20th WCP: How Ontology Saved Free Speech in Cyberspace

Reno v. ACLU is the 1997 landmark decision by the U.S. Supreme Court providing sweeping free speech protection on the Internet. Understandably, commentators from legal and political spheres have discussed the case in terms of familiar First Amendment issues, including precedents from telecommunications law, the long-recognized exception to free speech for "obscenity," and concern for the exposure of children to inappropriate materials.

Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I will analyze their apparent awareness of ontological issues and problems with their approaches. I also will argue that their current ontological assumptions might have left open the door to future suppression of free speech as the technology progresses.

How do ontological assumptions open the door to censorship? Zoning in the physical world has long been established as a way to segregate "adult" entertainment from minors, as with the creation of adult book store and entertainment zones. So far, at least, most of the justices seem to agree that such zoning is not possible in cyberspace, and, therefore, that adult zones for certain forms of expression are not possible either. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent and thus impossible.

I first sketch a range of possibilities for understanding the ontological status of cyberspace. I then consider the ontological assumptions in the two separate opinions of Reno v. ACLU, the majority opinion by Justice John Paul Stevens and the partial dissent by Justice Sandra Day O'Connor. I conclude with a consideration of the implications of different ontologies for the future of free speech on the Internet.

THE ONTOLOGY OF CYBERSPACE: THE POSSIBILITIES

Literature in recent years on cyberspace has been dominated by breathless revelations about new frontiers in virtual reality, with little consideration of the precise nature of these claims. Many use the language of the physical world metaphorically without considering the underlying "reality" they believe has somehow been altered or expanded. The alternatives for understanding the ontology of cyberspace include at last the following, with provisional names here for discussion purposes:

(a) Physicalism: Cyberspace could be understood in the strictly physical terms of the media of computers, telephone lines, and electronic signals. Legal perspectives grounded in physicalism are most amenable to concepts of physical zoning and thus partial censorship of the Internet.

(b) Idealism: Cyberspace could be understood in idealistic terms, as a construction of ideas and symbolic communication. Our awareness of cyberspace might be dependent upon an underlying physical reality of computers and wires, and our exchange of symbols in printed and spoken languages. But cyberspace itself is not identical to those physical realities and is instead an abstract construction of concepts and ideas. Although the characterizations of cyberspace might draw metaphorically from our descriptions of physical realities, cyberspace is not itself physical. This ontological position is least amenable to physical zoning analogies and thus most resistant to any efforts to censor or partially censor the Internet.

(c) Constructivism: Cyberspace could be seen as an emergent reality, neither physical nor mental but a construction from both. Attempts to reduce it to either physical or mental realities or a combination of physical and mental realities overlooks the emergent status of cyberspace as a distinct reality. Cyberspace could be understood partially in physical terms or mental terms, but with translations into non-physical extensions and analogies. A constructivist position seems incompatible with physical zoning analogies, although less incompatible than the idealist position.

ONTOLOGICAL REASONING IN RENO V. ACLU

I next consider the language of the court revealing their apparent ontological assumptions about cyberspace. Justice John Paul Stevens (who wrote the opinion of the Court) seems comfortable with the unusual status of virtual reality and is most like a constructivist, as sketched above. Justice Sandra Day O'Connor's separate opinion is decidedly ambiguous, even inconsistent, in her treatment of the ontology of cyberspace, but she leans mainly toward physicalism.

Justice Stevens' Opinion for the Court: Justice Stevens indicates a clear awareness of the ontological peculiarities of cyberspace. In first describing the elements of the Internet (e-mail, listservs, newsgroups, chat rooms, World Wide Web), he notes that

... these tools constitute a unique medium ... located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.

He includes no "scare quotes" around any of the key ontological terms here, especially "located." He thus seems to accept the insight that cyberspace has a location, but not one with the traditional coordinates of mass, time, and space.

Stevens later refers to the physical location of documents on the Web, suggesting his awareness of their different status from the "location" of the entirety of cyberspace. This reference says:

In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world.

By "concrete" he could be referring to paper documents which have been captured in digital language. He also could be referring to the physical space taken up by a computer file on a hard disk. But his use of the qualifier "concrete" also suggests an awareness that their physical location in time and space distinguishes them from the overall status of cyberspace. He clearly understands in this opinion that cyberspace cannot be reduced to those physical documents, a rejection of physicalism.

When Stevens discusses how one uses the Web, he moves easily through the Internet lexicon. He uses the language of movement and space without qualification, even though he has indicated his awareness that "there's no there there" in the Internet. He refers, for example, to "navigating" the Web, of links that are "avenues" to other materials, of "moving" from page to page. But he does not say these terms are metaphorical or qualified in any way.

He also makes analogies with familiar physical locations — libraries and malls — but says only that they are "comparable," not that they are the same, another rejection of physicalism:

The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services.

Later in the decision, Stevens introduces the terminology "modalities" in referring to the elements of the Internet. He seems to be acknowledging that cyberspace, this non-physical world, might be understood in different modes or alternative worlds.

Toward the end of his opinion, he declines to draw "lines" in cyberspace, but only, he says, because "Congress has sent inconsistent signals as to where the new line or lines should be drawn" This seems to leave open the possibility that he believes physical lines could be drawn, as they are for zoning boundaries for adult entertainment areas. But it also is possible that he simply did not feel the need to consider that issue because no guidance had been provided.

Finally, he uses a familiar metaphor in referring to "the dramatic expansion of this new marketplace of ideas." Here, the marketplace could be a physical place but it could also be an intellectual exchange sans time and place. He seems equally comfortable with either reading.

Justice O'Connor's Separate Opinion: Ontological contrast is provided by Justice O'Connor's separate opinion, in which she dissents in part from the majority holding. Of most interest philosophically is her struggle to address "zoning" in cyberspace and her suggestion that future technological developments might make it possible to "zone" adult areas for speech which is not "obscene" but still inappropriate for minors. She systematically uses scare quotes through out her opinion, perhaps reflecting her uncertainty about the ontology of the Internet.

O'Connor believes that Congress' main goal was merely "to create 'adult zones' on the Internet," as we now do for adult book stores. Prior to this Internet case, she notes, the Court had been clear on the appropriateness of establishing physical zoning that prevented minors from access to material which would be protected free speech for adults. She does not believe Congress succeeded in this first attempt, but her opinion suggests that it will be possible to do so.

O'Connor's opinion is filled with the physical language of zoning. For example: "they stray from the blueprint our prior cases have developed for constructing a 'zoning law' that passes constitutional muster" and "... the undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access."

O'Connor recognizes that "The electronic world is fundamentally different" from "the physical world." As an illustration of this difference, she says that cyberspace "... is no more than the interconnection of electronic pathways...." But this remark is puzzling, as there is obviously a physical dimension to those "pathways". Electronic signals travel through telephone and other wires to make connections through Internet Service Providers to other persons receiving those signals. These signals, lines, and computers are physical in that they have mass and a location in time and space. Indeed, from this perspective, cyberspace is every bit as physical as a telephone conversation, which uses wires, telephonic equipment to send and receive signals, and the electronic signals themselves.

Why would O'Connor say, not just that cyberspace is "different," but that it is "fundamentally different"? In the public discussion for the last decade, one fundamental difference in cyberspace is the capacity for creation of "virtual worlds." We can simulate flying an airplane, playing chess, conducting warfare, or touring a college campus — all while sitting in our studies at our computers. This "virtual" recreation of physical experiences does involve some physical elements — the signals, computer, software, and so forth — and much engaging contemplation has considered how these virtual experiences are similar to and different from the "baseline" physical experiences they simulate. This seems to be the sort of "fundamental difference" most observers have noted about cyberspace, not the use of "electronic pathways" per se that O'Connor notes.

O'Connor struggles with the language of the physical world, although her choice of words and her regular use of scare quotes suggests that she is uncomfortable with attributing properties to cyberspace other than physical ones. For example, she says:

Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed "locations" on the Internet.

She waffles with the words "some form of" to modify "geography" and her scare quotes around "locations." Perhaps she thinks these words apply only metaphorically, but nowhere does the word "metaphor" appear in her opinion. Perhaps she sees the scare quotes as resisting surrender to a non-physical ontology for cyberspace. If she can preserve a purely physical status for cyberspace, there will be a better chance that Congress will someday fashion a zoning law for cyberspace that would pass Constitutional muster.

In another passage, she makes a physical analogy:

The CDA is therefore akin to a law that makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store.

O'Connor also uses the literal language of physical space in a passage about chat rooms.

If a minor enters a chat room otherwise occupied by adults, the CDA effectively requires the adults in the room to stop using indecent speech.

Once again, her language suggests that cyberspace has more in common with physical space than anything else.

Her tentativeness also is revealed in a confused passage in which she essentially says that cyberspace is different from the physical world because it is like the physical world, viz.:

Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws.

This is seriously confused. Even if we agree that "cyberspace is malleable" (another physical term), the physical world also is malleable — we grade soil, cut down mountains, move rivers, create lakes, fill in wetlands to create land area. So cyberspace and the physical world are alike in being malleable, not different.

What could it mean to say cyberspace is malleable? We can increase the speed of modems so signals move more quickly through the wires. We take advantage of new technologies, such as real-time voice conversations through the Internet, one of the newest developments. But this does not seem to be her focus. Rather, O'Connor suggests that being "malleable" means we can "construct barriers" so that cyberspace could be zoned more like the physical world. By barriers, she refers to "gateway technology" which would require a person to provide some sort of identity to show they were adults, such as a password or credit card number. But her illustration is problematic. Gateway technology is not like the door — the physical gateway — that barricades the entry to the adult bookstore. Gateway technology is more like the identification one must present for that door to be opened. Fake IDs can be presented at the adult bookstore and surely they can also be faked at Internet "gateways."

She understands that this screening on-line is done through software, but that "... it is not available to all Web speakers." She notes various problems with reliance on such screening now and in the future, but her concerns sound like problems that are within the realm of technological solution. For example, we would need "an agreed-upon code (or 'tag')" so that Internet materials could be identified as inappropriate through the screening software. We also need "screening software or browsers with screening capabilities would have to be able to recognize the 'tag'" — something that is not widely available today.

The problems she cites are not insurmountable and she gives no indication that they are. Yet she says that "cyberspace still remains largely unzoned — and unzoneable." Why unzoneable? The software might be expensive and cumbersome but that is not an absolute detriment to future economic breakthroughs and implementation possibilities. She refers in the present tense to "the absence of any means of excluding minors from chat rooms in cyberspace." But she herself suggests that these availability problems exist "at present," and later she says that "prospects for the eventual zoning of the Internet appear promising." In the passage noted earlier, she suggested that it is possible to construct barriers, just as we do in physical space. Her choice of the word "unzoneable" thus seems all the more problematic, given her earlier observations that technology exists although it is not widely available.

Regardless of the depth of her doubts about zoneability — whether a short-term problem or a permanently fatal limitation in cyberspace — she acknowledges that adequate zoning does not exist now, and thus that the CDA must be struck down. She concludes that the CDA should be upheld with regard to individual communications from adults to minors that are "indecent." She does not give any specific examples, but the only situation that appears to meet this description is an individual e-mail sent knowingly by an adult to a minor. As O'Connor seems to agree, if a minor enters a discussion among adults in a chat room, there currently is no way to screen out minors.

O'Connor's reasoning is troubling. She seems deeply ambivalent, not about the current state of technology, but about the prospect of future developments. In some places, she seems to rule out entirely the possibility that zoning will be possible. But in several passages, she suggests that it will be possible, that the technology exists or is close to development. Most telling is her resistance, albeit ambivalent, to characterizing cyberspace in anything but physical terms.

THE IMPLICATIONS OF ONTOLOGY FOR THE FUTURE OF FREE SPEECH IN CYBERSPACE

The developments in technology in the next few years (such as electronic IDs and other screening devices) could well render O'Connor's position far more tenable, with regard to the possibility of zoning. Thus, those who wish to restrict free speech on the Internet would do well to pursue Justice O'Connor's efforts to understand cyberspace solely in terms of physicalism.

The best defense against future censorship on the Internet is to refuse to succumb to the paradigm of physical zoning. Free speech proponents should insist that cyberspace cannot be zoned — but not because technology is not yet available or not yet reasonably priced. Rather, free speech proponents must argue that cyberspace cannot be zoned because it cannot be reduced to a physical medium. The marketplace of ideas includes the physical elements of electronic signals and wires and computers. But it cannot be reduced to them entirely. On this ontological model, attempting to zone the physical elements of cyberspace with the goal of suppressing "indecent" speech to minors would be like prohibiting the suppression of certain letters of the alphabet because they might be used to communicate indecent speech to minors. This is a conceptual, ontological issue, not a technological one.

The majority opinion, with its emphasis on the marketplace of ideas and its resistance to analogies to physical zoning, sets the appropriate direction for reconceptualizing communication in cyberspace to protect these freedoms against whatever technological developments arise in the future. The ontology of constructivism saved free speech on the Internet in ACLU v. Reno and it appears to be the key to preserving it from future assaults.