Tae Kim

Introduction:

In one small part of this not-so-ancient world, there was a group of pioneers from Cyber_Libertaria who discovered – some legends say they actually built – a "thing" called Cyberspace that had the unlimited capacity to produce Information. Overwhelmed by the bounties and glorious future of their own discovery, they believed in Cyberspace as their new-found haven and cherished Information as their most valued treasure. This new nation – or ideology – known to the outside world as Cyber_Libertaria pronounced Cyberspace as the oasis in a world dominated by capitalism and outdated ideologies. Proclaiming their national slogan "Information wants to be free", they called for the immediate demolition of all barriers that stood in its way. They looked to Cyberspace as its savior – and Information as its manifest destiny – that would finally fulfill their insatiable penchant for new technology and their endless struggle to overcome the constraints that laws of physics place on their earth-bound bodies. Information stood as the sole ruler and ideology – everything else was to be subsumed and pushed to the wayside.

No sooner than the Cyber_Libertarians discovered Cyberspace did news about its abundance and bountifulness spread throughout the world. Cyber_Litertarians opened its borders, confident that the newcomers would embrace Information with the same gusto and feeling of revelation as they have. The open-door policy of Cyber_Libertaria met with mixed success. Some became full-fledged Cyber_Libertarians themselves; some became memorized to the powers of Cyberspace while others remained apprehensive; still others started colonizing parts of the land, staking out pieces of Cyberspace as their own and keeping others out of their territory. There was (and still remains to this day) a state of general chaos and confusion – it was no longer possible to tell who controlled or ruled Cyberspace, what laws, if any, governed, or what should happen to it. Some Cyber_Libertarians continued to shout "Information wants to be free!" while others gave up their utopian dreams and came to terms with what they saw as the inevitable reality. About this time, amidst the bustling streets of Cyberspace, arrived an army of men from the powerful nation of Luddite_Land. From the opposite end of the world from Cyberspace, the Luddites ⁱ had been living peacefully under their centuries-long values, morals, and ideologies. They didn’t know much about Cyberspace, except that it had the incredible power of churning out unlimited amounts of Information – information that would penetrate into Luddite_Land and crumble the traditions, norms, and morals that have bound their nation together from the beginning, unless they did something about it. So began the war between the Luddites and the Cyber_Libertarians, and everyone else in between.

These Luddites at least understood something that Cyber_Libertarians and most others missed completely; namely, that Information inherently cannot be an ideology in and of itself. Our society and the many groups that comprise it are founded upon certain common ideologies and norms. Members of each group are inculcated and indoctrinated with the same system of prioritizing information. This system – or "defense mechanism", as Neil Postman might call it - labels and categorizes information as true, valuable, useful, irrelevant, false, or evil, according to its relation to the group’s purpose, objective, and ideology. ⁱⁱ Christianity has the Bible and the teachings of its leaders as its "defense mechanism." The military, academic institutions, law firms, the M-TV generation, families, and the Girl Scouts all have their own ideologies, traditions, culture, and norms that provide an order not only for their individual members but a common core of understanding and identity that make their group existence salient. Cyber_Libertarians denounce all such defense mechanisms, whether they are placed by group norms, laws, or market forces. The only ideology that matters to them is "more information is always better." Thus, Cyber_Libertarians stand for something that goes against every ideology and institution, because they reject every value-laden hierarchy of information. Thus, if, as Luddites fear, Cyberspace is programmed with the single-minded purpose of breaking down every floodgate and defense mechanism to overwhelm the world with indiscriminate information, all institutions and groups have every reason to panic and wage war against Cyberspace. Luckily for those of us that want both to benefit from Cyberspace and to keep true to our other allegiances, this bleak picture of Cyberspace is simply untrue.

What both Luddites and Cyber_Libertarians miss (the latter in its child-like excitement and the former it its uninformed fear) is the almost absolute malleability and fluidity of the "code" of cyberspace. Cyber-Libertarians, recognizing only the potential of Cyberspace in lowering the barriers to communication, first extolled its power to make information omnipresent and free. Luddites, themselves having little knowledge of how the underlying "code" of Cyberspace works, took this threat for all it’s worth.

Just as Cyberspace could make information absolutely free, it could also accomplish just the opposite. In fact, as Cyber_Libertaria began losing control over the vast territory, many money-minded entrepreneurs began reprogramming the "code" – commerce started taking place and people began paying for information rather than picking them up for free. Also, if the "code" of Cyberspace could make it infinitely easy for "speakers" to transmit and spread what they want to say, it could also make it infinitely easy for "listeners" to block out what they do not want to hear. Therefore, contrary to the fears of Luddites, the ultimate net effect of Cyberspace on information and defense mechanisms remains utterly speculative. There is no single state of "code" that is inevitable or fixed; its state at any given moment depends entirely on how it is programmed. Much of the "code" put in place by Cyber_Libertaria has been reprogrammed already. Many new tools have been developed and other unexpected problems have started to emerge. However, many people are still engulfed in the somewhat pointless battle between the two foes Cyber_Libertaria and Luddite_Land. Meanwhile, the real issues are pushed aside and left unaddressed, and "code" continued being developed and exploited without much public consensus or legitimacy, at the hands of enterprising private citizens and companies, rather than through a deliberative democratically accountable process.

Let us take our eyes off Cybespace for a moment, lest we be infected by the same myopia that has plagued many of its inhabitants. Let us take a bird’s eye view of the outside world, since, after all, the First Amendment free speech finds its present meaning there – perhaps we need to learn exactly what it means there before we talk about what it should be in Cyberspace.

We think of "speech" as an extremely broad concept that includes oral and written communication, the press, the arts, certain expressive conduct, the media, and etc. – all modes and methods by which we express our knowledge, thoughts, opinions, and feelings. Speech is, in a somewhat simplified view, the medium for information. "Free speech", as it stands in our Constitution, does not, and never will, mean an absolute freedom. As we have discussed above, each of the groups that make up our society at large require a certain core of values and ideology, and a defense mechanism that places an order upon what otherwise would be a chaos of information. Free speech sometimes is subjugated by such needs. High school students do not have quite the same free speech rights – they are constrained by certain pedagogical goals and prescribed norms of civic education. A racist does not have the right to teach his extreme views to certain children against the will of their parents, because a family is an institution that has certain recognized values that our society has an interest in protecting. The list here goes on and on. The relative value of speech, and therefore the level of protection conferred by law, depends on the "context" of speech. Thus, the First Amendment is most protective of free speech rights in the most public places – streets, parks, and squares; less so in less public places, such as schools, churches, and the military; and, of course, least protective in places that are not "public" at all.

The right to free speech, that is, our constitutionally protected impulse and need to express ourselves to others, for political, social, artistic, or whatever other reasons, is balanced against the countervailing needs of institutions and organizations to maintain their ideological structure. The largest of these institutions, the American society at large, is founded upon certain democratic principles, one of which is the high value we place upon free speech. As Alexander Meiklejohn once said, "[the] principle of the freedom of speech springs from the necessities of the program of self-government. … It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage." ⁱⁱⁱ Thus, a democratic self-government requires a "marketplace of ideas" where a " robust, uninhibited, and open public discussion" takes place. ^iv Public places – "public forum" as it is sometimes labeled in First Amendment jurisprudence – serve such functions. They are precisely the interstitial and residual spaces left after spheres of interested ideology have been staked out by all of our social and cultural institutions. The "American agreement" which Meiklejohn spoke of also means that, in a democracy, public spaces are "ideology-free", or at least is a place where no single ideology or set of values need protection against unwanted information. Thus, we can think of the public space where "law" lowers its defense mechanism against information.

"Free speech" in the public space means that "law" is decidedly in favor of information over defense mechanisms, except with respect to small exceptions such as obscenity, fighting words, libel against private persons, or child pornography. Of course, law is not the only force that regulates or constrains the "speaker." There are social norms that, even in the most ideology-free public spaces, -for better or for worse – endorse certain types of speech while suppressing others. Likewise, "code" is a regulating force, though we don’t normally think of it as such. "Code" manifests itself in many ways. If one wants to distribute political handbills, he must bear some transaction costs – the time, effort, and dollars involved in printing, going to a public place, and actually handing them out. These are the initial barriers that "code" – laws of physics – has placed upon the "speaker." Usually, what has been said thus far would suffice for a discussion about "regulation" – about law, norms, and "code." However, there is something peculiar and particularly interesting about speech.

For "speech" to achieve its end, that is to transmit information from one person to another, there obviously must be a "listener" as well as a "speaker." For communication between mutually interested parties, the existence of two independent human wills does not matter much. However, the most interesting of public speech, the kind that the First Amendment is the most useful in protecting, is one where the "listener" is not necessarily a willing participant. If we were interested only in protecting consensual speech, the role of the First Amendment and public speech would truly be miniscule. A well-functioning democracy is premised upon its citizens mingling and interacting with others in public places – expressing and absorbing information; to ensure such "open, uninhibited public discussion", we must tolerate things we don’t like to see or hear. Law is deaf to a complaint that one does not like what another says at a street corner. This is another feature of the "American agreement" that Meiklejohn spoke of - we "promise" to let each other speak in certain places designated as "public." As far as the Constitution is concerned, of course, each person is free to refuse to listen. In other words, Law recognizes the "right to speak", but not the "right to be heard."

This seems counterintuitive at first. If we are free to ignore or to completely shut off any information that we do not want, what does a constitutional right to free speech really mean? What do we make of a "right to speak" without a corresponding "right to be heard?" Law could choose to enforce such right, even if it seems counter to our notions of liberty. We can see many contexts in which certain regulatory forces limit people’s ability to refuse information. For example, in a law school class discussion facilitated by the use of e-mails, a combination of "code" and law makes sure that when one student speaks, at least one other student will listen. Likewise, something other than Law serves as a surrogate for a legal "right to be heard" in public spaces; it would be more correct to say that because of these extra-legal regulatory forces already in place, the society can afford not to impose on us a legally enforced duty to listen.

First of all, just as social norms help regulate "speakers," they also regulate "listeners." These are certain social understandings that are not quite as discernible or concrete as Law but nonetheless subtly influence us in the way we behave as "listeners." More importantly, the same laws of physics that make it harder for speakers to speak, make it harder for listeners not to listen. It is no coincidence that the most strict legal protection for the "right to speak" is given in the public sphere. To illustrate, take Harvard Square for example; there is a metro station right in the middle of it; there are restaurants, quaint gift shops, numerous bookstores, newspaper stands and many other commercial businesses; nearby is a post office as well as the Cambridge City Hall; people of all ages and backgrounds constantly mill in and out of the area. The First Amendment doesn’t give anybody the right to hold others as captives to be his audience. But it effectively accomplishes the next best alternative, by guaranteeing the speaker the right to speak in places where he is likely to have a large audience. The "opportunity cost" of not going to Harvard Square at all is far too great for most people who are accustomed to doing certain activities there. "Code" – the spatial and temporal restraints of the world made of atoms – prevents us from a priori programming our experience and discarding what we do not want. For example, to go to the Harvard Bookstore from the T-stop we must go through two blocks of sidewalk. On the way, we are likely to encounter handbillers, panhandlers, and perhaps some other "speakers." We may choose to take an alternate route, or plug our ears in advance; either way, we are bound by "code" and unable to program our experience a priori picking out only what we want while discarding others. And we accept such "imperfection" as an inevitable fact of life.

Thus the First Amendment applies the finishing touch to the carefully struck balance on how much information, in what manner, and where, is "spoken" and "heard". In each institution that we belong to, – whether a family, a religion, an informal circle of friends, or a workplace – the balance is struck in favor of protecting its ideological interest. Laws, such as property rights and the free exercise and free association clauses of the First Amendment, as well as social norms and "code" enforce such "protection mechanism" in these contexts. On the other hand, a decidedly different interest dominates in the public spaces. These are places where our democratic ideals of public discourse and free speech dominates over any single ideology; where everyone’s "right to speak" is highly protected. Much of the Law and norms that regulate speech in private circles are removed from the public spaces. While Law does not impose a duty to listen – and thus does not enforce a right to be heard – "code" replaces it to a sufficient degree as to make the right to free speech meaningful.

This picture of "speech" and the First Amendment in the world made of atoms is premised upon certain fundamental assumptions that we have attempted to uncover thus far: the compromise between our need to be able to filter and prioritize information, and the countervailing need of a democratic society to provide some uninhibited outlets of information and ideas; and the laws of physics and the economic nature of public spaces that together make a legally enforced "right to be heard" largely unnecessary. Any significant changes to these assumptions would necessitate a corresponding reassessment of the legal regime. The Luddites and Cyber_Libertarians have engaged in a debate regarding free speech without first testing where these critical assumptions remain valid in Cyberspace.

Cyberspace causes fundamental changes in the above explained assumptions upon which our Law is premised. First, as Cyber_Libertarians and Luddites have seen despite their flaws, Cyberspace has the potential to make information infinitely cheap, abundant, and pervasive. Thus, the assumption that "code" places meaningful physical restraints on the "speaker" does not necessarily hold in Cyberspace. Second, Cyberspace has the capability to allow speakers and listeners to be anonymous. Although the extent to which this happens is subject to empirical corroboration, a state of complete anonymity is certain to have some degenerative effect on social norms. These two changes seem to remove all the restraints placed upon the "speaker" and create a world where information overwhelms all barriers or defenses – a world the Luddites fear is about to come. But, as we discussed above, the "code" of Cyberspace alters the "listener’s" experience in an equally, if not more, revolutionary way.

First of all, "code" has the potential to let us organize and filter information a priori in the most effective way. E-mail filtering systems allow the "listener" to trash unwanted messages without even realizing that they have arrived. "Customized" portals – such as My Yahoo! – allow users to program their own Cyberspace experience by choosing what types of news or links will appear on the portal. On the sign-up page, My Yahoo! beckons users with the words "it’s yours, you build it, …, personalize your Internet experience." ^v Cookies and intelligent bots keep track of the user’s preferences, making such customization even easier to the user. Such developments in "code", largely unexpected in the early years of the Internet, are, in a way, natural responses to the tremendous growth of available information. That is, people have the natural tendency and desire to organize, filter, and pick and choose information – in other words, to put up a defense mechanism. In public spaces in the real world, such defense mechanisms are rendered ineffective to a large degree by the constraints of "code". The "code" of Cyberspace, however, is capable of obliterating those physical constraints that forced us to listen in the real world.

Second, "code" of cyberspace is discreet, rather than continuous. In cyberspace, we are able to jump from our nest to the desired destination. Advanced search programs and customization are decidedly inclined to help us remove extraneous experience in Cyberspace. "Code" is being developed in a way that will allow us to know precisely where we want to go and to bypass all unnecessary stops. In that version of the cyberspace, we no longer will have the occasion to encounter certain unwanted "speakers" on the way to a bookstore. Nor will we have to see the protesters in front of a store that unfairly treated its workers. "Code" will take us from our room straight to inside the destination of our choice. We will hear and see nothing on the way there. There will be tens of thousands of "speakers" in such Cyberspace – because it has become so much cheaper and easier to become a "speaker" - but with no one who will "listen", because the streets are empty. This is the state of Information and public speech that Cyberspace may be headed to at this very moment.

Some may respond, "so what?" If what we are worried about is the danger of our ability to be selectively exposed to information, a lot of that already goes on in the press and the media. We choose what books to buy and what newspaper articles to read; TV Guide lets us find out where and what channel our favorite programs will be broadcast. The print media and the television have "privatized" much of our information gathering process – a process that has continued with the emergence of Cyberspace -, but squares and sidewalks still remain as the place where a true public discussion can take place. Don’t the people who use Cyberspace, they would continue to question, also go to public spaces in real life? They have some point here – they at least point out the tendency among cyber-law and cyber-policy folks to treat cyberspace as if it is composed of totally different people and as if it is completely separate from the real world. At the same time, however, they underestimate the potential of Cyberspace to mimic and to replace the real world.

If Cyberspace never changes from its current state, indeed the concerns that this discussion has raised could be rightfully dismissed. The current Cyberspace is largely an informational and communicative medium – we talk to people, send messages, read news, post messages to a discussion group, and etc. We have already noticed one critical difference between Cyberspace and the media. Cyberspace is "interactive." Information does not simply flow into homes; they also flow out. Television audiences and newspaper readers, for the most part, are "listeners" only. Cyberspace, on the other hand, allows us to become both a "speaker" and a "listener". Another point that escapes the mind of most people is that Cyberspace is not really a "medium" at all – it is really a "space", much like the way Harvard Square is a "space." Cyberspace is slowly beginning to host some of the activities that take place in real world spaces. It is simply a matter of time until Cyberspace will have the architectural capability to duplicate and replace many of the roles now served by public spaces in the real world.

It is worthwhile here to repeat that public spaces in the real world gain their potency as the protector of free speech and public discussion because of their ability to attract "listeners." These "listeners" swarm into Harvard Square, for example, to go to the bookstore, to use the post office, to do errands at the City Hall, to do groceries, and to hang out with their friends at their favorite tea shops. All these people, regardless of why they come, are all potential "listeners" and participants, willing or not, in the continuous public discussion that goes on. Imagine a future version of Cyberspace and take its technological capabilities to the limit – with infinite bandwidth and multi-media capacities, for example. Amazon.com is already a legitimate threat to real-world bookstores. It may not be too long until Amazon.com allows customers to download entire books from its site. Then, bookstores – or even paper versions of books as we know it – may become an endangered species. And, of course, there would be one less occasion for one to go into Harvard Square and to the Harvard Bookstore whenever she needs to buy a book. E-mail will someday make post offices things of the past. Likewise, municipal governments, courts, motor vehicle departments, and the likes could – and probably will – make Cyberspace as their main place of business. Forms and applications could be filed and returned by e-mail. Appointments could be made online and take place in chatrooms. Advanced video-conferencing technology will make sure that the human element of service isn’t lost altogether. Fines for traffic and parking tickets could be paid online by credit card. In such a world, we would no longer have much reason to visit a real-world city hall or a municipal court – or chance to see picketers that always line outside those buildings; or to witness the silent protest of a jacket that shouts "fuck the draft" on our way to the courthouse. ^vi Of course, if our technology falls short of equaling Star Trek, we wouldn’t be able to "portal" physical goods across the Internet. We couldn’t really try on an outfit in Cyberspace, or drink tea there. However, as we have just illustrated, Cyberspace has the technological capacity to duplicate and replace large parts of the public spaces in the real world. As such functions of Cyberspace grows, their real-world counterparts will necessarily diminish. What results then, is the transplant of much of the public sphere from the real world to Cyberspace. This phenomenon is what poses the most grave danger to the status of information and speech in the public arena, something that neither Cyber_Libertarians nor Luddites have yet understood.

Thus, while the debate goes on between Cyber_Libertarians and Luddites about how much right the "speaker" should have in cyberspace, paradigm shifts of enormous scale are taking place – largely unnoticed by either camp, quite amazingly – on the "listener" side. "Code" of cyberspace makes it infinitely easier for "speakers", – a point that most of us recognize – but it also has the capability to make it infinitely harder for the spoken words to reach the ears of an un-cooperating "listener." In cyberspace, access is no longer a problem for "speakers"; the real scarce resource is the "listener’s" attention. ^vii What "code" has given, "code" has taken away.

Thus far, we have analyzed ways in which some fundamental assumptions on which our understanding of "free speech" is based are drastically altered, and hopefully established reasons for why a wholly different conception of speech should be considered with respect to cyberspace. In this section, we summarize some of the potential problems resulting from such changes.

Everybody seems to focus on one phenomenon, – a blessing or a curse depending on whose perspective you believe – that cyberspace provides unlimited access and limitless amounts of information. For Luddites and other concerned groups, the prospect of infinite availability of all imaginable kinds of information presents a serious threat to their value systems and ideological order. More generally, all of us, as individuals, seek to find an order from the sea of information that has suddenly become so easily available. Every institution, belief and ideology – every person – wants to be able to order, prioritize, and manage information. Such instincts, or "defense mechanisms", give rise to a whole new set of unforeseen problems, while putting to rest, for the most part, the earlier fear that cyberspace contains "too much" information.

First of these problems is the disappearance of "public discussion," an element of the modern American society that serves several important functions explained above. To summarize, cyberspace has the potential to obliterate true public speech because of its two main characteristics. First, cyberspace has the capability not only to contain and disseminate information, but also to duplicate and replace the non-communicative functions of a public street corner – such as commerce or municipal functions. Second, cyberspace – while potentially swallowing large chunks of the real space where public speech would take place – does not necessarily provide equivalent avenues in which "speakers" can have their voices be heard. This is so, despite the fact that "code" virtually eliminates all problems of access for would-be "speakers," because "code" also eliminates the elements of the real world that render "defense mechanisms" imperfect in public spaces. Thus becomes possible a state of cyberspace where an unprecedented number of "speakers" – and therefore, information – is online, but no true "public discussion" or "exchange" of idea takes place because the vast majority of information remains in the ether of cyberspace and never is heard or seen.

Second, and closely related to the first, is the questionable legitimacy of such "defense mechanisms" in cyberspace, distinct from the sheer extent to which they are effective in allowing "listeners" to select which information they wish to be exposed to. "Defense mechanisms" in real space, for the most part, as based on traditions and functional purpose of each institution that installs them. Religion, compulsory education, family, and each corporate culture has certain pronounced goals and defined ideology that their members have come to expect and accept. In a democratic society, these different views and thoughts come together to mix, to be criticized, and to be compromised with each other in "public discussion," whether through media, town meetings, or in city squares. One important function of "public discussion" is that they serve as a check or a validating mechanism on the different ideologies – and their defense mechanisms – by "informing" the public and leading them through a continuing deliberative process. Therefore, the "defense mechanism" that Law has placed in public spaces is for the most part neutral and accommodating. For example, the government may only place a "time, place, manner" regulation in public forums, and cannot discriminate against certain viewpoint or content of information. Government is trusted as the operator of the "defense mechanism" in public spaces, and as the neutral arbiter who only makes sure that the debate does not get out of hand. To the role of the government in its management of public speech in the real world, compare the various "defense mechanisms" that exist or are under development in cyberspace. The commercial "defense mechanisms" that have sprung up in cyberspace – i.e. My Yahoo! and other "personalized" portals, Cyber Patrol, etc. – are driven largely by market forces rather than institutional traditions or group norms. Furthermore, there is no umbrella "defense mechanism" at the top, equivalent to the "time, place, manner" regulation of the government in public forums, in cyberspace. These "defense mechanisms" are anything but content- or viewpoint- neutral. Take My Yahoo! again, for example. On the left and right columns of the "personalized" Yahoo! page are listed various topics such as "Auto Loans," "Best Fares," "Lottery Results," and "Mayo Clinic Health Services." ^viii How does Yahoo! decide what content to put in these categories and what categories to choose in the first place? Did anyone except Mayo Clinic lobby to Yahoo! to create a topic called "Mayo Clinic Health Services?" The fact is that market forces – the power of dollars – dictate the "defense mechanisms" that we use to sort through and make sense of information in cyberspace.

This discussion has attempted to shed light on some of the fallacies that have plagued the common understanding and assumptions of the Internet. Misguided fears as well as excitement about the Internet as an infinitely large reservoir and an infinitely fast conduit for information have blinded us to some of the more recent changes to the "code" of cyberspace. Not only do such changes alleviate and dampen our earlier emotions about the Internet, they also introduce some fundamental changes to the way we ought to think about free speech. Such changes mean that "right to speak" may no longer be sufficient to protect some of the speech that First Amendment is designed to protect. With the disappearance of public forums in both real space and cyberspace, and our increased ability to block of speech and information that we do not want, cyberspace may indeed be headed for a world where no society-wide discussion of all views and opinions can take place, and people are segmented according to their beliefs and likes without any occasion for interaction. However, one thing that has been stressed repeatedly throughout this discussion is that "code" is malleable, and no one state of cyberspace is destined or more likely than any other from a technological standpoint. The process of restoring public speech in cyberspace must begin with questioning the legitimacy of the "defense mechanisms" that have been erected by private business entities. The problem with the way we now deal with management of speech and information in cyberspace is that it is entirely decentralized and dominated by market forces. We must find some way to make such process more democratically accountable, either through a legal management and regulation of new developments in "code" that affect public speech, or by increasing the public’s input and involvement in the implementation of such developments.

FOOTNOTES

v. <http://my.yahoo.com>, last visited 12/21/98.

viii. <http://my.yahoo.com>, last visited 12/22/98.