeking to assemble a "real" and sharable environment within a cybernetic "teleplace," the synthetic equivalent of a fully "inhabitable" alternate world.
Some research and arcade VR implementations already enable the user/participant, masked (or wrapped) in sensory effectors, to walk through unconstructed buildings, feel the pull of molecular gravity, or engage in a high-tech shoot-out with a computer or a human opponent. VR peripherals are limited at this point to primitive step platforms, datagloves, and bulky head-mounted audio/video displays (HMDs), yet tactile effectors are already being tested. Such systems, which transcend current definitions of simulation, would become a convenient substitute for reality. Due to today’s computing capacity and spectrum limits, these services will not be available right away over large networks. "Teledildonics," the "remote intimacy" dimension of the fledgling VR concept, is only a whimsical neologism, the brainchild of inventor and electronics visionary Theodor Nelson. Still, its ethical, legal, and policy ramifications should be modeled and investigated before they personally —even physically—touch our lives.
Newer and hotter controversies will supersede those surrounding "filthy" words and images, and alter forever the legal and social landscape. Truly persuasive, full-sensory depictions could give rise to a new epoch of high-technology crime and alienation. Now able only to violate system security by trashing files or spreading obscure viruses, network pirates could someday employ recorded or counterfeit bit streams to commit heinous acts of breaking and entering: virtual sexual harassment, cyberotic fraud, or even "remote statutory rape." With enough bandwidth, 1-900-TALKSEX might become 1-900-HAVESEX. Should such network sex for hire be punishable as a case of felony prostitution or heralded as a breakthrough in shop-at-home convenience— intimate human relations at their safest? Craig Brod’s quotation from a six-year-old computer user gives cause for concern: "Sometimes I feel lonely, but I’d rather be with the computer than with my friends."21 Would this twenty-first century man ever go "home" from his personal cyberspace? Would he ever bother to distinguish real affection from "technosex"?
Many dismiss the idea of alternative virtual worlds as a macabre nightmare, as melodramatic as Stephen King’s The Lawnmower Man or as outlandish as the "consensual hallucination" of Neuromancer, William Gibson’s postindustrial depiction of a world of simulated sensation. Can such a notion be "real"? Is the computer-telecommunications industry crass enough, critics wonder, to market such an "unnatural" product? Are consumers carnal and vacuous enough to subscribe to it?
Such questions sound hypothetical—in the 1990s. The technology, though, is hardly farfetched. Nor are such Brave New World applications ridiculous—though they may be decades away. On the supply side, engineer Danilo De Rossi has closely modeled human skin, imbuing tactile effectors with warm and personal softness.22 Olfactory telecommunications may one day complete the illusion. A real-world laboratory to gauge demand for shared fantasy tools is the network version of Leisure Suit Larry, an "adult" computer game where remote users engage in telesex through cartoon surrogates. The initial "G-rated" release displays only the partner’s face while allowing each user to control his or her own expressions. Despite this limitation, the game’s producer can see real spouses getting jealous, and he guesses, "It is going to cause more than one divorce."23 Could some distant virtual partner be named as correspondent? Might the company itself end up in court? Or will a truly content-blind common carrier standard transcend the spoken or written word to encompass any telecommunication sensory data? These questions are speculative, but some real instances will appear in the media —where permitted—in the coming months and years.
The Full Spectrum of Freedom. What should be the operational significance of this first freedom, as existing media merge with computing breakthroughs? The gifts of any invention —matches, the printing press—do not come free. Each has its price, in innocence if nothing else, and none will effectively police itself. "Self-regulation in the public interest" is a standard euphemism for the threat of censorship, variously exerted on the film, rock music, and now video game industries.24 Can the society preserve yesterday’s libertarian values among tomorrow’s seductive interfaces to such a spectrum of temptations?
The First Amendment and its proscriptions against almost all prior restraint set freedom of expression in the United States apart from what exists in other democracies. The constitutional imperative is to minimize regulation and apply the print model wherever possible to recent and newly blended media. Freedom should not be abridged unnecessarily through the content and structure controls that have saddled broadcast since the 1920s. Electronic content regulation, which trickled in through a narrow mandate to ensure signal integrity, can dampen—even saturate—the cultural fabric. To be truly effective at guaranteeing personal freedom, any approach to censorship of "telecomputed" information must address its technological, legal, and social aspects.
The Technological Dimension. Can technology solve the problems its progress helps create? To some extent, yes. Simply stated, no government or other outside authority should determine what adults may receive. Parents, though, do have a right to censor their minor children’s reading, viewing, and listening. Pool points to electronic technology’s "pliancy and profusion" as positive factors in the protection of freedom of speech, and there are obvious successes.25 Cable lock-outs have worked, as should applying various encryption principles to keep explicit material from the young or unwitting. Our ability to "grow more spectrum" supports freedom of communication.26 So may the coming commercialization of signal delivery alternatives like direct broadcast satellite (DBS), fiber optics, and multichannel multipoint distribution services (MMDS).
Still other solutions less restrictive than censorship will become technologically feasible. Segregating explicit imagery into the late evening hours is comparable to radio’s de facto policy on indecent language. While this is hardly a comprehensive solution, it is an incremental advance over today’s confused and oppressive patchwork of telecommunication censorship policies. Indecent or sexually explicit material might better be "zoned" to certain portions of the spectrum and decoders made available only to adults. This would enable parents to prevent their children from viewing erotic material, at least to the extent they can secure other pornography from curious young eyes. Such a limitation is completely analogous, claim several experts, to segregating "adult" books into separate bookstores or separate sections of bookstores. It also has a larger parallel in municipal zoning codes that limit some manifestations of the sex industry to specific geographic areas, like Boston’s "Combat Zone" and New York City’s Times Square.
The accessibility issue, already unconvincing for adults, could become completely irrelevant in the future. Carrying a recent computer network software advance a step further may open up a compromise between the freedom to transmit and the right to privacy. The "Knowbot" is a product from the Corporation for National Research Initiatives (CNRI). Given a theme by its user, a "knowledge robot" can search various networks and databases for relevant information, irrespective of the language or form in which it is stored. Why not enhance this development to produce a "Know-Not," a software genie coded instead to filter out incoming communications —words, images, and other signals—in contexts and combinations the user might construe as offensive? Enabling all recipients to prevent unwanted sensory data from raining on their virtual picnic could launch a whole industry for "do-it-yourself censorship." It would expand the concept of freedom of expression, giving rise to complete sensory and intellectual self-determination—universally acceptable content control.
Unfortunately, government tends to ignore the existence of workable technological solutions, contriving instead to protect children through dated precedents and heavy-handed legislation that prevent consenting and law-abiding adults from viewing otherwise legal matter. Policies struggling to keep up with today’s telematic environment will prove wholly inadequate in a future where current media coalesce into a single and engrossing multisensory panorama. Each household could become a local originator of audio, text, and video over an integrated, switched, and networked marketplace of ideas. As the FCC conceded in a decision that repudiated the scarcity rationale, "The function of the electronic press in a free society is identical to that of the printed word."27 This is just as true for entertainment content across the various media, whose functional similarities also outweigh any physical differences.
Contrary to the persuasiveness finding in the "Filthy Words" case, the broadcast and on-line media consumer is not an unknowing captive randomly bombarded by sounds and pictures. Rather, he or she is a willing recipient of information. If unpalatability and shock value were just cause to censor content, many news stories—including some notable legislatlve and court hearings—would also be kept off the air. Given the wide array of content the modern communications environment can support, and in light of the United States’ traditional utilitarian ideology, the government should afford all citizens the right to choose what they will view—or produce!
The Legal Dimension: Reconciling the Separation. The Supreme Court should rededicate itself to preserving the core values of the First Amendment and stop subjecting each new technology to a different standard of protection. Jonathan Emord and other experts see embracing a universal print standard in the next century as the only way to keep needless regulatory restraints from compromising liberty. A "full freedom" approach should recognize the fact that the general public is not a passive and undifferentiated mass; rather, it comprises an active segment of a bustling and diverse electronic information marketplace for voice, image, text, and eventually tactile content. Suppressing something as "offensive" not only allows an imperfect government to deprive communicators of their rights but prevents recipients from exercising their democratic freedom to decide what they will or will not find "of value" from among the full array of possibilities.
The Political Dimension. The natural lobby for free speech is small and shows no signs of growth. The strength and character of the newspaper and magazine industries, long champions of this liberty, continue to fall victim to liquidations, mergers, and acquisitions. So long as they can profit substantially under the current arrangement, broadcasters will "lack diligence in pressing for full First Amendment rights."28 Still, the right to send even the most unpopular and unsavory communications should not be suppressed—over any medium—so long as less constricting alternatives are available. Protection of freedom of expression for all Americans cannot safely be left to industry leaders, politicians, and the courts. The vigilance and activism of general citizen groups, and of telecommunications and information industry professionals in particular, are essential to the preservation of First Amendment rights in the next century. As John Berry writes, "Freedom is expensive, dangerous, unpredictable, and sometimes ugly and offensive. At such a high price, no wonder it is so sweet."29
1. Ithiel de Sola Pool, Technologies of Freedom (Cambridge, MA: Harvard University Press, 1983) p. 251; and Anthony Smith, "The Public Interest and Telecommunications," in Paula R. Newberry (ed.), New Directions in Telecommunications Policy, Volume 1: Regulatory Policy: Telephony and Mass Media (Durham, NC: Duke University Press, 1989), p. 358.
2. James Martin, Telematic Society: A Challenge for Tomorrow (Englewood Cliffs, NJ: Prentice Hall, 1981), p. 193.
3. Haynes Johnson, "Social and Human Factors," in R.L. Chartrand (ed.), Critical Issues in the Information Age (Metuchen, NJ: The Scarecrow Press, 1991), pp. 106-109.
4. George E. Brown, Jr., "Implications for the Role of Government in Information Age Policy," in Chartrand, p. 23.
5. Pool, pp. 81-90.
6. K. Greenawalt, Speech, Crime, and the Uses of Language (New York, NY: Oxford University Press, 1989), p.149.
7. Thomas I. Emerson, The System of Freedom of Expression (New York, NY: Random House, 1970), p. 498.
8. Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (New York, NY: Harper & Row, 1988), pp. 34, 41.
9. For a more complete discussion, see D.A. Downs, The New Politics of Pornography (Chicago, IL: University of Chicago Press, 1989).
10. H. Bosmajian (ed.), Justice Douglas and Freedom of Speech (Metuchen, NJ: The Scarecrow Press, 1980), p. 89.
11. Kalven, pp. 42-48.
12. F.J. Kahn (ed), Documents of American Broadcasting (Fourth Edition) (Englewood Cliffs, NJ: Prentice Hall, 1984), p. 53.
13. Pool, p. 134.
14. J. Lichtenberg, Democracy and the Mass Media: A Collection of Essays (New York, NY: Cambridge University Press, 1990), p. 6. See also M.L. Spitzer, Seven Dirty Words and Six Other Stories: Controlling the Content of Print and Broadcast (New Haven, CT: Yale University Press, 1986).
15. See Kahn, pp. 338-353, for a detailed, annotated review of "FCC v. Pacifica Foundation," 438 U.S. 726 (1978).
16. A.A. Bernstein, "Access to Cable, Natural Monopoly, and the First Amendment," Columbia Law Review (86:1986), p. 1663.
17. Pool, p. 150.
18. L.H. Winer, "The Signal Cable Sends: Why Can't Cable Be More Like Broadcasting?," Maryland Law Review (46:1987), p. 265.
19. P. Parsons, Cable Television and the First Amendment (Lexington, MA: Lexington Books, 1987).
20. M.L. Spitzer, "Broadcasting and the First Amendment," in Newberg, p. 189.
21. Craig Brod, Technostress: The Human Cost of the Computer Revolution (Reading, MA: Addison-Wesley Publishing Company, 1984), p. 121.
22. H. Rheingold, Virtual Reality (New York, NY: Simon K. Schuster, 1991), p. 347.
23. J. Markoff, "The Latest Technology Fuels the Oldest of Drives," New York Times: News of the Week in Review, March 22, 1992, p. E5.
24. Pool, p. 135.
25. Ibid., p. 251.
26. M.L. Spitzer, "DAB (Digital Audio Broadcasting): The Next Generation of Radio Broadcasting?," Broadcasting (62: June 4, 1990).
27. See Jonathan W. Emord, Freedom, Technology, and the First Amendment (San Francisco, CA: Pacific Research Institute for Public Policy, 1991), Chapter 18.
28. R.E. Labunski, The First Amendment Under Siege: The Politics of Broadcast Regulation (Westport, CT: Greenwood Press, 1981), p. 13.
29. John N. Berry, III, "If Words Will Never Hurt Me, Then...," Library Journal (January, 1992), p. 6.
* From The Information Society, Vol. 10(1), pp. 295-303, Martin Fogelman. Reproduced with permission. All rights reserved.