Technologies of protest: insurgent social movements and the First Amendment in the era of the Internet.

• Author: Kreimer, Seth F.

INTRODUCTION

In each era of American history, distinctive forms of organization and communication have characterized insurgent social movements. Revolutionary agitation against Great Britain made use of committees of correspondence, boycotts, liberty poles, and pamphlets. Abolitionists published newspapers, wrote books, evolved networks of religious congregations, and developed the Underground Railroad. The labor movement wielded the strike, the paid organizer, the boycott, the "free speech fight," and the mass rally, while the Civil Rights movement supplemented these tactics with civil disobedience and protest marches organized in large part through networks of African-American churches and chapters of the NAACP.

These repertoires of protest have been a function of tradition and social context, (1) but specific technological developments--and here I use the term "technology" to include modes of organization as well as machinery--have spurred particular leaps in insurgent activity. The explosion of membership in the Ku Klux Klan during the 1920s was triggered by the adoption of a commission marketing scheme]. (2) The portable phonograph made possible the Jehovah's Witness campaigns of the 1930s; (3) the radio underlay Father Coughlin's contemporaneous success in building a mass movement. (4) National television networks gave force to the use of civil disobedience by the Civil Rights movement. (5) In the last generation, the availability of photocopying and desktop publishing allowed the development of alternative "zines" and the associated "Riot Grrrl" movement, (6) while computers, high-speed printers, and direct-mail technology facilitated the development of independent and bureaucratized single-issue advocacy organizations on both the Left and the Right. (7) The elimination of the Fairness Doctrine in 1987 allowed the evolution of politicized "talk radio" that has served as a network of right-wing mobilization. (8)

Few prior elements of the American repertoire of protest have faded away (though liberty poles are rarely seen), (9) but at the turn of the millennium, the Internet has clearly emerged as a dominant development in the technology of communications. This Article begins to explore the implications of this emergence for the repertoire of protest in the United States and the attendant First Amendment issues.

1. "POORLY FINANCED CAUSES OF LITTLE PEOPLE"

   Before the advent of the Internet, A.J. Liebling famously observed that "[f]reedom of the press is guaranteed only to those who own one." (10) Given the structure of twentieth-century communications media, established or well-financed contenders in the public arena came to the contest for authority with a built-in advantage: the cost of disseminating arguments or information to a broad audience threatened effectively to exclude outsiders from public debate. The repertoires of protest, as they have developed in twentieth-century America, in large part have been keyed to the need to develop methods of organization and communication to reach the public without large capital expenditures. Picketing, leaflets, and rallies on public property allowed the labor movement to organize without relying on newspapers with hostile owners or expensive meeting halls; civil rights organizers used marches, boycotts, and sit-ins, all of which built on existing internal organization to reach an otherwise unavailable national audience. The Supreme Court, at its most appealing, has been sensitive to this dynamic; in a series of cases, the Court has taken special pains to provide protection against government interference with mechanisms of communication that are, as Justice Black put it, "essential to the poorly financed causes of little people." (11) Citing the importance of these "historic weapons in the defense of liberty," the Court on occasion has protected the right to disseminate leaflets in public thoroughfares and door to door, (12) the right to picket, (13) the right of access to public property for rallies and demonstrations, (14) the right to engage in politically based boycotts, (15) the right to post signs on one's own property, (16) and the right to distribute anonymous literature. (17)

   At one level, the growth of the Internet in the past five years has changed this dynamic, for while few citizens own their own printing press, almost any social movement can put up a website. Access to the Internet lowers the cost of producing and disseminating information and argument, and hence the capital required to enter public dialogue. As the Supreme Court rhapsodized in Reno v. ACLU about the "vast democratic forums of the Internet," "[i]t provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that `[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." (18) The Court continued:

   Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.... "[T]he content on the Internet is as diverse as human thought." (19) As a first approximation, this effect would appear unambiguously to benefit insurgent social movements. Certainly, in the last five years, the presence of insurgent movements on the Internet has multiplied at a remarkable pace. From neo-Nazism and Christian Identity to gay liberation and disability rights, from libertarians, home schoolers, and property-rights enthusiasts, to environmentalists, Zapatistas, and anti-corporate activists, it is hard to find an aspiring social movement, new or old, of left, right, or center, without a website, a bulletin board, and an email list. (20) This global access in turn facilitates challenges to the status quo.

   1. "Direct Access"

      In the past, intermediary institutions stood astride access to the mass public. Those who controlled newspaper chains or political parties could filter or block insurgent messages. During the 1930s, both Father Coughlin on the Right and Franklin Roosevelt on the Left used direct radio broadcasts as pathways to the public that avoided the interposition of hostile newspaper chains." (21) So, today, insurgent web sites make directly available to potential listeners information and analysis that is not carried in the mainstream press.

      In the summer of 2000, I found myself in California during the demonstrations surrounding the Republican National Convention in Philadelphia. Commercial news media and the websites of 24-hour news services offered some coverage of the convention proceedings, but only occasional glimpses of the protests in the streets. My access to information, however, was not tied to the lens of the network television cameras. The protestors and their allies had established a separate website that provided real-time reports and visual images of ongoing confrontations between protestors and police. (22)

      Similarly, during the weeks of legal and political maneuvering surrounding the Florida ballots in the 2000 presidential election, I found that the most timely sources of information did not come from established national news media. Rather, I combined information from the constitutional law professors' email list and the right-wing "freerepublic.com" website, which encourages a dispersed array of "members" to post copies of news stories and public documents on a central bulletin board. (23) While I admit that constitutional law professors are not (yet) an insurgent social movement, and that the free republicans are more fellow travelers of the current administration than embattled outsiders, neither group is comprised primarily of mainstream political actors.

      The Web allows insurgent groups to make available a volume of information that could not conceivably have been carried by traditional media outlets. Thus, the Center for Responsive Politics posts an interactive list of contributors to political campaigns that can be searched by their contributing group, Political Action Committee (PAC), or industry, by candidate, or by contributor's zip code at its site, "opensecrets.org." In the years before the Internet, the group sold roughly 1000 copies of a far less detailed directory every year. At this point, the organization logs over 270,000 user sessions monthly. (24) Similarly, the Environmental Defense's website allows visitors to punch in their zip codes and discover the status of air and water pollution in their areas, along with the prevalence of lead contamination, waste disposal, and toxic waste sites, as well as the identity of local polluters and officials; (25) and the Home School Legal Defense Association provides state-by-state updates of proposed and pending legislation affecting home schooling. (26)

      Not only does the Internet allow insurgents to bypass the "soft" censorship of the mainstream media, but it allows evasion of the more direct efforts at suppression of information by local, state, or national authorities. Examples from abroad include the successful efforts by Zapatista rebels in Chiapas to display accounts of their activities to the world community on the Internet," (27) by Vietnamese dissidents to post banned novels," (28) and by Serbian Radio Station B-92 to substitute Web broadcasting for the radio reception that had been jammed by the Milosevic government]. (29)

      My favorite domestic example concerns the effort to suppress a program used to thwart the copy protection of movies sold on DVD. After Universal Studios and the Motion Picture Association of America (MPAA) had obtained an injunction prohibiting an online magazine from posting copies of the program at issue on its website, copies of the program appeared on websites around the world (including a website that featured the program embedded in the code of a portrait and rendered in haiku). (30)...