Rights, camera, action: cyberspatial settings and the First Amendment.

• Author: Katsh, M. Ethan
• Position: Emerging Media Technology and the First Amendment

Visit the Pentagon, or the New York Times, and everywhere there are

maps, solemnly defining national borders and sovereign territories. No

one shows any signs of knowing that we no longer live in geographic

time and space, that the maps of nations are fully as obsolete as the

charts of a flat earth, that geography tells us virtually nothing of

interest about where things are in the real world.(1)

George Gilder

Each technology gives us a different space.(2)

Jay David Bolter

Consider the experience of the anthropologist Edward Hall. Some years ago, while on a research trip to Japan, Hall returned to his hotel one day, went up to his room, opened the door, and found that while it was the room he had been living in, someone else's belongings were there. Hall took this in for a few moments, all the time feeling uncomfortable, indeed feeling that somehow he must be in the wrong place, and that he would be found and accused of being in someone else's room. He then went down to the desk where he was told that his room and his belongings had been moved. He was given a new key, went up to his new room, and found that all of his possessions had been laid out for him in just about the same way he had left them in the first room. There was a marked resemblance to the room and the arrangement and yet, he could feel, much was different as well.3

As an anthropologist Professor Hall understood that what was important about his experience went beyond the nature of the artifacts in his new space. He realized that he was not only in an unfamiliar physical place but that he was in a culture and environment that he did not understand completely. He was no longer confident in what he could expect to occur in this space. Whose space was this, for example, and might he be moved again? Hall realized that the new environment had physical resemblances to what was familiar to him, but he also recognized that, because of strong environmental or cultural forces, his role as tourist/guest/renter had changed. Long-held assumptions about hotels no longer seemed to be valid and he became aware that his relationship with the hotel was different from what he had assumed it to be. What was his, what was shared, and what belonged to others were no longer as clear as they once had been.

Professor Hall, as he adapted to his new space, continued to wonder about what his new surroundings signified. He eventually left Tokyo, where the first hotel had been located, and visited Kyoto. He writes:

There we were fortunate enough to stay in a wonderful little

country inn on the side of a hill overlooking the town. Kyoto is much

more traditional and less industrialized than Tokyo. After we had been

there about a week and had thoroughly settled into our new Japanese

surroundings, we returned one night to be met at the door by an

apologetic manager who was stammering something. I knew

immediately that we had been moved, so I said, "You had to move

us. Please don't let this bother you, because we understand. Just show

us to our new rooms and it will be all right." Our interpreter

explained as we started to go through the door that we weren't in that

hotel any longer but had been moved to another hotel. What a blow!

Again, without warning. We wondered what the new hotel would be

like, and with our descent into the town our hearts sank further.

Finally, when we could descend no more, the taxi took off into a part

of the city we hadn't seen before. No Europeans here! The streets got

narrower and narrower until we turned into a side street that could

barely accommodate the tiny Japanese taxi into which we were

squeezed. Clearly this was a hotel of another class. I found that, by

then, I was getting a little paranoid, which is easy enough to do in a

foreign land, and said to myself, "They must think we are very

low-status people indeed to treat us this way."

As it turned out, the neighborhood, in fact the whole district,

showed us an entirely different side of life from what we had seen

before, much more interesting and authentic. True, we did have some

communication problems, because no one was used to dealing with

foreigners, but few of them were serious.(4)

Hall again understood that what was causing him difficulty was not only the physical inconvenience of being moved but his concern over what it meant that he had been moved. Any space, he realized, was not simply a physical location but a cultural environment with embedded norms and values. Ultimately, he learned that being moved did not have the same significance as being moved might have in the United States. Hotel space looked the same but it was being governed by some different conventions and values. Indeed, far from according him a low status, he learned that the hotel managers who moved him were treating him quite respectfully. He writes that "[t]he fact that I was moved was tangible evidence that I was being treated as a family member--a relationship in which one can afford to be 'relaxed and informal and not stand on ceremony.(5)

This Essay focuses more on how to understand and approach the new information technologies than on how to regulate them. As the title of this Symposium indicates, we are in a period of "emerging technologies." In Part I of this Essay, I suggest that these new technologies are not simply tools or functional artifacts but are the components of a new cultural space. New technologies change our relationship with information, as well as our capabilities for working with information. In this new environment or space there are similarities with how information was used in the past, but there are also new assumptions and expectations about information and new uses for information that have implications for the future of the First Amendment.(6) Part II describes four technological capabilities of the new media that set the new "electronic culture" apart from "print culture" and that alter the context in which different First Amendment issues will arise and be considered. Computer networks, interactive machines, new modes of visual communication, and hypertext expand individual and group opportunities for working with information and, in the process, build an environment that contrasts significantly with "print culture." Part III reviews some historical links between print and the First Amendment and focuses attention on two facets of the new electronic culture that have First Amendment implications: the emergence of new metaphors to describe the informational environment with which the First Amendment is concerned, and the development of new entities and relationships that are being fostered by the new media and by what is increasingly being labeled as cyberspace.(7)

1. Displacement and the Culture of Cyberspace

   The new technologies, in ways I shall explain below, enable us to expand our capabilities for processing, storing, organizing, representing, and communicating information in rather extraordinary ways. In this transition period it is not surprising that these technologies are perceived as tools, as hardware and software, as artifacts whose primary impact is to accelerate greatly the performance of informational tasks. Yet, as electronic technologies displace print technologies as the principal means for working with information, they also displace print as the principal means for thinking about information. As I shall explain below, new technologies influence the cultural as well as the physical. In addition to providing new opportunities for working with information, they contribute to shifts in the value of information, in the language used to describe information, in customs used to employ information, in expectations about how information will be used, and in norms that are applied to information and communication.(8)

   The theme of this Essay is that the challenge posed by the new technologies to the First Amendment is cultural(9) as well as doctrinal.(10) While doctrine evolves over time as a result of legislative or judicial actions, a new technology changes the backdrop against which constitutional conflicts arise. As Frederick Schauer has observed, "Legal rules and principles commonly contain not only normative determinations about what ought or ought not happen under certain circumstances, but also background factual assumptions about the nature of the world."(11) Whether we are in a new room or a new hotel may not yet be clear, but whatever space we are entering contains different understandings about the role and nature of information, different institutions for communicating information, different assumptions about the use of information, different customs about the propriety of information use, and, perhaps, different goals for regulating information. As cyberspace continues to be developed it will increasingly be the place where information transactions of all kinds occur and it will be a place that affects our understanding and valuation of informational activities occurring in physical places.

   For those actively involved with the new technologies, there is a growing awareness that we have moved and are in a new place that provides new capabilities, opportunities, and experiences. Joshua Meyrowitz has pointed out that "media, like physical places, include and exclude participants. Media, like walls and windows, can hide and they can reveal. Media can create a sense of sharing and belonging or a feeling of exclusion and isolation."(12) For this reason, he suggests:

   [P]hysical settings and media "settings" are part of a continuum rather

   than a dichotomy. Places and media both foster set patterns of

   interaction among people, set patterns of social information flow.

   Thus, while places create one type of information-system--the

   live encounter--there are many other types of situations created by

   other channels of communication. This wider view of situations as

   information-systems, rather than as places, is especially relevant to the

   study of electronic...