Now the short answer to much of this is that, as my colleagues put it, cyberspace *will* be able to punish people who annoy or harass - so long, that is, as the punishment is meted out by a private person, and not the government. But this distinction, useful in many contexts, strikes me as arbitrary here. If the government (and here I am thinking mainly of local governments) is just one of many suppliers of newsgroup space, and if it has a rule against harassing or offensive speech, so long as that rule is limited in its reach and neutral in its effect, I don't see why it would be terrible to permit it. There is a market for free speech places, and these places offer different combinations of protections and benefits. It might well be that civility norms are especially necessary to get speech in cyberspace going - or more accurately, to keep a diversity of people in it - and it doesn't strike me as terrible if government, to achieve a useful diversity of views, could enforce these. This is not to say that it should, and certainly not to say that it should everywhere. But if it did so on a relatively local basis - for particular groups, for particular topics - this might advance a diversity of views, rather than allowing the IBEX's of the world to silence them.
A similar question lurks in the background of intentional infliction of emotional distress claims. Here again, the Supreme Court has reformed much of traditional state tort law, to give newspapers and publishers the freedom to speak without fear of perpetual litigation - so long, that is, as the speech at issue is of public concern, or so long as the person being spoken of is a public figure, and so long as they did not utter or publish a knowing falsehood (see an earlier post at /cyberlaw/libe03.html). If the speech is not of public concern, or if the person is not a public figure, then the Court has not interfered in the state's power to protect individuals against the harm that speech creates. It has neither interfered with traditional libel actions, nor with traditional actions for the intentional infliction of emotional distress.
Unlike my colleagues, I don't see this line between public and non-public concern, as inherently unstable, and I believe much speech in the cyberspace context will be considered private, rather than public concern. If states wanted to pass "tame zone" laws, where people, in certain newsgroups, would be protected against the intentional infliction of emotional distress claims, I don't see the compelling reason why the Court should interfere. So long as there are plenty of other spaces, allowing the state to zone a emotional distress free zone in cyberspace doesn't strike me as a terrible cost - especially if the alternative is that these very same people would, without these laws, simply not enter cyberspace in the first place.
Underlying both of my objections is an idea that might by summarized like this: Much of free speech law has been driven by the fear of government as censor, and by the concern that the government's power, relative to the speaker, is so great. But the very nature of cyberspace changes this. In my view, not only is the government less of a censoring threat, but private entities (through their control of the code constituting cyberspace) are more of a threat. The first half of this change leads me to believe that local governments at least should be relatively free of first amendment rules within this narrow area of speech doctrine. The second half makes me wish private entities were not. But while I doubt the Court will respond to the second half, I do predict they will be more sensitive to the first.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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