Chapter 12


THE DEFENDER

Mike Godwin



THE JUDGE (David R. Johnson): Mike is a tenacious defender of First Amendment rights, and he knows the constitutional issues involved better than almost anybody. His online discussion style is such that everybody who tangles with him is careful before they dive in. He takes every aspect of every sentence that somebody has written and provides the refutation in detail.


Mike Godwin
, an attorney, is counsel for the Electronic Frontier Foundation, the San Francisco-based cyber-liberties organization.


Any new communications technology brings with it the fear and loathing of the ruling classes. Inevitably their agenda is to gain control. In the case of the Internet, they will say that new laws are needed to save our children from the purveyors of pornography. Nonsense. We already have laws on the books that will do this. The goal is always power and control.

Mike Godwin understands this. "It is difficult to overstate what it means to take the power of the First Amendment‹which many people thought was a sort of a special pleading for big media like Time Warner or CBS News‹and tell them that the promise of this constitutional guarantee is one that belongs to the individual citizen, and that now you have the chance to use it. In the ACLU v. Reno decision, which I was lucky enough to contribute to, we're finally seeing the fulfillment of a promise that was made more than two centuries ago."

Mike Godwin is "The Defender." He wants to protect your right to publish on the Internet any content that would be legal in a newspaper or a book.

Since October 1990, Mike has been the counsel for the Electronic Frontier Foundation (EFF), a public-interest civil-liberties group founded by John Perry Barlow and Mitch Kapor since October 1990. Mike was the first person hired by the EFF, which focuses on (a) assistance and advice to individuals with legal problems and questions about cyberspace, (b) education of policymakers, law enforcement, and the general public about these issues, and (c) where appropriate, attempting to influence public policy. The group's role is to ensure that the principles embodied in the Constitution and the Bill of Rights are protected as new communication technologies emerge. Mike says, "I started as an (a) and (b) kind of guy, but lately I've been doing a lot more (c)."

When I interviewed Mike in San Francisco, he walked into my hotel suite while I was packing to leave and said, "Don't stop what you are doing. Turn on the videocamera." What proceeded was a nonstop sixty-minute monologue that would please any sane person. Mike is ready to go to bat for us against a government that would curb our right to free speech the moment we attach our computers to a modem.


THE DEFENDER (Mike Godwin): As a civil-liberties lawyer, I am interested in how the Internet functions socially and legally. What you have is something that looks like the fullest flower of First Amendment values the country has ever seen. Looking worldwide doesn't detract from that a bit. Even though, when you talk about the global legal structure, there is no First Amendment elsewhere, people across the globe are immensely hungry for freedom of speech and the ability to talk to those who share their interests, without intermediation‹whether the private intermediation of editors or the public intermediation of governments.

One of the difficulties we face now, and the cause of a backlash of fear of the medium, is the problem of pluralism. Most of us don't have to deal with the full range of opinions and ideas‹from the inspiring to the obnoxious‹that exist in the American landscape because the mainstream mass media filter them out. When you spend time on the Net, you discover that people are hungry to read and talk and that the political landscape is a lot richer than you ever thought it was. People hold beliefs that are orthogonal to the usual Democrat versus Republican scale.

For the first time in the history of mass media, you don't have to be a highly capitalized individual to reach a mass audience. Normally, mass media could be understood by C. Wright Mills's discussion of the power elite: people are powerful because they have access to powerful institutions. Either you're rich or you know somebody who's rich. Now it takes minimal capital investment for people in America to participate in the great public colloquy about life, culture and the arts, politics, and science. This is revolutionary.

Something that started as the subject of great optimistic hype, and has become the subject of a great amount of fear and trepidation, is that the Internet turns everyone into a publisher. I find it exciting. The framers of the Constitution did not draft the First Amendment only for the printers and publishers of Colonial America. They were acting on the assumption that potentially anyone could become a printer or a publisher. That implied proposition of the First Amendment is becoming expressed in the reality of the Internet. The question is how we cope with it.

In the past, the American legal and social systems have reacted negatively to new media. It took a long time before motion pictures were protected expression under the First Amendment. Broadcast TV and radio are still not understood to partake of the same protections of freedom of speech and freedom of the press that print media in the United States can claim. The American public believes, rightly or wrongly, that there is something special about TV or radio that requires special regulation. Nowadays people have no trouble with Federal Communications Commission control of television content. They are ready to see the medium regulated‹never mind that they are entirely comfortable watching TV themselves, certain that they are not going to be subject to any kind of brainwashing. We built, incorrectly, a social consensus that TV and radio are unusually threatening. The last thing we want to see is this same kind of consensus constructed around the Internet. We need a consensus that the Internet is an institution of First Amendment expression, that it partakes of all the protections of the First Amendment, and that it deserves the same kind of legal and constitutional protections that any newspaper on any newsstand receives.

Some of the backlash against the Internet and online communications has to do with the way mainstream media tend to construct issues. The fact that there is a computer dimension to a case seems to be a plus when it comes to getting national headlines or coverage on national news broadcasts. Some of this is a function of news reporters looking for sexy stories, and a lot of it is the result of particular forces in American public life trying to shape an agenda about American cultural life, particularly the cultural Right, or the religious Right, which is trying to build a new consensus that new media belong in a more restrictive regime for speech than exists for the traditional press.

For many of us, especially civil libertarians, there are problems with the Supreme Court's definition of obscenity. It is not fully defined. It varies according to community standards, and it is hard to know what your community standards are until you've been prosecuted. This puts people in the position of proving that speech has serious literary, artistic, or social merit in order to survive obscenity prosecutions. Civil libertarians regard that as too restrictive. The Right regards that as too liberal and too loose. Those on the Right do not want to see any kind of escape clause in terms of publicly acceptable speech that has to do with serious literary, artistic, or social value. They would like to say there are some things you cannot say in public, even if they have serious literary, artistic, or social value. The Right plays on our fears in order to advance that agenda.

Various organizations associated with the religious Right have constructed a fiction that pornographic content is rife on the Net; that it is pervasive, out of control, and getting worse; that when you log on, the stuff will flood over your monitor; that somehow pedophiles will be able to reach through your monitor and grab your child. Those are potent buttons to push for people unfamiliar with the medium. In reality, while it is true that pornographic content exists on the Net, almost none of the other propositions about pervasiveness seem to be true. It is very hard to encounter material without actively looking for it. In the public debate about children, someone will tell a possibly apocryphal story about a child who had been online for only two or three minutes, when some pornographic image or obscene phrase or profane language suddenly flooded over the Net at the child. You point out that this is the most programmable technology we have ever had. It is relatively easy to filter out that stuff from the beginning so that a child never sees it and is never the passive recipient of it. Then comes the response that children are very smart about computers and can figure out a way around those tools. The debate has suddenly shifted from whether the child was a passive victim to the concern that the child's curiosity is too great, a fundamentally different problem of parenting.

My short answer is, if you're concerned about your child being a passive recipient of inappropriate content, it is relatively easy to prevent that from happening, and it is more effective to do it from home than to implement it through a federal statute or through standards set by the FCC. If you are concerned about your child having a bad thought or being curious about inappropriate content, there is no software tool or law that prevents your child from acting on that impulse. What you do is to teach your child values. If you want your child not to look for pornography, teach your child that pornography is bad. That will be more effective and more preemptive than anything the federal government, whose inefficiency is legendary, can ever implement.

It is ironic that in an era of suspicion about the role of government, people are ready to have the government decide what's appropriate when it comes to the Net and to give the government more power to make those decisions than it has on the newsstand. I have no issue with the government having the same power that it has at the newsstand, but more power over the medium is inappropriate. When we allow people to speak to a mass audience, some are going to use that prerogative badly and say things that offend me. But I'm going to tolerate that, because I'm committed to a free society in which that person's right to say something that offends me is equal to my right to say something that offends him. We believe we live in a world that can tolerate full and vigorous expression of conflicting ideas in every medium, some of which many might find offensive, including so-called hate speech or Nazi propaganda. In this country, you can say what you like, but you can't use speech to commit a crime‹like fraud or blackmail or threatening the president.

Once we narrow the issue to what writers and editors can say, it's worth pointing out that the traditional way we have reached audiences has involved a lot of intermediaries. This can be a burden on creative people. On the Net that all changes. You have a much better chance of reaching an audience of hundreds or perhaps thousands who will appreciate your poetry on the Net than through traditional book-publishing channels, because the mass market for poetry is almost nonexistent. A poem can stay on the Net indefinitely and be read again and again. It can be put in an archive on your own system where people can download it. The countless things you can do to reach an audience are incredibly empowering.This frees us of the traditional process that comes from having to deal with institutions that, rightly or wrongly, act as filters between us and the audience we want to reach.

Another exciting aspect of the Net is that it's leading to a revival of written culture. People who are not professional writers are now participating socially in virtual communities and public debates in which the power of what you say is a function not of who you are or which newspaper you appeared in, but simply of the quality of your prose and the quality of your ideas. That is incredibly democratic and liberating.

If we allow the free market to work, we will have a range of online providers, including some that will act as conduits to sources of content on the Net with little editorial control and others that will market themselves, for example, as the Disney Channel of online services. If we trust freedom of speech and the free market to let providers decide what kind of services they're going to offer, we will have the maximum ability to protect ourselves and our children from material that we don't want to see we think is inappropriate, because every service will offer something unique. We don't need the FCC to dictate standards. It skews the market and it skews freedom of speech in ways that are disturbing in an open society.


THE CITIZEN (Howard Rheingold):
Someone once said, "Never try to out-asshole Mike Godwin. He's the most ferocious and tenacious debater I've ever encountered." I called him a bulldog and he corrected me: he regards himself as a terrier. I'm sure glad we have one well-read terrier on the side of civil rights in cyberspace. If you are going to argue with Mike, be prepared.

THE SCOUT (Stewart Brand): A lucid and focused legal mind. Mike has had an enormous effect on public computer policy at both the grassroots and the general levels. I've been delighted by his insights such as his proof that online communication is "more" intimate than face-to-face contact. Don't get in an argument with him, though. He fights to the death.

THE IDEALIST (Denise Caruso): Mike Godwin could be pulling down a quarter-million dollars a year at some highfalutin' law firm in Washington, D.C., or Silicon Valley. But he is absolutely steadfast about public service. And I've never seen anyone so competently and systematically decimate the opposition, in real time, under almost any circumstances.


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Excerpted from Digerati: Encounters with the Cyber Elite by John Brockman (HardWired Books, 1996) . Copyright © 1996 by John Brockman. All rights reserved.