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The First Amendment: Sex, Laws, and Cyberspace

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The First Amendment: Sex, Laws, and Cyberspace

Post  MBAstudent on Tue Feb 23, 2010 1:12 am

A Michigan college student posts sadistic fantasy about a classmate to
an Internet newsgroup and is charged with the threat to injure. A postal
inspector in Memphis, Tennessee downloads a pornographic image off the Internet
and the California couple who posted it is arrested for violating Tennessee's
obscenity laws. A programmer's encryption software is duplicated by someone
else and sent overseas via the Internet; the programmer is charged with illegal
export of munitions. The three defendants in these cases felt that the First
Amendment protected them, but it was not the case.
Sex, Laws, and Cyberspace is precise in its opinion on the First
Amendment and defends every case presented within the book. Sex, Laws, and
Cyberspace addresses the legal issues and ethical debates surrounding the
worldwide growth of the Internet. The same qualities that make these networks
invaluable--low cost worldwide reach, lack of censorship, interactivity, virtual
anonymity, and the ability to carry huge amounts of data, text, images, and
sounds--also makes them dangerous. The pressure on the government to regulate
the Internet is tremendous, and the implications of their judicial and
legislative decisions will be far-reaching. Sex, Laws, and Cyberspace examines
these battles and includes interviews with key players in both pro- and anti-
regulation camps. The authors offer a spirited defense of the freedoms now
under fire, and suggest ways to monitor the “net” without stifling it.
As an example the reader must look at is Jake Baker who liked to write
savage, pornographic snuff stories and post them to the Internet. Always
written in the first person and tinged with an eerie realism, his tales were
simple, explicit, and gruesome.

"She's shaking with terror as Jerry and I circle her. She says in a little,
terrified voice, 'Why are you doing this...I've never hurt you...p-please stop!'
I pause in front of her. Jerry smiles at her terror. He laughs at her pitful
pleas. I say, 'Shut the _uckup, stupid whore!' and hit the side of her head,
hard. She collapses on the ground, crying, curling up into a little ball.
Alright. Let's have some fun" (64)!

They proceed to tie the girl's hair to a ceiling fan and tear into her
as she dangles and spins. Baker's hero, Jerry, then rapes and mutilates her.
For the denouement, they pour gasoline on her and say good-bye with a lit match.
Baker, a twenty year old sophomore at Michigan college posted this piece to
Usenet under his own name.
The “real world” Baker was a quiet kid who played with computers and
drew little notice; but on the net he excited, offended, and garnered attention.
The last contribution Baker made was January 9, 1995, and again included a
simple plot, sadistic torture, and murder. The difference, however, was that he
used a real girl's name who sat in his Japanese class the previous fall semester
and on whom he had a secret crush. Ten days after the posting, the story came
to the attention of the University of Michigan.
Baker was contacted by officers from the University of Michigan
Department of Public Safety. Although he was surprised by the contact, he
readily admitted to writing the stories. Baker waived his Miranda rights, and
let them search his room and E-mail account. There they found an unpublished
story and a number of E-mail conversations with a fellow rape fantasizer, Arthur
Gonda. When interviewed by the officers, Baker stated that he wrote to exorcise
his “demons,” to relieve the tensions caused by a student loan he feared he
would lose, and to impress certain others on the “net.”
Without going into the details of this case, Baker was charged with
threat to injure. This was later dismissed because of his lawyer's appeal that
cited Whitney v. California. It stated, “Fear of serious injury cannot alone
justify suppression of free speech...To justify suppression of free speech there
must be reasonable ground to fear that serious evil will result if free speech
is practices. There must be reasonable ground to believe that the danger
apprehended is imminent” (81).
The other reason Baker's case was dismissed was that Judge Cohn looked
at the Communications Decency Act (CDA). Under Senator Exon's CDA, Baker would
likely be guilty of indecency and subject to both heavy fines and imprisonment.
Some point out that “The freedom of press belongs to those who have one” (80).
Half baked ideologies, dangerous ideas, and sordid fantasies can be posted,
published, and circulated with virtually no restrictions on the Internet. The
First Amendment allows this. The government's case against Baker collapsed when
real world standards were applied. Without the CDA or equivalent legislation
creating different rules for cyberspace, Baker's posting to Usenet was no
different than if he had distributed his stories as leaflets on street corners.

Judge Cohn took a swipe at the CDA, which had just cleared the Senate by
saying “The Senate's recent passage of a telecommunications bill including
Senator Exon's measure criminalizing the distribution of ‘filthy' material over
computer networks suggests that the First Amendment's applicability to on-line
communications has not been well considered” (80). Judge Cohn decided that the
CDA was not explicit or detailed enough for him to abide by it in his courtroom.
The First Amendment is the main issue presented within this piece of
work. Wallace and Mangan present their philosophy it through the entirety of
the book. They believe that the First Amendment has been interpreted to say
that people will not make content based distinctions of speech; there should be
no censorship; the cure for bad speech is to overwhelm it with good speech, but
not to silence it. They argue that the material being ruled or legislated on
would be First Amendment protected if disseminated in a book or magazine, then
there is no rationale for treating it differently on the Internet. Using a
computer does not, and should not, make anything illegal that is legal if done
without a computer.
Wallace and Mangan are strong believers in the First Amendment, and
believe that limiting what is on the Internet is a clear violation of the First
Amendment. Wallace and Mangan did not just stop with the writing of this book.
They were clear players in the ACLU v. Reno. The CDA was struck down on June 11,
1996, by a panel of three judges in Philadelphia. The judges determined that
the CDA was unconstitutional, thereby keeping free speech alive on the Internet.
Wallace was a major role player in the outcome of this case. He is well
educated in computer law and assisted the American Civil Liberties Union as
needed. This was not just a book written by Wallace and Mangan, but something
that means a great deal to them.
Johnathn Wallace is Vice President and General Counsel at a high-tech
computer services company based in New York City. He is a graduate of Harvard
Law School, he practiced computer law for ten years and has authored two books:
Syslaw, the Sysops Legal Manual and Understanding Software Law. Mark Mangan
works at the same high-tech company where he is a corporate writer. Both of
these men are well versed in the area of computers and computer law, and it is
evident in this book.
Wallace and Mangan do not just ponder the question of censorship, they
offer a number of interesting solutions that avoid trampling all over guarantees
of freedom of speech, press, and religion. The book has numerous stories, as
well as fascinating details of earlier legislation struggles over technologies
such as radio, television, and the telephone, which it applies to the
controversies over the Internet. They have produced one of the more important
books about cyberspace. It is well researched and can be easily understood by
the common reader.


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