28 April 1999. Thanks to DN.

See related case on recent conviction of artist Carl Johnson: http://jya.com/cejfiles.htm


The New York Times, April 28, 1999

The Internet vs. the First Amendment


AMBRIDGE, Mass. -- As we try to make sense of the school massacre in Littleton, Colo., we suddenly find ourselves swept up in a national debate about whether the Internet, with its dazzling array of interactive mayhem and violence, is partly to blame.

Should the Internet be available to anyone, of any age, with a computer and a telephone connection? Many who have long wanted to muzzle the Internet are making symbols of Eric Harris and Dylan Klebold, who used the Internet to play violent computer games and promote their racist views.

How much protection should Internet "speech" receive under the First Amendment? And, under the Fourth Amendment's search and seizure provisions, may the Government browse Web sites without a warrant in order to nip mass murder plots in the bud? While nearly every possible view has its champions, most of the opinions expressed reflect more confusion than clarity.

The point to remember is that basic constitutional principles do not arise and disappear as each new technology comes on the scene. We have come to this conclusion rather slowly. Early in the 20th century, the Supreme Court expressed doubt that free-speech principles had any application at all to motion pictures, and in 1981, Justice Byron White introduced his analysis of a law regulating outdoor billboard advertising by saying, "We deal here with the law of billboards."

Only in recent years has the Court recognized that new technology doesn't affect basic constitutional principles. The Court has found that technological details, however, can be relevant to certain applications of the law, especially because, in principle, speech may not be restricted any more than necessary.

For instance, the Supreme Court struck down provisions in 1997 of the Communications Decency Act because they blocked pornographic materials from being transmitted over the Internet, when technology already existed that allowed parents to selectively censor such materials.

Even though the Internet allows nearly anyone to obtain or transmit information instantaneously to and from anywhere on the planet, it does not deserve more -- or less -- free-speech protection than older media.

A Web page simulating, or even glorifying, violence and hatred is not outside the First Amendment's protection any more than are disgusting board games, magazines or political tracts. The same First Amendment that safeguards the right of Nazis to march through Skokie protects the right of an adult to put virtual machine guns aimed at lifelike human targets on his or her computer screen.

At the same time, Internet speech doesn't have more constitutional protection than speech disseminated in a more old-fashioned and limited manner. In particular, direct threats or other messages that by their very utterance cause harm receive no more protection on the Internet than anyplace else. Releasing a computer virus through E-mail deserves no greater immunity than crying "Fire" in a crowded theater.

What about someone who posts a Web page with detailed, step-by-step instructions on how to assemble an explosive device from readily available materials? Such instructional materials are not quite like yelling "Fire" in a theater; they do not cause harm in a purely reflexive or automatic manner. Instead, they change the mix of ideas and information in the heads of the speaker's audience.

Speech disseminating such instructions on the Internet, however reprehensible, is thus entitled to a degree of First Amendment protection. But it is not entitled to the same level of protection to which speech advocating ideas is entitled because it is rarely part of any dialogue about what is true or what ought to be done. Distributing such materials doesn't try to persuade anyone to take a course of action, but instead provides the means for committing a crime.

Thus, the United States Courts of Appeals have held that distributing pamphlets on how to evade taxes, make illegal drugs or kill someone can amount to aiding and abetting a crime and may be punished as such, depending, of course, on the particular facts.

The First Amendment, therefore, should shoulder none of the guilt in the Littleton killings. In truth, the First Amendment leaves considerable room for government to exert control, and the advent of the Internet neither broadens nor narrows government's options.

Nor, for that matter, is the Fourth Amendment protection against unreasonable searches and seizures among the culprits here. Those who launch murderous plots by posting their deranged plans on a Web site are exposing their schemes in a public space, one that government agencies may freely browse without a warrant despite the fanciful argument that all talk on the World Wide Web is as private as E-mail messages might be. A t the same time, it would be a grave mistake to assume that either government surveillance or control can play an important role in preventing violent crimes. Doing more to keep lethal weapons out of youthful hands -- something the Second Amendment, under any reading, does not prevent -- and trying to diagnose all forms of rage before they erupt into violence, are likely to be far more effective than anything government could do either by spying on the Internet's users or by suppressing their speech.


Laurence H. Tribe, a professor of constitutional law at Harvard, is the author of the forthcoming third edition of "American Constitutional Law."