Magazine

Speaking of Free Speech

Reviewed by Kevin Hunt

If you have any interest at all in computer-mediated communication, you're already familiar with most of the new free speech controversies -- libel, sexual harassment, cyberporn, copyright infringement -- that have sprung up with the growth of the Internet. And you probably know the general issues at stake in the various legal battles -- the Communications Decency Act, the Matt Drudge libel suit, the Netcom case, etc. -- that have been staged over First Amendment controversies about online communication. But what you'll find new in Cyber Rights, Mike Godwin's commentary on these controversies and others, is a clearsighted and detailed analysis of the legal theory and strategies behind the controversies, written in a style that even those of us having an aversion to reading anything penned by an attorney will find refreshing and enjoyable. What's more, Godwin couples his legal analysis with a very personal, passionate account of how freedom of expression in cyberspace is being defended, and why it's so important to do so.

The strength of Godwin's book lies in his ability to carefully guide us through the specifics of the various legal skirmishes that have been waged over online communication. A good example is in his look at the Communications Decency Act. While the Act has now been thrown on the scrapheap of ill-conceived, unconstitutional laws (due in a large degree to Godwin's work as counsel to the Electronic Froniter Foundation, one of the many organizations to challenge the Act immediately after it was signed into law), few of us probably give the fine points of the decision much thought. But Godwin does us a great service by sheddding a great deal of ink explaining the significance of the opinions written by the three-judge panel. The opinions, as Godwin meticulously but fascinatingly describes them, tie together two First Amendment theories that seem to be mutually exclusive: the theory that every medium should be treated more or less like the press, and the other theory that each medium carries with it differing natures, values and dangers, and thus rendering "each a law unto itself." The result, in Godwin's analysis, is that the opinions set an important precedent that "will be read and reread for decades, educating judges, lawyers, and society at large about why the Net matters," as perhaps the most demoncratic medium of expression our society has yet developed.

In addition to his useful explanations of the legal theories that inform First Admendment issues on the Net, perhaps even more enlightening is Godwin's insight into the legal strategies employed by all the players in the various free speech battles. Although these strategies are probably familiar to anyone who has a grasp of the way litigation works, for the rest of us they are eye-opening -- and in most cases appalling. For example, Godwin describes the efforts of the Software Publishers Association to make Internet Service Providers themselves -- and not individuals using ISP services to post messages, software, webpages, etc., -- liable for any content that may infringe on copyright. Godwin is persuasive in his view that the SPA -- by filing suits, seemingly unfounded in copyright law, against various small ISPs -- sought to make ISPs themselves into a sort of "copyright police," a move similar to making B. Dalton responsible for making sure that the contents of its entire book inventory do not contain infringing material. The whole strategy of the litigation, Godwin believes, was for the SPA to "establish the kinds of measures the industry should take in response to complaints about copyright infringement," in this case, shifting the burden of enforcement to ISPs, a move that would have a chilling effect on ISPs ability to do business.

Throughout his legal analyses and case dissections, Godwin injects the dry wit and passion that anyone who has read his other writings, both online and off, have come to expect. His style and passion are what elevate the book to a level beyond mere utility. One of the most interesting sections of the book is Godwin's first person, blow-by-blow account of the 1995 cyberporn uproar fueled by Time magazine's cover story, which was based on Rimm online pornography pseudo-study published in the Georgetown Law Review. For almost 60 pages, Godwin details what was at times a personal crusade to calm the hysteria wrought by the Time story, and to uncover the shady details behind the authorship of the Rimm study. Although he writes that he's frustrated at never being able to figure out the "whole story" behind Rimm's motivations and connections to the anti-porn crusaders who helped push through the Communications Decency Act in 1996, Godwin provides much more of the story than most of us have heard previously. And his description of how he and others worked swiftly to discredit the story and the study using the resources of the various virtual communities in which he is active serves as a primer for anyone involved in online activism.

In the end, there are two central theses that emerge again and again that undergird Godwin's passionate championing of free speech, both on the Net and elsewhere. First, he believes that, given the right of free speech, most people will use it constructively, as a means of engaging in the give-and-take that is the hallmark of a democratic society. And second, Godwin shows that the First Amendment, and much of the law that has sprouted up over its application over the past few centuries, resolves most of the issues that are now arising on the Net. Or at least they do when applied properly, and when the technology and the dynamics of the Net are well understood. Since Godwin believes that much of the backlash against the Net is due to misunderstanding the dynamics of Net culture, he has taken it upon himself, with the publication of this book, to lift some of this veil of misunderstanding. And from the perspective of how the First Amendment applies to Internet culture, he succeeds.

While most will agree with the theses that Godwin advances, some might take issue with the force with which he champions the Net as a democratic, egalitarian sphere, a tool which, he says, everyone can use "to level the playing field, to hold media and political institutions accountable, and to tell the truth." Certainly from Godwin's perspective, the Net is egalitarian and democratic, and it does level the playing field for him; he has used it to fight his own battles with the powers that be, particularly with his efforts to hold Time accountable for fueling the cyberporn hysteria in 1995. But of course this is the perspective of a white male United States attorney who, everyone would agree, has a rare set of rhetorical skills, both online and off. Whether the Net is as democratic for those from other cultural positions, or not in possession of skills such as Godwin's, is a point of contention. This is not a criticism of the book, but rather a warning for those who might seek in Cyber Rights legal remedies for ethical or cultural dilemmas about discourse online. In any case, legal protections of free speech in cyberspace serve as the foundation on which issues such as egalitarianism and democracy, both online and off, can be debated. And we are all fortunate to have such a passionate defender of First Amendment issues in cyberspace working on our behalf.

Kevin Hunt (huntk@rpi.edu) is the book review editor for CMC Magazine.

Copyright © 1998 by Kevin Hunt. All Rights Reserved.