In this second post, I will discuss why the Court treated the Internet differently from motion pictures? As Michael Risch pointed out, there are at least two responses. First, the Internet is a "different animal." Second, the First Amendment landscape in the mid-1990s was very different from what it was at the turn of the twentieth century. This post will first address these two responses (which I describe in my forthcoming article as technological determinism and path dependence) and then add a third explanation (historical contingency).
When new technologies emerge, there is a tendency to have high hopes, inflated dreams, or even "irrational exuberance." For example, when wireless radio technology was introduced, people suggested that world peace would be "only a turn of the dial away." (I wish it were that simple!) Likewise, when the Internet was first developed, its advocates described how the new technology could help the poor and the disadvantaged to realize their full social, economic, political, educational and career potential. Commentators also have noted the Internet's ability to erode the gap between the rich and the poor while strengthening democracy and free speech in authoritarian countries.
Although judges may agree with these prognoses, they cannot just extend protection to the new technology based on its newness or potential benefits. Rather, they have to explain through analogical reasoning why the technology is different in a legal or constitutional sense from existing technologies (such as newspapers, broadcasting, cable or satellite). Is the Internet different because computing technology is less invasive and more interactive? Is the Internet different because Cyberspace is "malleable," to use Justice O'Connor's term? Is the Internet different because market entry is easy, inexpensive and nondiscriminatory? Or is the Internet different because it is less susceptible to domestic regulation?
Even if judges are able to find some "peculiar characteristics" to justify varying treatment, the logic "if new, then protection" does not automatically follow. Instead, they have to explain why those characteristics warrant protection, rather than regulation. After all, the opposite of the logic "If new, then protection" is "If new, then regulation." As much irrational exuberance one can find in a new technology, that technology also has brought with it many irrational fears (as shown in the history of movie censorship in the early twentieth century).
Unfortunately, because most new technologies have a dual capacity for both good and evil, the technological nature itself usually does not offer sufficient guidance on our normative choices. Courts therefore have to look elsewhere to determine whether the technology deserves protection or regulation.
The second response concerns the changing First Amendment landscape. Although the First Amendment was ratified in 1791, its history, as Dan Farber pointed out, is rather short. Indeed, the First Amendment jurisprudence has changed radically in the past few decades. If James Madison were brought back to life today, he might be shocked by what he saw!
As First Amendment jurisprudence evolves, one naturally expects the Internet to receive at least the same free speech and free press protections its technological counterparts have received. Indeed, one could make a strong claim that such protections are path-dependent. What type of protection a new technology will get ultimately depends on what type of protection other once-new technologies now get.
This perspective, however, focuses too much on the gradual expansion of First Amendment protection--to the point that it ignores the increasing regulation of electronic media. In fact, the path dependence argument will hurt rather than help if one focuses on the more restrictive treatment of broadcasting technologies. Such restriction was so alarming that the late Ithiel de Sola Pool underscored the need to preserve free speech in electronic media in his classic 1983 book Technologies of Freedom.
In light of the incompleteness of both responses, let me offer a third response, which I hope will provide a missing clue. (It is only a clue because it will not provide a complete picture.) This missing clue is what I call historical contingency, and this point will reinforce my earlier point about path dependence.
As Gaia Bernstein, the architect of this symposium, has shown elsewhere about artificial insemination, the socio-legal acceptance of a new technology is a long process in which non-technological factors often come into play. (Lyria, thanks for the pointer.) In the current context, it sometimes may be helpful to look beyond the technology to understand why courts and commentators perceived the technology differently.
My former colleague, Justin Hughes, has wondered how different the "path of cyberlaw" would have been had international and comparative law scholars arrived at the debate first. Indeed, when one traveled back to early cyberia, one would find among its "early settlers" a mixed and odd group of American constitutional, criminal, commercial and copyright law scholars.
It is self-explanatory why American scholars arrived there first--and, for that matter, copyright, commercial and criminal law scholars. However, it is somewhat odd to find constitutional law scholars there. No offense, but pioneers as they might be, they were not usually known for their fascination for cutting-edge technologies. So, what happened? Perhaps, their arrival had to do with the time when the Internet first became popular.
Although the Internet can be traced back to the 1960s, the World Wide Web was not invented until 1989. Graphic browsers were launched years later, and the rest is now history. In retrospect, the invention of the Web was a major world event that transformed our daily life. However, 1989 was usually remembered for a different world event: the fall of the Berlin Wall (and the subsequent collapse of the Soviet Union).
The latter event, no doubt, has colored the legal commentary in the early days of the Internet. Consider, for example, Larry Lessig’s well-cited book, Code and Other Laws of Cyberspace. Although the book is often cited today for its technology-related propositions, it cannot be ignored that the book has a strong constitutional foundation--to be more precise, a strong American constitutional foundation. The first sentence of the opening chapter cannot be more revealing: "A Decade ago, in the spring of 1989, Communism in Europe died--collapsed, as a tent would fall if its main post were removed."
To many constitutional law scholars, the cyberspace seems to be an appealing alternative forum--or, even better, a domestic forum--for them to put into practice what they preached, or sought to preach, outside the country. Instead of dealing with the historical baggage of prior constitutional cases or the unappealing post-Soviet environment, they had the freedom and opportunity to develop their "ideal libertarian society." As this scholarship slowly found its way to courts, their approach certainly has influenced the courts’ perception and treatment of the Internet.
Obviously, the fall of the Berlin Wall and developments in Eastern and Central Europe were not the only major developments in the late 1980s that had affected early cyberlaw scholarship. One could note the increasing emphasis on intellectual property rights and the trade in information goods, as was evident in the creation of the Federal Circuit and the negotiation of the TRIPs Agreement of the WTO. There are also other examples.
I highlight the fall of the Berlin Wall here not to suggest a causal link between the event and the Court's pro-Internet stance, but rather to show that the perception and treatment of a new technology are historically contingent. To a great extent, the perception of a new technology is a prisoner of its time. The protection a particular technology gets often reflects the zeitgeist of its contemporary era. After all, who in the right mind would have mistaken a battery-powered cartoon-promoting device as a bomb had it not been for the traumatic events of September 11?!
The discussion here offers three explanations why the Internet was treated differently from its technological counterparts. In the next post, I will explain how these explanatory accounts can help us understand better the interplay of law, technology and society and what a general theory of law and technology should (and should not) be about. As usual, comments and feedback are welcome; they certainly will affect whether you will get to read the ending of this piece (a la Stephen King and my favorite never-ending novel, The Plant).
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