Issue- Freedom of Speech (And many, many metaphors)

So the internet has been, in one form or another, analogously tied to pretty much every form of space. Castells argues that the rise of the network society creates a shift from a "space of places" where the emphasis is on physical location to a "space of flows" where time is determined through the new architectures that connect people through networks.

Legally, it looks as though we're still kind of getting our heads around what exactly this whole internet thing represents in terms of space. One of the big cyberlaw cases (perhaps the biggest- its ranked the most important Supreme Court cyberlaw case by UCLA's Online institute for Cyberlaw and Policy Top Internet-Related Case and Statutes) is Reno v. ACLU. The Case centers around the Communications Decency Act (CDA) put into place under the Clinton administration. The disputed sections of the CDA can be found here, the most pressing of which makes it a felony to transmit an "'indecent' communication knowing that the recipient of the communication is under 18 years of age." Lessig writes at length about the CDA in Code, as an example of the limitations of regulation, and the underlying values that regulation represents. Again, as I've mentioned, I'm pretty new to the whole internet law thing, and doing this largely for my own benefit (I'm fairly certain no one else has read, like, any of this). Some of the more important claims made in the decision:

1. The assumption of choice: Stevens argues that, unlike the popular notion that users commonly "run into" obscenity accidentally on the internet, exposure to sexually explicit images is not likely to be done unwittingly:

"Almost all sexually explicit images are preceded by warnings as to the content." [n.15] For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident. [n.16]
Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. "

2. Stevens compares the CDA to several past forms of obscenity regulation, Ginsberg v. New York, FCC v. Pacifica Foundation, and Renton v. Playtime Theatres, Inc. In his analysis Stevens finds that the CDA represents a different form of regulation than the cases he cites, either because a) they limit speech only within certain time frames or physical references and b) they are specific about the nature of speech (as Lessig points out, never before have we held that "indecent" speech does not qualify as constitutionally protected speech). As Stevens contends:

According to the Government, the CDA is constitutional because it constitutes a
sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire
universe of cyberspace. And the purpose of the CDA is to protect children from
the primary effects of "indecent" and "patently offensive" speech, rather than
any "secondary" effect of such speech. Thus, the CDA is a content based blanket
restriction on speech, and, as such, cannot be "properly analyzed as a form of
time, place, and manner regulation."

So what about all the metaphors I promised? Yea, well, I lied. I think the problem is that before I wrote this, I read Stuart Biegal in the L.A. Daily Journal, claiming:

"In the end, it must be recognized that the Internet can probably be
viewed as all of the above: a library, a city, a telephone, a public park, a
broadcast medium, a print medium, a private living room, and a public
educational institution. Thus the answer to the Supreme Court's inquiry will
inevitably become that much harder to ascertain"

In the case, Steven's seems to concentrate not so much on how the internet is like any of these other spaces, but how it is unlike them, and can not be regulated in a like manner. However, despite the fact that the internet represents a unique space, Stevens gives some indication that given the proper architecture, the internet may well be ok to regulate. He makes the point that in terms of screening providers of sexually explicit or in this case 'indecent' material the technology does not exist to determine if such providers acted in good faith to reasonably restrict access to minors. Furthermore, although commercial providers of explicit material use technology that screens minors out (or at least intends and attempts to screen minors out), noncommercial providers of material can not be expected to meet the economic burden of using such technology.

The point is that, while Stevens strikes down the CDA on a number of different grounds, there is much room for regulation to occur. The dissent of O'Connor and Renquist goes further, arguing in favor of the sort of cyberzoning that Lessig mentions as a possible means of regulation (Wikipedia's entry of Reno v. ACLU has a good summary of the case and dissent) .In Lessig's terms, it is vital that the internet be regulated in some way that reflects a democratic consideration of values, and coincides with practical considerations of implementation.

I guess the question now is: does the technology exist to provide such an architecture? has such an architecture been attempted? what are the legal considerations of such an architecture, whether it has been attempted or not? That's what I'll focus on in my next Freedom of Speech entry.

P.S. Eventually I hope to get to the point of actually providing an opinion on these matters, but I figured the best way was to start at the beginning, with a heavier emphasis on facts and foundations than on opinion.