The First Amendment in cyberspace.

• Author: Sunstein, Cass R.
• Position: Emerging Media Technology and the First Amendment

I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.(1)

[T]he right of electing the members of the Government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.(2)

"[T]elevision is just another appliance. It's a toaster with pictures."(3)

1. THE FUTURE

   Imagine you had a device that combined a telephone, a TV, a camcorder, and a personal computer. No matter where you went or what time it was, your child could see you and talk to you, you could watch a replay of your team's last game, you could browse the latest additions to the library, or you could find the best prices in town on groceries, furniture, clothes--whatever you needed.

   Imagine further the dramatic changes in your life if:

   * The best schools, teachers, and courses were available to all students, without regard to geography, distance, resources, or disability;

   * The vast resources of art, literature, and science were available everywhere, not just in large institutions or big-city libraries and museums;

   * Services that improve America's health care system and respond to other important social needs were available on-line, without waiting in line, when and where you needed them;

   * You could live in many places without foregoing opportunities for useful and fulfilling employment, by "telecommuting" to your office through an electronic highway ...;

   ....

   * You could see the latest movies, play the hottest video games, or bank and shop from the comfort of your home whenever you chose;

   * You could obtain government information directly or through local organizations like libraries, apply for and receive government benefits electronically, and get in touch with government officials easily ....(4)

   Thus wrote the Department of Commerce on September 15, 1993, when the federal government announced an "Agenda for Action" with respect to "the National Information Infrastructure."(5) The statement may seem weirdly futuristic, but the nation is not at all far from what it prophesies, and in ways that have already altered social and legal relations and categories.

   Consider the extraordinarily rapid development of the institution of electronic mail, which lies somewhere between ordinary conversation ("voice mail") and ordinary written communication ("snail mail" or "hard mail"), or which perhaps should be described as something else altogether. E-mail has its own characteristic norms and constraints. Those norms and constraints are an important part of the informal, unwritten law of cyberspace. The norms and constraints are a form of customary law, determining how and when people communicate with one another.(6) Perhaps there will be a formal codification movement before too long; certainly the norms and constraints are codified in the sense that, without government assistance, they are easily accessible by people who want to know what they are.(7)

   The Commerce Department's claims about location have started to come true. What it meant to "live in California" became altogether different, after the invention of the airplane, from what it meant in (say) 1910. With the advent of new communications technologies, the meaning of the statement, "I live in California" has changed at least as dramatically. If people can have instant access to all libraries and all movies, and if they can communicate with a wide range of public officials, pharmacists, educators, doctors, and lawyers by touching a few buttons, they may as well (for most purposes) live anywhere.

   In any case, the existence of technological change promises to test the system of free expression in dramatic ways. What should be expected with respect to the First Amendment?

2. THE PRESENT: MARKETS AND MADISON

   There are two free speech traditions in the United States, not simply one.(8) There have been two models of the First Amendment, corresponding to the two free speech traditions. The first emphasizes well-functioning speech markets. It can be traced to Justice Holmes' great Abrams dissent,(9) where the notion of a "market in ideas" received its preeminent exposition. The market model emerges as well from Miami Herald Publishing Co. v. Tornillo,(10) invalidating a "right of reply" law as applied to candidates for elected office. It finds its most recent defining statement not in judicial decisions, but in an FCC opinion rejecting the fairness doctrine.(11)

   The second tradition, and the second model, focuses on public deliberation. The second model can be traced from its origins in the work of James Madison,(12) with his attack on the idea of seditious libel, to Justice Louis Brandeis, with his suggestion that "the greatest menace to freedom is an inert people,"(13) through the work of Alexander Meiklejohn, who associated the free speech principle not with laissez-faire economics, but with ideals of democratic deliberation.(14) The Madisonian tradition culminated in New York Times v. Sullivan(15) and the reaffirmation of the fairness doctrine in the Red Lion case,(16) with the Supreme Court's suggestion that governmental efforts to encourage diverse views and attention to public issues are compatible with the free speech principle--even if they result in regulatory controls on the owners of speech sources.

   Under the marketplace metaphor, the First Amendment requires--at least as a presumption--a free speech market, or in other words a system of unrestricted economic markets in speech. Government must respect the forces of supply and demand. At the very least, it may not regulate the content of speech so as to push the speech market in its preferred directions. Certainly it must be neutral with respect to viewpoint. A key point for marketplace advocates is that great distrust of government is especially appropriate when speech is at issue. Illicit motives are far too likely to underlie regulatory initiatives. For the marketplace model, Tornillo(17) is perhaps the central case. The FCC has at times come close to endorsing the market model, above all in its decision abandoning the fairness doctrine.(18) When the FCC did this, it referred to the operation of the forces of supply and demand, and suggested that those forces would produce an optimal mix of entertainment options.(19) Hence former FCC Chair Mark Fowler described television as "just another appliance. It's a toaster with pictures."(20) Undoubtedly, the rise of new communications technologies will be taken to fortify this claim.(21)

   Those who endorse the marketplace model do not claim that government may not do anything at all.(22) Of course government may set up the basic rules of property and contract; it is these rules that make markets feasible. Without such rules, markets cannot exist at all." Government is also permitted to protect against market failures, especially by preventing monopolies and monopolistic practices. Structural regulation is acceptable so long as it is a content-neutral attempt to ensure competition. It is therefore important to note that advocates of marketplaces and democracy might work together in seeking to curtail monopoly. Of course, the prevention of monopoly is a precondition for well-functioning information markets.

   Government has a final authority, though this authority does not easily fall within the marketplace model itself. Most people who accept the marketplace model acknowledge that government is permitted to regulate the various well-defined categories of controllable speech, such as obscenity, false or misleading commercial speech, and libel.(23) This acknowledgment will have large and not yet explored consequences for government controls on new information technologies. Perhaps the government's power to control obscene, threatening, or libelous speech will justify special rules for cyberspace.(24) But with these qualifications, the commitment to free economic markets is the basic constitutional creed.

   Many people think that there is now nothing distinctive about the electronic media or about modem communications technologies that justifies an additional governmental role.(25) If such a role was ever justified, they would argue, it was because of problems of scarcity. When only three television networks exhausted the available options, a market failure may have called for regulation designed to ensure that significant numbers of people were not left without their preferred programming.(26) But this is no longer a problem. With so dramatic a proliferation of stations, most people can obtain the programming they want, or will be able to soon.(27) With cyberspace, people will be able to make or to participate in their own preferred programming in their own preferred "locations" on the Internet. With new technologies, perhaps there are no real problems calling for governmental controls, except for those designed to establish the basic framework.

   The second model, receiving its most sustained attention in the writings of Alexander Meiklejohn,(28) emphasizes that our constitutional system is one of deliberative democracy. This system prizes both political (not economic) equality and a shared civic culture. It seeks to promote, as a central democratic...