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Online San Diego

From the April 11, 1997 ComputorEdge (Issue 1515)

By Jim Trageser

BURLINGAME – Mike Godwin is that odd creature: a likeable lawyer. And for anyone at all interested in the legal landscape of cyberspace, getting to hear Godwin speak is always a treat. Godwin is a one-man ACLU of the online world. A founder and head lawyer of the Electronic Frontier Foundation, Godwin has been on the legal forefront of the online revolution for the last few years – the years when issues such as the First Amendment, copyright law and other legal rights have begun to be battled out in the electronic arena.

Until recently, the Internet, and cyberspace in general, was too small for the government to worry much about. A few bulletin boards were raided by cops looking for pornography or pirated software, but Congress pretty much kept itself busy subsidizing tobacco farmers and taxing cigarettes.

But when the Web exploded, and people found out you could transmit pornography just as well electronically as via the Postal Service, Congress worked itself up into a self-righteous lather and passed the Communications Decency Act, which pretty much outlaws discussion of any topic related to sex, no matter how tangentially. For the first time in memory, pro-choice and pro-life groups agreed on something – the CDA, if enforced, will make it illegal to debate abortion in cyberspace. Also outlawed will be discussion and information on topics like AIDS and breast and prostate cancer. And forget anything actually libidinous – were Napoloean alive, his letters to Josephine could never be e-mailed or he'd find the wrath of government bureacracy falling upon his head.

Which brings us back to Godwin, who's dedicated his life to fighting just this kind of idiocy. About 100 people gathered at the Seventh Conference on Computers, Freedom and Privacy at the San Francisco Airport Hyatt Regency in mid-March to hear a lunchtime address by Godwin.

Godwin, as usual, was late. Godwin, as usual, was dressed like a computer technician instead of an attorney – faded jeans, ill-fitting sweatshirt, casual shoes. And Godwin, as usual, brought the faith and fervor that only a true believer can bring. With Godwin, it's faith in free speech and trust in the common sense of the average citizen.

At the time of the conference, Godwin was helping the national ACLU complete its preparations for oral arguments before the Supreme Court in the fight against the Communications Decency Act. The Court heard both sides the week after the conference, and is expected to issue its decision this summer.

Godwin said that part of the case against the CDA is that the First Amendment must apply in the online arena, because "There is a sense that we are assembling in cyberspace. ... If you restrict a new medium, you don't just restrict the medium, you restrict the ability of people to form communities." And the First Amendment specifically protects not only free speech, but the right to assemble or the right to form communities without a by your leave from Uncle Sam.

It's this growing realization by Americans that they are forming communities online that offers the best hope of convincing the Supreme Court to fully protect online speech, Godwin said. "People are getting online, and they're participating in these conversations and they're discovering that they've been missing something. For most people, if you went to college that was the last time you were surrounded by peple who were excited about ideas. Then you go to work, and people are talking about 'The Simpsons.' You get online, and they're talking about ideas, about books. We're discovering something that we're missing as social creatures. This is the first mass medium ever that allows people to recapture that sense of community of a rural environment."

Godwin also pointed out that the federal courts have historically said that any form of communication is fully protected until proven otherwise although he admitted that they don't always rule in a manner consistent with that principle.

And so, at least in theory, there must be some kind of harm to the community before the government can justify banning citizens' right to free speech.

What harm has there been from unrestricted speech on the Internet? There are no studies showing a great wave of crime or damage – only anecdotal news reports about "pornography" on the Net. (Godwin's best line came when he mocked the overhyped media stories about Internet pornography: "We know the cyberporn stories must be apocryphal because the parents claim they just left the room for 2 minutes, then came back and the kids had pornographic images on the screen. Well, you can't find anything on the Web in two minutes – I know, I've tried!")

The real reason behind the CDA, says Godwin, is that you have a new medium on the scene, and there's a very natural human reaction to want to regulate it.

"It's always the case that governments want to shut people up."

Now the question is whether the Supreme Court will let them.