Americans take the free speech guaranteed by our First Amendment for granted. The wonder expressed to me by those in other nations who first encounter the web and email reminds me a lot of new American immigrants.
So it should make you more than sad to realize the First Amendment doesn’t grant you the freedom you think it does. As Feed Magazine noted with dead-on accuracy last week, Americans’ speech is only free from government interference and sanction.
Private parties can restrict speech at will, and employers can even prevent it. That’s why you can’t hand out leaflets at a shopping mall. That’s why Atlanta Braves pitcher John Rocker could be suspended, fined or even released for uttering racist nonsense. Over the last 30 years we’ve given away much of the First Amendment freedom we take for granted by simply privatizing the forums where speech takes place.
So how we define the Internet has profound implications. An ISP is essentially a city street, so it avoids content regulation on its services. But we haven’t given that power to all sites. Under a doctrine put forward in a case between Prodigy and Stratton-Oakmont, the general rule seems to be that if you claim the ability to control content (through moderation) you can be held liable for what gets through.
When you enter your place of work the “golden rule” applies: He who has the gold makes the rules. Since you might sue your company for what someone else writes on your Intranet, the company must control what goes on there for self-protection. But as more people work from their home PCs, companies are extending their reach to the home as well. As Feed noted, a federal judge recently let Northwest Airlines search and seize the home PCs of flight attendants for evidence of union organizing in their email.
Were it not for the potential liability, this issue would be simple. It’s clueless for a company to try to control the use of the web and email by knowledge workers. Anything that discourages Internet use tends to keep the company stupid.
Then we all get excited when local TV runs a sweeps-oriented report on state workers’ misuse of the resource. And if the state can (or must) control Internet access by employees, giving this control to a private company is a no-brainer – even when the employee is working at home.
For now, the question of whether the Internet is public or private depends on where you are and who’s asking. That’s a pretty conditional freedom. If we want more than that, we have to demand it, and accept the consequences of giving others the same freedom we demand for ourselves.
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