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> From: Campaign for 
Peace and Democracy 
> From: lemjj@cunyvm.cuny.edu
Page A 56 The Chronicle of Higher Education
January 20, 1995
POINT OF VIEW  by Jesse Lemisch
                The First Amendment
                  Is Under Attack
                   in Cyberspace
     There is no First Amendment in cyberspace. Right now, in the
thousands of Internet discussion groups, we find a cyberspace full of
gatekeepers and fiefdoms, where those who would disagree must learn the
oblique expression of the dissident under autocracy. This marvelous form
of electronic communication -- whose essence is spontaneous, informal,
unconstrained and speedy interactivity -- is being trammeled and
tranquilized. If this new medium is to be a place of freedom for ideas,
all of the classic First Amendment issues must be revisited: censorship,
pornography, hate speech, the costs of freedom versus the costs of
suppression.
      I have been a dissenter in cyberspace. My adventures are important
because dissent defines the system's limits. I have been an active
participant in 13 Internet groups, known as bulletin boards or discussion
lists, to which subscribers electronically submit queries, notices and
opinions.  I frequently receive 75 or more messages a day. I have
participated in both academic and non-academic groups covering history,
American studies, and issues concerning women, left-wing politics, labor,
science, and health. In "unmoderated" groups, everything submitted is
distributed electronically to the entire membership; in others, moderators
decide what will and will not be distributed or "posted."
     For example, a man who directs several networks told me that he had
killed a submission from a graduate student who asserted that some noted
historians did not know their historiography. The director said that he
was saving him from "real professional trouble." On a network devoted to
women's studies, a female folklorist attempted to solicit jokes about
Lorena Bobbitt's attack on her husband, for a research project the scholar
was conducting. The moderator refused to post such material, fearing that
it would just aid the spread of sexist jokes. To me, both these actions
prevented critical scrutiny and discussion, one of the Internet's most
valuable features.
     These problems are not peculiar to a specific field or to academic
lists. On a list devoted to discussion of chronic-fatigue syndrome
(largely a support group for those who suffer from the illness and those
who care for sufferers), I suggested that we prepare and distribute a
leaflet summarizing the variety of ways that government agencies obstruct
treatment and understanding of the illness. Many participants on the list
hit the roof, describing my adversarial approach as "terrorism." One
particularly enraged member mounted racist, anti- Semitic, obscene and
threatening attacks on me, both on and off the net (and with impassioned
frequency). As a First Amendment absolutist, I locked my door, and made it
clear to the list's moderator that I had no desire to suppress such
 heinous expression.
      But the hate mail distressed me less than the response of the
moderator, who lectured me on provocation and required that both I and my
attacker submit any future messages to him ahead of time so that he could
decide whether to post them. "Messages that challenge the patient/reader
to serious and complex contemplation," he wrote to me, "will be asking
them to use talents whose exercise may negatively impact their health."
The health concerns of participants in the discussion group, he added
"necessitate a limitation on 'freedom of speech'."
     A list devoted to American studies, in which anything submitted is
screened by its moderator, is governed by similar reflexes. In response to
a note stating that the National Endowment for the Humanities was
soliciting nominees for its prestigious annual Jefferson Lecture, I noted
that a couple of recent lecturers were well-known conservative scholars. I
voiced no objection to them, but suggested that people debating political
 correctness should note such possible right-wing P.C. by a leading
cultural institution. A good discussion ensued, but it was sidetracked by
a sociologist who clearly didn't even recognize the names of the
conservative historians I had cited.
     I sent a message pointing that out, noting that he had "only the most
narrow and idiosyncratic notion of P.C., which makes him incapable of
comprehending the simple notion of right-wing political correctness."
     That was the extent of my crime. Two hours later, I got a private
e-mail message from the moderator of the list, saying that he wouldn't
post the message unless I changed it. "This kind of 'flaming' is
unnecessary and counterproductive," he wrote. "X's reponses have been
courteous; yours should be likewise."
     Privately feeling that I had, in fact, been discourteous but
surprised to see discourtesy offered as a rationale for rejection, I sent
 a brief message to the moderator -- for posting -- which described his
refusal and suggested that the list discuss censorship. He refused to post
it, suggesting that the discussion would amount to little more than
"navel-gazing." I later discovered that the moderator first sends some
submissions to the people whose views are being criticized so that he can
take their feelings into account in deciding whether or not to post the
material.
     These are just two examples of lists in which the obstacles to free
debate are clear: censorship, capricious rejection of messages, and a
sacrifice of freedom to personal feelings. Those who moderate and direct
discussion groups seem not to understand what more than 200 years of
debate about the First Amednment have shown, most recently with hate
speech and pornography: There is absolutely no way to ban valueless or
offensive speech without banning valuable speech as well.
     Moreover, no clear, agreed-upon definition of "flaming" exists.
Moderators repeatedly have accused me of flaming, while list members,
including those whom I was debating, found nothing objectionable. One
person's meat is another person's poison. But the problem is not simply
the lack of a consensus on what constitutes appropriate decorum on the
Internet. Net moderators and participants who make much of the horrors of
flaming always seem to have an approved target against whom flaming is
condoned and even encouraged. For example, on lists on which I
participate, I've noticed that it is all right to attack "anti-Semitic
loonies" or people who erroneously assert that chronic-fatigue syndrome is
psychosomatic. Thus flaming is in the eye of the beholder. I would argue
that it is the price that we pay for free expression. Attempts to prevent
it are analogous to banning "irresponsible" media.
     Legally, it is an open question whether existing laws regulating free
speech -- including bans on certain types of expression such as slander,
libel, and obscenity -- apply to the Internet. The system currently
operates in a gray area between what is considered public speech and
personal correspondence. I'm skeptical about placing limits on speech in
general: I listen sympathetically to those who oppose libel laws. But the
moderators who are imposing restrictions aren't really concerned with
issues of libel or other legal limits on free speech. Many are
unilaterally placing repressive limits on communications in the name of
decorum and civility.
     Too often, guidelines for moderators of discussion groups offer them
no positive statement to aid them in making decisions. My experience on
the American-studies list, for example, might have been caused by an
overzealous moderator; like many others, he is a graduate student, with
limited experience in scholarly debate. But the American- studies list is
only one of 43 history-oriented discussion groups that make up H-net. That
network is an influential model; with the support of the American
Historical Association, H-net recently received a six-figure grant from
the humanities endowment.
     The only time that the H-net guidelines mention free speech is in a
passage that justifies constraint rather than freedom: "It is so easy to
set up a (free) printing press, that control over messages on H-net lists
does not stifle the free flow of information."
     The director of the history network, Richard Jensen, professor of
American history at the University of Illinois at Chicago, has stated his
position unambigously to me in correspondence: "Internet provides rather
too much freedom right now." He also said that "excessive freedom"
seriously hinders the ability to improve communications among scholars,
and that the net should "emphasize gentility, politeness and courtesy, and
demand it of the participants." He wants postings written "in the style of
dispassionate nonpartisans" and instructs moderators who are confronted
with flaming to use a "quick DELETE finger."
     How far we have come since the American Historical Association issued
a Statement of Professional Standards in 1974 that endorsed "candor,
forcefulness, or persistence" in the "expression of differences of
opinion"! It rejected "civility" as a standard, on the grounds that it
would interfere with free debate.
     Mr. Jensen's position sacrifices freedom to sensitivity. it also
seems to me that attempts to enforce civility place many moderators in
loco parentis, treating scholars and other Internet users as children to
be protected from their supposed indiscretions.
     I come from a school that believes that ridicule of ridiculous ideas
is a legitimate debating strategy. It might be possible to express my
ideas less dramatically -- maybe even within somebody's prescribed limits
of gentility and decorum. But would they then be the same ideas and
present the same critique? I don't think so. Ban the medium of flaming,
and you ban the message of dissent. It's time to remember our sacred and
distinctive traditions of academic freedom and free debate and to ask
basic questions about who will control the Internet and how. If the
Internet is to be free, the default position must be ON.
Jesse Lemisch is professor of history at John Jay College of the City
University of New York.
Copyright Jesse Lemisch 1995
(Reprinted by Permission of the Author)
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See a much talked about Decency Bill proposed in the Senate.
Home Page of Leon James
Instructor's Weekly Comments
James-Bogan INET '95 Conference Paper
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