The Electronic Frontier: The Internet and the First Amendment

From time to time. Prometheus features LFscon panel discussion transcripts for members who weren't able to attend. Here are excerpts from one of the most interesting LFscon panel discussions last year. "The Electronic Frontier: The Internet and the First Amendment."

Among the panelists were Prometheus Award-winning novelists L. Neil Smith (The Probability Broach), Victor Milán (The Cybernetic Samurai), and James Hogan (Voyage from Yesteryear). LFS members Fred Moulton and Jeff Wolfe. and moderator Matt Gaylor, who runs an Internet mailing list for more than 11,000 people around the world.

Gaylor: Do you think we're going to become more free or less free because of the Internet?

Smith: The Internet is a mighty weapon, and I love it. We're going to become more free. Once it becomes completely wireless, then it will be totally unstoppable—except when they run their jamming devices.

Wolfe: I think you may be underestimating the power of government to stop communications.

Smith: Believe me, I don't underestimate it. We're freer than we ever were right now. People openly defy the State, in a thousand different ways, every hour, thanks to the Internet. It was built to withstand a nuclear attack—and unfortunately, that means it's something the government can't shut down.

Milán: To me, the only issue that matters is whether governments will be able to enforce upon Internet service providers the responsibility for content. If they can do that, practically. we are hosed. If they can't do that, we are free.

Wolfe: The Internet is international, so if you don't like the laws of the country you're in, find a server in a different country. There are ways they, can block that, but it makes it harder… There is the Internet adage that censorship is treated as damage. and you route around it…

Milán: Everyone in the world now has access to the Internet, whether they use it or not… I'm a professional entertainer, and I've made a living on it my whole adult life, with a few unfortunate gaps, so I'm not afraid of this, because I think people are willing to pay me to read my stories. There's not enough quality entertainment out there for me to read, so l'm glad that the grotesque bottleneck of the publishers is about to be destroyed forever. If you want stuff that is free, everything is going to be worth about what you pay for it. If you want quality entertainment, from people who write music or books that you want to hear, you're going to wind up paying for it one way or another.

Wolfe: Tipping isn't required, but 90% of people do it. And now on many Web sites, they have a "tip here" area and many people do it.

Hogan: I'm glad I didn't restrict what my daughter saw and read when she grew up, because now she has a Web site that's contributing to the family fortune.

Smith: We need a new ownership paradigm. We need to start looking at it in a new way.

Gaylor: Is there anything that you think the First Amendment doesn't protect? What about child pornography? Or what about, not real pornograph, but animated child pornography.

Smith: We need to draw a sharp line, and it needs to be drawn. As I've written in my essays, there are smokers, nonsmokers, and anti-smokers. I'm a former smoker—I had two heart attacks, and had to quit, but I enjoyed it, and if it were safe, I'd go back to it—but we have to distinguish between nonsmokers and anti-smokers.

Anti-smokers are people who, if they were sitting in a restaurant 500 yards away from a smokers with three layers of glass between them and somebody smoking, they'd still scream and moan and get upset. Why? What they really hate in life is people taking pleasure. H. L. Mencken said that a Puritan is someone who wakes up in the middle of the night in a cold sweat with the haunting fear that someone, somewhere, is happy.

That's a much more common thing than many people realize.

On the one hand, we have pictures of children performing various sexual arts. Some little girl had to be put through that, and that's despicable, whether or not we think that should be illegal.

On the other hand, you have people who can draw anything, like my friend Scott Bieser (an LFS member) who drew the cover of Lever Action—and could draw a four-year-old girl doing all the things I didn't mention. And maybe that's despicable, too, but no force was initiated against anybody, no harm was done to a real human being. And anyone who would outlaw that isn't against the mistreatment of children. They're against pleasure.

That's where we need to draw the lines no matter how much we detest it.

What I'm saying is that if no harm is being done to a real person, then there's nothing that we should be able to do about that, even if we detest that.

Question from the audience: How do you define harm?

Smith: Libertarians tend to emphasize physical harm because if you start talking abut psychological harm, that's a very slippery slope.

Moulton: The switch comes with a whole laundry list of what people want to get rid of. How many people know about the Comstock era? More than a century ago, a guy named Comstock would go around and would hound you and throw you in prison if you received anything in the mail that he thought was "bad."

Originally, they wanted to keep people from sending dynamite through the mails. But eventually, they prevented people from sending or receiving anything abut birth control; you couldn't send anything about the rights of women inside marriage, from abusive husbands.

At one point. he sent a 75-year-old man to prison to hard labor for publishing information abut birth control and the rights of women.

So this slippery slope is very bad, and we have to address the point that you made—and draw a distinction between physical and psychological harm.

Gaylor: Hasn't the line already been drawn in the First Amendment, when it says: "Congress shall make no law…"?

Hogan: Back to Neil's point about child pornography and real images. In principle. one of the fastest ways that well-intentioned ideals collapse is when someone finds an obvious exception. And once you make the exception, the principle is dead. Probably, child pornography is a great example because it's the first candidate that people say justifies an exception. If the principle doesn't stand up there, in upholding the First Amendment, then the dividing line will move.

So let's take the bull totally by the horns. What abut real images? Possession of real images (of child pornography) is a crime, but does possession ever physically hurt anybody? Ok, people say, but if possession is allowed, then you're now stimulating the demand and encouraging these things to take place.

People whose inclinations are that way are not going to change. If the penalty is savage enough, that may stop these people from photographing what they do. But you really haven't changed the issue. You're back to the anti-smoking vs. nonsmoking issue. Back in Europe, in Denmark and Holland. there were glossy magazines devoted to precisely this kind of pornography, with specialty issues. The market for them was stupendous, but now pretty much all of those magazines are out of business, because the material is available on the Internet.

The government couldn't shut that industry down, but today it's gone because of the changing marketplace.

Smith: The State is done, and the State knows it. But it's going to try to continue to survive another nanosecond, until the politicians can collect their pension. Do you read Nero Wolfe? There are a couple of cases in which he knew he couldn't get the guilty guy involved, so he said: I'm going to make living impossible for this guy.

Milán: I'm sorry, guys, but the idea of the First Amendment really is that the foxes will impose upon themselves an honorable ban on chicken-stealing. That will never happen. We will never get the government again to voluntarily restrict their own power. That is impossible.

Smith: Except that you can use the First Amendment as a social tool, like whipping them with barbed wire. Because it's their rule.

Milán: But then they'll simply repudiate it.

Smith: But then we'll come up with something else.

Hogan: Expanding on Neil's point, especially when a system seems bent on self-destruction, why oppose it?

For example, one way to confuse surveillance is to flood the system with so much information. You can put so much material out there. The intelligence agencies for years have been putting so much noise and garbage that only the receiver knows what to look for. Their computers spend a lot of time and a lot of money going through these junk programs.

So why fight the system? Use it to give them more than they ever bargained for.