For Better or Worse, Wild Wild Web Being Fenced In

Gene Policinskil Commentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

At some point in history, America’s Wild West became the Less-Wild West — with the rule of law taking over from the justice of the six-shooter, with codified norms of society replacing the often-unbridled ethics of frontier life.

We just may be seeing something of that kind of change beginning in the Wild West of the 21st century — the World Wide Web, with its Cyber Age pioneers who have been communicating freely for nearly 15 years. Such change would have dramatic implications for free speech, privacy and copyright laws.

The signs are there, like the spread of barbed wire that ultimately fenced in the open range.

In one of its final decisions of the last term, the U.S. Supreme Court approved congressional restrictions targeting child pornography. Apart from the impact the law may have in enabling prosecution of those who traffic in such reprehensible material, the decision (United States v. Williams) is notable for the line it draws in Internet law for the first time — a “this far, but no farther” guideline — regarding sexually explicit material on the Web.

Meanwhile, other courts are considering lawsuits focusing on claims of copyright violations, with a potential for verdicts that may well rein in the galloping explosion of video material on social networks and sites like YouTube.

Clips from movies, news programs and entertainment shows have flooded such sites in recent years. But a federal court in New York is now hearing a $1 billion lawsuit against YouTube for copyright infringement — and the judge has just required the site to produce data on which videos are being watched by whom.

On a related front, in 2006, a teenage girl committed suicide after being harassed in an Internet hoax — a case that led prosecutors a few weeks ago to charge a Missouri woman with using the Web to drive the teen to take her own life. An FBI agent involved in the case said, “The Internet is a world unto itself. People must know how far they can go before they must stop.” In May, the Missouri Legislature passed a law that includes Web postings and computer messages under a legal definition of harassment.

Recent news reports also document attempts by both government and private companies to fence in the open range of material that gets space on the Web. In just this year, there have been congressional calls for laws to keep potential terrorists from using the Internet to communicate and propagandize. And though telecoms are not the heavy hand of government, Verizon Wireless tried to block a specific kind of e-mail campaign by an abortion-rights group, and AT&T technicians decided to sanitize the lyrics of a rock band during a Webcast because of two lines that were critical of President Bush.

Even those rugged frontiersmen (and women) of the Internet, bloggers, are now facing changes that compare to those that fenced in the once-free-riding cowpokes. Where bloggers for years largely rode freely outside existing law and set their own rules, the world is changing. Now there are libel suits, and organizations created to set out standards for blogging. And news organizations are restricting what information bloggers can reproduce without fees or permission.

Then there’s the question raised by a proposed federal “shield law” — which would shield journalists from being ordered by courts to reveal confidential sources — as to whether bloggers are modern-day “outlaws” unprotected by such legislation.

An unfettered life on the open prairie has great appeal to the American spirit. In a 1945 Roy Rogers cowboy movie, the hero sings of his desire to roam under starry skies, and pleads in song, “Don’t fence me in. / Let me ride through the wild open country that I love, / Don’t fence me in.”

Nostalgia and romantic notions didn’t stop the fencing in of that idealized vision of a wild, open country. For good or bad, a combination of legislation, court decisions, self-imposed restrictions and private vendor rules are creating limits in and around the Web’s wide-open speech country in much the same fashion.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].