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Example research essay topic: Corn Revere Core Values - 1,214 words

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... gots the original group. In reviewing the incident the Electronic Frontier Foundation (EFF) found that on balance both sides were able to express their viewpoints. [Electronic Frontier Foundation, Letter to Office of Policy Analysis and Development NTIA, US Department of Commerce, by Shari Steel, staff attorney, 4 - 26 - 93 ]. Due to the interactive nature of Cyberspace more people are able to express themselves. Unlike printed press where there are publishers and readers or television where there are broadcasters and viewers the Internet allows a far greater level of interaction. In Cubby, Inc.

v CompuServe, CompuServe was found not to be liable for distributing the materials of others [Cubby, Inc. v. Compuserve, Inc. , 776 F Supp 135 (SDNY 1991) ]. Like a real world distributor of books it would not be reasonable to expect CompuServe to review all messages and files passing through their system.

The major criticism involving free speech and Cyberspace relate to the media specific nature of current regulations [Robert Corn-Revere, "New Technology and the First Amendment: Breaking The Cycle of Repression", 17 Hastings]. Each time a new technology has developed new criteria is established. When a breakthrough in technology first emerges there is no solid framework that developers, users, government or courts can look to for guidance. As a result what may be protected in print media is prohibited from broadcast television. In Cyberspace a user or system operator can wear numerous hats. When acting as a publisher one is responsible for libel and defamation.

If acting as a distributor of someone else's product there will likely be no liability. [Cubby, Inc. v. Compuserve, Inc. 776 F Supp 135 (SDNY 1991) ]. Others point out that Cyberspace is unlike other communication media and therefore should not be regulated at all or should have a different standard [Anne Wells Branscomb, "Anonymity, Autonomy, and Accountability: Challenges to First Amendment in Cyberspace, " 104 Yale Law Journal, 1639, 1995 ]. Current politics is attempting to draft legislation to either restrain or protect the Internet from the regulatory arm of the government. Robert Corn-Revere has described the inconsistent protection/ regulation through an example involving a regulator simultaneously viewing an identical sex scene on five televisions.

One of the televisions is receiving its signal from a broadcast tv station, another from a cable television feed, another from a VCR, a fourth via satellite and the fifth via fiber optic phone lines. The paradox is that identical expression / content on the five sets may be subject to five or more types of regulatory schemes and receive varying levels of free speech protection. The difference in regulation may be ascribed to the law reacting to new technologies in a manner to fit the level of regulation to the developing technology. Revere describes three judicial approaches which may be used in determining what level of free speech is afforded, incremental approach, revisionist and traditionalism. The incremental approach reflects current reality where different standards are applied to different media even though the speech content may be identical.

This approach provides full free speech protection only to the printed media. A disadvantage is the lack of a framework that can be applied to new technologies, like Cyberspace. The revisionist approach is based on balancing private and public interest to maximize the good for all. Like the incremental approach, changes in technology outpace the regulators and a void develops whenever a new communication medium emerges.

To fill the void regulators tend to attempt using regulations designed for other communication forms that may not work well. The traditional approach ignores the medium through which communication is transmitted and analyzes the content of the message to test if it warrants free speech protection. Laurence Tribe has referred the constitution's core values [Lawrence H. Tribe, "The Constitution in Cyberspace, " prepared remarks, Keynote address at the First Conference on Computers & Privacy, (1991) ].

The core values would be universal beliefs and ideals that would not change with new technologies. Tribe put forth five principles that applied to Cyberspace issues. They would maintain the First Amendment's vitality and ability to guarantee free speech. First the constitution limits what government may do but advances in technology do not expand what government may do. Secondly private property is private and the government can not make private property public subject to the fifth amendment.

The third principle is that government may not control the content of speech / information . Tribe submits that writing of computer viruses (information content which is speech) would be constitutionally protected. But the use of viruses to the harm of others can be prosecuted like yelling fire in a theater where no fire exists. The fourth principle is that right and wrong do not change with technology. And the final principle is that Constitution's meaning should not vary as technology changes.

The Constitution's principles must be interpreted in a dynamic way. One example provided was how the court in Olmstead held that wiretapping was not a search invading a person's right to privacy in the same way a physical search of a house would be [Olmstead v. US, 389 US 351 (1967) ]. In Katz, the Supreme Court repudiated the earlier decision finding that the fourth amendment protected people not places and that wiretapping was an invasion of a person's privacy [Katz v. US, 389 US 351 (1967) ].

The traditionalist or core value approach provides a stable framework for determining whether there is a compelling governmental interest sufficient to warrant a restriction on free speech and if the regulation is narrowly tailored. Regardless of the medium of speech identical content would receive the same level of protection. The traditionalist approach also provides a framework to apply to emerging technologies like Cyberspace and technologies unknown at present [Robert Corn-Revere, "New Technology and the First Amendment: Breaking the Cycle of Repression, 17 Hastings]. Existing free speech protection devices that regulate to a varying degree based on the medium of communication rather than the content transmitted do not provide a suitable framework to protect speech in Cyberspace. A core-value approach to speech protection provides equal protection to identical speech content regardless of the medium through which the information is transmitted. A core-value approach therefore provides a stable framework for addressing free speech issues in Cyberspace and technologies yet to develop.

In the words of the late Professor Meiklejohn, who has articulated a view of the first amendment which assumes its justification to be political self-government, has wisely pointed out that, "what is essential is not that everyone shall speak, but that everything worth saying shall be said"-that the point of ultimate interest is not the words of the speaker but the minds of the hearers [A. Meiklejohn, Political Freedom: The Constitutional Powers of the People 25 - 28 ]. Can everything worth saying be effectively said? Constitutional opinions that are particularly solicitous of the interest of mass media-radio, television, and mass circulated newspaper-devote little thought to securing the difficulties of access to those media The overwhelming public use of the Internet has forced a major focus on the public's access to a mass medium. The Internet's purpose of creating an opportunity for expression has been as important as ensuring the right to express ideas without fear of governmental reprisal.


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