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Freedom Versus Freedom
The Internet may soon drive a wedge between those who want to ensure online privacy rights and those who favor total freedom of speech in cyberspace. The past two weeks have seen three separate court decisions heighten the dilemma for those defending civil liberties in the information age, decisions that could make it more difficult for legislators to understand the boundaries of constitutionality are when it comes to controlling the World Wide Web.
The decisions each come from different schools of thought about the relative merits of preserving privacy, guarding free speech, and halting the sexual exploitation of children. Many argue that these disparities will ultimately have to be reconciled by the Supreme Court or by Congress.
"Our landmark decisions are going to come from speech over the Internet," said David Hudson, an attorney with the Freedom Forum's First Amendment Center at Vanderbilt University. "There is a good chance that one, two, or all three of these cases will reach the Supreme Court."
In the first case, a federal jury in Portland OR rendered a $107 million civil judgement Feb. 2 against the anti-abortion Web site The Nuremberg Files. The site posted names and addresses of abortion providers; when a doctor on the list was slain, as at least two have been, the site's proprietors drew a line through the name. Attorneys for Planned Parenthood successfully argued that this crossed the line and was an unlawful threat.
But the Nuremberg site posed a dilemma for groups like the American Civil Liberties Union and the Electronic Privacy Information Center. While priding themselves on fighting for online privacy, they have also promoted a rather expansive definition of freedom of speech online.
"This case pits two of the interests we care very deeply about, free speech and privacy, and the courts need to look very closely at the specific factual setting," said David Sobel, an EPIC attorney who joined the ACLU in the second case, which attacked the Child Online Protection Act. Judge Lowell Reed issued a temporary injunction against the law Feb. 1 in Philadelphia, saying it trampled on the free speech rights of adults.
"The cases are related only in the sense of whether it is speech or conduct," said Barry Steinhardt, associate director of the ACLU, whose local affiliate filed a friend-of-the-court brief in the Planned Parenthood suit. "These are the lines that have to be drawn" as the battles over free speech and privacy mature.
While the two organizations received widespread publicity for the temporary injunction in the COPA case, they have also come out against the less controversial Child Pornography Prevention Act of 1996. Sponsored by Sen. Orrin Hatch R-UT, the law was designed to outlaw computerized images of children engaged in sexual activity, even if the images are simply digital creations by an artist. The first criminal prosecution under the law, of David Hilton of Maine last year, resulted in a federal district court declaring CPPA unconstitutional. On Jan. 28, the First Circuit Court of Appeals reversed that decision, arguing that the computerized depictions could still be used to "further the child pornography trade or to facilitate the abuse of children."
The already-complicated legal trail could grow even more treacherous. CPPA faces a separate legal challenge from the Free Speech Coalition, a southern California-based lobbying group representing the makers of pornographic videos. Their lawsuit is currently before the Ninth Circuit Court of Appeals. If the California-based court rules the statute unconstitutional, legal experts agree that the Supreme Court would be virtually certain to take the case in order to resolve the discrepancy.
Yet notwithstanding the disparate facts and legal backgrounds for each of the three recent decisions, together they contribute to uncertainty on the part of legislators about concerning what is and isn't permitted, constitutionally speaking. Rep. Jim Greenwood R-PA, one of the authors of COPA, said that he expects guidance from the Supreme Court that is "detailed enough so that we could revise the legislation to meet the court's guidance." He and co-sponsor Rep. Michael Oxley R-OH argue that their measure was deliberately crafted in a way that would allow it to survive constitutional muster. But signaling the heightened political nature of the dilemma, and the disinclination of members of Congress to be tarred by association with issues such as abortion and pornography, several representatives declined the opportunity to say where they would come out on these issues.
Some observers are beginning to point to these decisions as an example of the fact that the Internet has lost some of its luster. "The good lesson of these cases is that whether you are pro- or anti-abortion, whether you commit land fraud or software piracy, you are not going to get immunity just because you do it on the Net," said Bruce Taylor, president of the National Law Center for Children and Families in Arlington VA. "It brings a ray of reality to the cyberfreaks and netizens who think they have a great new medium in cyberspace, and are floating above reality believing the laws don't apply to them," he said.
"I strongly disagree with giving broader First Amendment protection to the Internet than to print medium," said Jan LaRue, senior director for legal studies at the Washington-based Family Research Council. LaRue argues that the restraining order against COPA excessively broadens this freedom of speech protection. But as regards the Nuremberg Web site, she argued that the judge erred in encouraging jurors consider the context of the site rather than seeking to establish an immediate and direct connection between words and lawless action. "If you look at the COPA decision alongside the Nuremberg decision, they are totally incompatible," said LaRue. "The judge's jury instruction went much beyond what courts have looked at as an imminent peril."
But considering previous precedents may obscure what appears to be genuinely unique about the Nuremberg Web site: the publication of personally identifying information in a context far removed from that for which it was provided.
"Privacy is the real issue in the Nuremberg case," said Jonathan Zittrain of the Berkman Center for Internet and Society at Harvard University. "It is entirely new to gather information that, standing alone, would be innocuous. But when you take it and package it next to words like 'butcher' and 'here is where their kids go to school'," freedom of speech comes in direct conflict with privacy rights.
Daniel Weitzman of the Cambridge MA-based World Wide Web Consortium states puts the dilemma in technological terms. "You have a whole series of regulatory regimes which rely on centralized production of content, which was appropriate given that publications were structured and came from a central location," he said. The decentralized information gathering of the Internet instead calls for tools, particularly content filters, which can still permit some degree of control on the part of consumers. "The critical difference of the Web is that it is harder and harder to regulate material at the source, but easier and easier for consumers to regulate it coming in."
 | - by Drew Clark |
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