• Founding of the WWW - 1994
• Communications Decency Act 1996
• Overturning of CDA - 1997
• Pamela Anderson/ Tommy Lee Curtis porn video --1998
• Starr Report is released on the Web by the House of Representatives -- Fall, 1998
• Civil suit in Portland Oregon leads to $109 million dollar fine for the "Nuremberg Files" web site leading to its removal from the Web

Each of the components of this web essay offers ways to understand why the arrival of the World Wide Web has brought speech and censorship into collision. Like the onset of print in the early modern period, the Web has changed the medium within which knowledge work is conducted and stimulated an expansion of the numbers and varieties of the centers of production. These changes in the medium and quantity of communication have changed the quality of media culture and disrupted the ratio of speech and censorship within the prevailing media ecology. At the same time, the arrival of the Web has expanded the powers of speech and reinvigorated the ideals of public culture. Perhaps, as some commentators have written, the Web will make good on the largely unrealized promises made earlier in the 20th century on behalf of radio and television, by enabling unprecedented political participation by the average citizen. But the very features that cause Web evangelists and libertarians to enthuse--the power of one producer to broadcast to millions of linked computers without the supervision of any single agency of control--have caused others to call for new systems of censorship. To understand why one must take note of two features of the Web.

• The Web traces its origins to the first Internet, ARPAnet--a network that was radically centerless by design: the Internet is not one network, but a network of networks "designed to be a decentralized, self-maintaining series of rudundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control." (ACLS v Reno; District Apellate Court Panel Decision, June 12, 1996, "Findings of Fact; "the nature of Cyberspace") This structure was devised during the Cold War to insure survivability in case of nuclear attack. But this also means that communication over the the Internet (unlike the Postal Service or Telecommunications) is not supervised by any one government agency, company, or group of companies. It is decentralized by design, has become thoroughly international, and moves information at speeds that make control or supervision from a single site exceedingly difficult to envision. For this reason the Cold War may have spawned a distributed communications network so resistant to central control that there is no real way to stop a determined and financially independent "speaker" of pornography or hate speech. Now the absence of any central node of control has this unintended consequence: WWW may be censorship-proof. And this especially troubles those that want to inflect this new digital medium so that it reflects--in its structure and contents--even the most minimal common social values.
• The Internet comes to the Market: As long as the Internet was a way for military labs, universities, and then corporations to share their advanced research, it operated free of the market and its imperatives. But once an easy to use graphical interface was invented (with HTML and the protocols it requires), the WWW has become the focal point for frenetic commercial activity. One of the first commercial uses of the Web was the sale of pornography. There were several factors that made the WWW has become especially accommodating venue for porn: 1) by drawing upon two existing networks--the phone network and the credit card network--Web based pornography could allow private "viewing" by a relatively anonymous consumer; 2) because the Web is a digital network, it can translate analogue forms--still photographs, video, and audio--onto Web sites, and with the improvement in browser and server software, it is doing so at increasing powers of resolution. 3) At the same time that the market has made the Internet rich in resources, the international scope of the Web has freed it from most of the contraints of local and national law. The way the Web has unsettled the boundary between private and public life, and challenged the role of traditional media gate keepers, is apparent in two recent episodes. When the Starr Report was posted to the Web, it offered an uncensored account of the most intimate details of President Clinton's affair with Monica Lowinski. The fact that it was "already out there" on the Web meant that many newspapers around the country felt impelled to desist from the sort of censorship they might otherwise have practiced. Secondly, when a private video tape, made by Pamela Anderson (of Bay Watch) and Tommy Lee Curtis (of Men in Black) to record their sex acts on one Halloween night, became posted on innumerable porn web sites for viewing by millions.

Worries about the access by minors to Web porn, and unwonted solicitation in chat rooms and through email, led Congress to pass the Communications Decency Act (Title V of the Telecommunications Act of 1996). It was a failed first attempt to place limitations upon this powerful new medium. There were three provisions of this bill that became the focus of the successful appeal by the ACLU to the United States District Count for the Eastern District of Pennsylvania, and subsequently, the Supreme Court. One section of the bill provides in part that any person who, "by means of a telecommunications device" "knowingly...makes, creates or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other commuication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." Note: this law does not just punish what is already illegal--obscenity and child pornography. It also punishes "indecent" communication, a much vaguer and broader category of speech. In order to define "indecent" speech, a second section of the bill defines the patently offensive as "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as mearused by contemporary community standards, sexual or excretory activities or organs,..." Finally, the law makes it a crime for anyone to "knowingly permit any telecommunications facility under [his or her] control to be used for any activity prohibited" in the first two of these sections. Among the many objections voiced to the CDA, three arguments were most decisive: 1) By extending the legal framework traditionally applied to radio and television, instead of the legal precedents developed for print publication or telephone communcations, Congress was miscontruing the nature and potential of the Internet. 2) By seeking to criminalize expression that was "indecent" or "patently offensive" they were passing an unconstitutionally vague restriction of freedom of expression; it could, for example, make non-obscene but "explicit" speakers about sex--artists, scientists, providers of information about AIDs--libel to criminal prosecution. The only way to protect oneself from a statute that is vague and overbroad is through silence. 3) Finally, by making most of the parties to Internet communication--from content providers to internet prividers to a host of private and public institutions--legally libel for speech that someone under the age of 18 might "hear," the Communications Decency Act underestimates the difficulty of controlling access and use of the network from the point of production or distribution. Therefore, such legislation would have a chilling effect upon all speech on the Internet. In the most quoted sentences of the Philadelphia Federal Appeals Court judgment, the Court applied the First Amendment valorization of freedom of speech as a exchange that is valuable because it is openended: "Cutting through the acronyms and argot that littered the hearing testimony, the Internet may failry be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrustion." (http://www.eff.org/pub/Censorship/Internet_censorship_bill.../960612_aclu_v_reno_decision.htm)

The overturning of the CDA was widely viewed at a victory for freedom of speech on the Internet. But troubling implications of the Internet's amplification of the power of speech is suggested by two other episodes. An anti-abortion group developed a site entitled the Nurenberg Files. The web site title, by referring to the site of post WWII war crimes trials in the German city of Nurenberg, suggests what the site makes explicit: the analogy between abortionists and Nazi war crimes. The site is laced with vivid photographs of aborted fetuses. But its most inflammatory element is a list of doctors, nurses and other health professionals working in abortion clinics around the country--complete with names, addresses, phone numbers and photographs--with those who have been murdered crossed out, those who have been injured, with typeface in red. Is this free speech or a hit list? A court found that the site had qualities of a hit list and was inciting its viewers to violence. Therefore a legal injunction or restraining order was won against this site and it was closed down. (check) How can one stop the use of internet speech, and the forging of internet communities, around acts and causes most responsible members of the body politic would find deplorable? In the wake of Buford's attack upon a Los Angeles Jewish community, an act he described as a "wake up call to Americans to start killing Jews" (check), a New York Times article focused upon the problem of stopping acts of domestic terror by a "lone wolf" who, because he acts alone, is practically immune from advanced detection (NYTimes, 8/16/99). In considering the origins of this relatively new form of terrorism, the article argued that the speech of hate groups receives technological amplification from the Internet. Here the most celebrated qualities of the Web--its ability to forge community through participation by many; the ability to enable affiliation around a salient issue across great distances--becomes the source of danger to the society as a whole. "Terrorism experts point out that advanced in technology, in particular the Internet, have fueled the activities of loners, making it easy for them to communicate and gain access to extremist philosophers. 'It puts them all in the loop,' said Rabbi Marvin Hier, Dean and Founder of the Simon Wiesenthal Center in Los Angeles, which monitors 2,100 hate sites on the Web. 'They feel linked up. They're not alone. It makes them part of a greater thing. it's ther ticket to the world.'"

Because some form of censorship and constraints enable speech, it is not a question of whether but how we will find ways to "censor" Internet speech. Because the Web is becoming an increasingly commercial medium, the question of copyright and fair use looms large. Economic censorship--censorship on the grounds of copyright--seems to be emerging as the most formidable form of censorship.