Free Expression In The Age Of The Internet

Social And Legal Boundaries

Jeremy Lipschultz

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780813391083
• eBook ISBN: 9780429980008
• Topic: Ciencias sociales
• Subtopic: Sociología

In Free Expression in the Age of the Internet, Jeremy Lipschultz investigates the Internet and its potential for profound change, analyzing the use of its technology from social, political, and economic perspectives. Lipschultz provides new insights on traditional legal concepts such as marketplace of ideas, social responsibility, and public interest, arguing that from a communication theory perspective, free expression is constrained by social norms and conformity. In Free Expression in the Age of the Internet , Jeremy Lipschultz investigates the Internet and its potential for profound change, analyzing the use of its technology from social, political, and economic perspectives. Lipschultz provides new insights on traditional legal concepts such as marketplace of ideas, social responsibility, and public interest, arguing that from a communication theory perspective, free expression is constrained by social norms and conformity. Lipschultz explores social limits on free expression by first examining history of print and electronic media law and regulation. He utilizes the gatekeeping metaphor, the spiral of silence, and diffusion theory to explore current data on the Internet. He uses Reno v. ACLU (1997) as a case study of current First Amendment thinking. This book includes recent evidence, including samples of content from Internet gossip columnist Matt Drudge, and the investigation of President Clinton as it unfolded on the World Wide Web.The analysis is related to broader issues about Internet content, including commercial and other communication. The new technologies raise new questions about legal and social definitions of concepts such as privacy. Free expression is explored in this book under the umbrella of a global, commercial economy that places importance on legal rights such as copyright, even where those rights limit free flow of ideas. The Internet places free expression on two tracks. On the one hand, corporate players are developing cyberspace as a new mass media. On the other hand, the Internet is virtual space where individuals have the power to connect and communicate with others in ways never before seen. This groundbreaking text advancing new media scholarship uses the most current case studies from the Internet to show free expression in practice today. Lipshultz presents a relevant and efficacious social communication theory of free expression which critically examines the necessary factors involved in comprehensive policy analysis and enactment.

1
Social Communication Theory of Free Expression

Politics and the Internet

"One thing that will not change in a world of vastly increased interpersonal communications networks is that the day has only 24 hours."

—Ithiel de Sola Pool, media scholar (1990)

"The penetration of time, the use of time as a mechanism of control, the opening of time to commerce and politics has been radically extended by advances in computer technology."

—James W. Carey, cultural theorist (1992)

"The beauty of the Net is that one does not have to screen everything through a publisher and editor before reaching the audience."

—Fred Lawrence, law professor (1997)

"Such a decentralized system... resonates with. .. the central American credo of liberal individualism. Its great virtue is that it is designed to allow everyone to do his own thing. And that, according to some, is its great vice."

—Glen O. Robinson, law professor (1996)

"The Internet is clearly the political football of the nineties. The Communications Decency Act (CDA) as well as presidential pledges to wire all schools to the Internet are representations of this idea."

—Henry E. Crawford, lawyer (1997)

"The Supreme Court should provide clear guidance that we do not forfeit our First Amendment rights when we go on-line."

—Patrick Leahy, U.S. senator (1997)

"In my ignorance, I have to accept the possibility that if we had to decide today just what the First Amendment should mean in cyberspace, we would get it fundamentally wrong."

—David Souter, U.S. Supreme Court justice (1997)

"The Internet is presenting us with some cases we have never seen before."

—Al Gore, U.S. vice president (1999)

The great threat to free expression today, it has been argued, is not the power of government but rather the control and manipulation of information exercised by private industry: "Even in a democracy, even with all the late-twentieth-century panoply and paraphernalia of real-time worldwide communication (into every home), it is entirely possible to create a virtual screen of reverse reality between the great majority of all human beings alive on the planet and a small but powerful minority" (Childers, in Gerbner, Mowlana, and Schiller, 1996, p. 176). Reformers make the case that we need "a measure of autonomy from the state without delivering the press totally and completely to the vicissitudes of the market" (Fiss, 1996, pp. 157–158). Such critical perspectives on mass media raise obvious yet minimally explored questions about traditional First Amendment thinking and its emphasis on the "search for truth," "social responsibility," and "the marketplace of ideas." If mass media exist primarily to promote commerce in the marketplace and if social management and control are central to that end (Noelle-Neumann, 1995), then we need to reexamine the frameworks we use to understand free expression in light of the social, political, and economic realities.

From a cultural perspective, "social life is more than power and trade"—it involves the sharing of values and ritual: "Our existing models of communication are less an analysis than a contribution to the chaos of modern culture, and in important ways we are paying the penalty for long abuse of fundamental communicative processes in the service of politics, trade, and therapy" (Carey, 1992, p. 34). Historically, most mass technologies have not been used as tools to improve communication in meaningful ways, but the Internet has the potential to, in James Carey's words, reshape "our common culture" (p. 35). In this sense, free expression is at an important crossroads. The important question for individuals today is whether the new communication tools will be utilized for sharing between peoples or whether they will be manipulated and abused in the name of power and commerce. R. Williams's (1966) thesis is that society traditionally has been seen in terms of power, government, property, production, and trade but that there is a new emphasis today: "Society is a form of communication, through which experience is described, shared, modified, and preserved" (p. 18).

The information age has been forged in a social context: "Because we have seen our cities as the domain of politics and economics, they have become the residence of technology and bureaucracy" (Carey, 1992, p. 34). Just as in the politics of land, in which geography and growth work in the interest of a real estate market, the politics of cyberspace has much to do with the interests of those developing and "homesteading" this new electronic "frontier" through computer-mediated communication (CMC) (Fernback, in Jones, 1997, p. 36): "Cyberspace is an arena of power; CMC users act every day on the assumption that the tyranny of geography can be overcome within cyberspace.... Cyberspace is essentially a reconceived public sphere for social, political, economic, and cultural interaction" (p. 37).

The assumption is that communication involves more than a simple transmission of ideas and that language is what makes us human: "To grasp hold of the popular arts with terms like myth, ritual, pilgrimage, liminality, story, narrative, chronicle ... is to see in a miraculously discontinuous world persistent practices by which that world is sedimented and held together" (Carey, 1988, p. 15). Traditional free-expression thought, however, has been dominated by legal scholars, with their emphases on the marketplace of ideas, clear-and-present danger tests, national security and prior restraint issues, literalist interpretations of the First Amendment versus balancing models, and legal issues involving subsequent (e.g., libel and invasion of privacy case law) punishment for speech (Fraleigh and Tuman, 1997). Although the legal model has successfully served to restrain government abuses against free speech, it denies the power of multinational corporations. The normative legal model objectifies ideas in a way that makes no real distinctions between society, culture, democracy, understanding, and community.

The postindustrial world in which telecommunication takes place involves a fundamental political struggle, particularly for the developing nations: "Electronic colonialism is the dependency relationship established by the importation of communication hardware, foreign-produced software, along with engineers, technicians, and related information protocols, that vicariously establish a set of norms, values, and expectations which, in varying degrees, may alter the domestic cultures and socialization processes" (McPhail, 1981, p. 20). Today, we must go further and say that a global information order may be as much the source of control as the source of liberation. The social communication theory of free expression should give us a way in which to think about how and why people choose to speak out or not; under what circumstances mass media amplify, muffle, and distort free expression; and what roles public opinion, mass persuasion, marketing, advertising, and consumer behavior play in the development and movement of "ideas." We must address not only government and private control of free expression but also economic and social components. Individuals communicate in a social world—one with both legal and social boundaries. The Internet, in this sense, is a metaphor for our desire to "connect" with one another. Consumption and entertainment, however, demand our most precious resources—time and money.

An appropriate starting point for the discussion of social theory is Nick Stevenson's (1995) eloquent synthesis of political economy and ideological theories of mass communication. In his view, the Marxist emphasis of "social reproduction of the status quo" is contrasted with the assumptions of classical liberalism:

Whereas liberalism has argued that the mass media have an essential role to play in the maintenance of free speech, Marxism has charged that unequal social relations have helped form the ideological images and representations of society.... Marxists have rightly criticized liberal accounts for assuming that the free exchange of ideas could take place in conditions of class domination (p. 9).

In the broadest sense, social theory, as C. Lemert (1999) described it, is "the normal accomplishment of adept human creatures figuring out what other creatures of the same sort are doing with, to, or around them" (p. 2). It inevitably deals with the observation of power. In this sense, it is a theory that can be applied to real life, particularly under conditions of social change. Lemert selected French theorist Jean Baudrillard's 1983 work as an example of how social theory is utilized as a critique of modern culture. Baudrillard wrote, "Representation starts from the principle that the sign and the real are equivalent. .. . Conversely, simulation starts from the Utopia of this principle of equivalence .. . simulation envelops the who edifice of representation as itself a simulacrum" (Lemert, 1999, p. 484). The hyperreal or imaginary world of Disneyland is one of Baudrillard's examples of confusion about what is "real."

Likewise, I will argue that cyberspace serves to confuse reality for people by placing value in virtual space. One group has suggested that we live in a time of "transformation politics"—an era that demands that scholars employ theory, study, and practice (Woolpert, Slaton, and Schwerin, 1999). This book will actively mix theory, study, and practice in order to depict free expression on the Internet as a culturally transforming process and one that inevitably involves a struggle.

A social communication theory of free expression should evolve from the following challenges to normative tradition:

1. Free expression is not the product of an idealistic search for "truth" or objective reality but rather is subjective by its very nature. Individuals interpret (encode and decode) speech, which must be studied in a social context. "Society-wide mass communication" resides along with institutional, organizational, intergroup, interpersonal, and intrapersonal processes: "Alternative society-wide and public networks are now rare [but] may still develop, especially informally, under conditions of restricted access to mass media channels" (McQuail, 1994, p. 7).
2. Free expression is not only understood in terms of its presumed psychological value to individuals but also is a component in a social, political, and economic system. In the shift from traditional to contemporary society, we see "increases in social differentiation and psychological isolation in urban-industrial populations brought about by such factors as bureaucracy, contracts, migration, stratification, and the spread of innovation" (Lowery and DeFleur, 1995, p. 11, emphasis in source). We communicate to have identity.
3. That which passes for "free expression" in no way resembles what might be at the fringes because all speech is limited by a variety of social constraints, both real and imagined. E. Noelle-Neumann (1984) contended that we attend to the social world around us and check our speech: "It is fear of isolation, fear of disrespect, or unpopularity; it is a need for consensus" (p. 62).
4. Popular concepts such as "social responsibility" and "the marketplace of ideas" have no utility in learning about free expression, except to the extent that individuals adopt and use these notions as tools of political power or as a way to make democracy function in the search for consensus. W. L. Bennett (1996) framed the central question: "How will democracy cope with news that is ever more standardized and politically managed at its source, while becoming ever more personalized and socially isolated at its destination?" (p. XI, emphasis added).

The purpose of this book is to examine free expression in a broad social, cultural, and legal context and to relate thinking to dramatic technological changes in recent decades. As N. Negroponte (1995) noted, "being digital" means being affected by both technological and social change. It has been predicted that the twenty-first century will bring "a distinct psychological shift from a dependence on visual, uniform, homogenous thinking ... to a multi-faceted configurational mentality" (McLuhan and Powers, 1989, p. 86). The Internet is one vehicle for understanding the nature of free expression.

It is also important to relate the new technologies to a historical context of marketplace thinking, traditional print and broadcast models, normative versus social theories, current legal issues, Internet content, personal forms of free expression, privacy issues, commercial rights, global concerns, and the future of expression after the Internet. The technological focus of Marshall McLuhan is instructive: "McLuhan insists, again and again, that the study of the way technical forms of media shape human perception constitutes the most important theoretical issue facing media studies today" (Stevenson, 1995, p. 117). Although the medium may not entirely turn out to be the message in a deterministic sense, Stevenson found that it may come to affect the very structuring of private and public life. In the case of the Internet, it will be argued here that though message content has significance, the acts of daily checking one's e-mail and Listservs also are important. This is because the Internet serves the postmodern requirements to magnify social differentiation. When we use the globally connected hardware and software to communicate with others alienated by conditions of the information age, we search for communities linked by interest rather than geography. The harshness of a consumer-based culture is thus softened by open communication in a way that reminds us that "we are not alone." Still, we ultimately must retreat to the dominant cultural values found in the materialistic "needs" of the day; the marketing of needs through social codes, as exercised on commercial World Wide Web pages, is "used to signify distinctions of status and prestige"—distinctions that help to socially define us (Stevenson, 1995, p. 149).

Howard Rheingold's (1994) mostly optimistic view of the electronic frontier was tempered by the emergence during the 1990s of corporate web sites: "The big players in business and government are newer at CMC [computer-mediated communication] than the Internet pioneers and BBSers [electronic bulletin board users], but they bring a lot more weight to bear on the market and on political regimes when they devote their resources to it" (pp. 301–302). The Internet offered a "potential" for unbridled free expression, but regulatory efforts and court cases challenged notions that cyberspace would be a lawless frontier (Foerstel, 1998, p. 42). The United States Supreme Court's 1999 decision to uphold a section of the Communications Decency Act of 1996 that makes it a crime to send obscene e-mails was evidence that existing legal tests would apply to the Internet. Annoy.com, a site that had allowed people to send anonymous and lewd electronic mail to public officials, unsuccessfully argued that the law was confusing. Rather than interpret the law, the Supreme Court simply sided with a lower court ruling: "The justices' one-sentence order affirmed the lower court and effectively endorsed the constitutionality of the e-mail provision" (Biskupic, 1999). In Apollomedia v. Reno, a San Francisco company challenged the section, 47 U.S.C. Sec. 223(a)(1)(A)(ii), that made it "a felony to use a telecommunications device to communicate anything that is 'obscene, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten, or harass another person.'" At issue was whether obscene and unprotected speech, as defined by Miller v. California (1973), should apply to the Internet and other digital technology. The conclusion that indecent but not obscene speech is protected by the First Amendment follows earlier broadcast decisions that attempted to limit media available to children. It also guaranteed that there would be legal efforts to treat cyberspace as geography open to zoning restrictions. At least two members of the Supreme Court have previously argued unsuccessfully that because computer servers exist in physical space, cyberspace is no different from the world around it. This book is about how cyberspace has become the legal battleground over the meaning of free expression in democratic and open societies.

Each chapter in this book begins with key ideas in the field of communication. The reader will then be guided to the prime concerns of the chapter. After each analysis, I will summarize the main points and raise discussion questions that the reader may explore with fellow "Netizens"—citizens of the digitally connected worldwide community, reflecting "the new non-geographically based social membership" (Hauben and Hauben, 1997, p. X).

The Internet in the late 1990s will be used as a case study to show how social communication theory can assist in understanding free expression as a component of political power. The purpose is to challenge traditional normative views and to substitute an empirically based view of free expression—one centered on our observations of the digital age. Some would say that "technology is now carrying us into the greatest age of mass communication the world has ever known" (Emord, 1991, p. XIII), yet we barely understand the devices used in the communication process:

Deep inside a computer are circuits that do those things by transforming them into mathematical language. But most of us never see the equations, and few of us would understand them if we did. Most of us, nevertheless, participate in this digital culture.... As far as the public face is concerned, "computing" is the least important thing that computers do (Ceruzzi, 1998, p.1).

In this book, freedom of expression is defined broadly as the freedom of individuals to communicate openly without obstruction from legal, governmental, corporate, or social forces. As I. S. Pool (1983) noted: "The onus is on us to determine whether free societies in the twenty-first century will conduct electronic communication under the conditions of freedom established for the domain of print through centuries of struggle, or whether the great achievement will become lost in a confusion about new technologies" (p. 10). However, I go further here by recognizing that even where legal and governmental restrictions do not exist, certain social conditions will tend to limit absolute free expression by individuals—a point highlighted by critical legal and social theorists. Traditional mass media have enjoyed rather broad rights of free expression, but these are communicators who may be manipulated and even controlled by existing power structures. It remains to be seen what will happen when the powerful must deal with millions or billions of "publishers" communicating through complex and unpredictable computer ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Illustrations
• Preface
• List of Acronyms
• 1 Social Communication Theory of Free Expression: Politics and the Internet
• 2 A Historical Look at Traditional Legal Thought on Free Expression
• 3 Broadcast Versus Print Models of Free Expression
• 4 Normative Legal Versus Social Theory Approaches to Free Expression
• 5 Reno v. ACLU: A Legal Test in the Age of the Internet
• 6 The Drudge Report and the Clinton Scandal: A Case Study in Internet Content
• 7 A Survey of the Range of Internet Content
• 8 E-mail, Listservs, and Other Personal Forms of Free Expression
• 9 The Special Case of Invasion of Privacy
• 10 Property and Commercial Rights in a Digital Age
• 11 Comparative International Issues
• 12 Toward Thinking About Free Expression in a Digital Age
• Glossary
• References
• Index