Although large online services like AOL are private organizations, their
size and structure is such that they have created a "public" space --
virtual in this case, not physical. In a public place -- an airport,
the public space in the private IBM building in Manhattan -- free
speech is protected by the First Amendment. What we need is a new
legal definition of what constitutes public and private space.
Lawyers don't yet see a legal basis to a challenge to censorship on online
services because such services are private enterprises. But what is
happening in the society at large is an increasing intrusion of private
space into public space -- the gated communities, the private guards, the
malls and the rest. As a result, there is a net loss of the physical,
psychological and electronic areas available to free speech, and
consequently a threat to public life itself. If you sell off the Commons
--
where free speech takes place -- then you have decreased effective
access to free speech, even though the Bill of Rights still
theoretically protects it. You can still say whatever you want -- there
is
just no place to say it where anyone else can hear you. So it is with
cyberspace (we submit that it is no accident that the word "cyberspace"
has come into common parlance to describe transactions on the Internet
and the large online services); you cannot decrease the overall
"availability area" without a corresponding erosion of free speech.
In AfterNoon's opinion, cyberspace should be considered public
space -- you may need the services of a private company to gain
access to it, but the company's control over its contents should be
limited strictly to matters dictated by technical necessity, and their
responsibility for its contents should be limited simply to
seeing that what their clients say is transmitted or stored or displayed.
The clients should be responsible for paying the company for its services,
and for obeying the existing laws regarding libel, intellectual property,
obscenity, etc.
Stephen Williamson
William Timberman
editors of AfterNoon