Copyright (C) 2003 Albany Law Journal of Science & Technology

2003

13 Alb. L.J. Sci. & Tech. 273

LENGTH: 63502 words
ARTICLE:COMPLICIT PUBLICATION: WHEN SHOULD THE DISSEMINATION OF IDEAS AND DATA BE CRIMINALIZED?
Susan W. Brenner*
* NCR Distinguished Professor of Law & Technology, University of Dayton School of Law, Dayton, Ohio. Website:
SUMMARY:
... This article is about controlling speech; more precisely, it is about the advisability of using criminal prohibitions to control the dissemination of ideas and information. ... The content of theories, ideologies and philosophies is abstract, and is therefore exceedingly unlikely to become the actus reus sufficient to support the imposition of criminal liability under the "speech act" doctrine. ... Since notional ideas do not lend themselves to prosecutions under a "speech act" approach, the only way to impose criminal liability for their dissemination is to make the articulation of certain types of notional ideas a crime. ... It is exceedingly unlikely that the symbolic expression of notional ideas in fiction, music and/or art could provide the basis for imposing criminal liability under the "speech act" doctrine. ... That is, personal information has negative value because it can be used to locate and harm someone. ... How is all this relevant to vulnerability reporting? This analysis is concerned with the extent to which criminal liability can be imposed for the dissemination of certain types of speech. ... It is this variation in how societies approach the criminalization of speech that creates the scenario described earlier, in which the owner of the Justice Files website moves it to a jurisdiction where its content, which is illegal in Washington, is lawful. ...
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I. Introduction
"Editor-in-chief of the official German news agency ... [and] head of the Wireless News Service ... . Fritzsche used the foregoing positions... to advocate, encourage, and incite the commission of the ... Crimes set forth in ... the Indictment ... ." n1
This article is about controlling speech; more precisely, it is about the advisability of using criminal prohibitions to control the dissemination of ideas and information. n2 This is not an article about the First Amendment, though it incorporates First Amendment principles into its analysis. Instead, it is concerned with how principles of substantive criminal law devised to deal with conduct occurring in the "real," physical world can, and should, be extrapolated to cyberspace. Cyberspace eliminates the pragmatic "filters" that have for so long constrained the dissemination of ideas and information; n3 it gives rise to new modes of communication and thereby raises difficult questions about the extent to which speech can, and should, be criminalized in American law.
These are not merely national concerns; the capacity that cyberspace creates for the unfiltered, unfettered dissemination of information also raises difficult issues at the international level, since the content posted, for example, by American citizens can bleed across national boundaries and reach the citizens of countries where it is illegal. n4 Because their speech is legal in the United [*276] States, those responsible for posting the information cannot be prosecuted in this country; consequently, they cannot be extradited for prosecution in countries where their speech is illegal. n5 This, in turn, creates the possibility that the United States will become a "speech haven," n6 i.e., a nation that harbors those whose speech is outlawed elsewhere, and gives them the freedom and the resources that they need to broadcast their messages to the [*277] world. n7 If one assumes, as seems reasonable, that the United States would prefer not to become a haven for the Nazis of the new millennium, it becomes necessary to consider the extent to which the emerging varieties of, and opportunities for, disseminating information can be criminalized under American law. n8
[*278] The notion that criminal liability can be predicated upon what one says, as opposed to what one does, is far from new. n9 In the [*279] Anglo-American tradition, for example, the crime of blasphemy dates back to the seventeenth century, n10 and other "word crimes" were in existence long before that. n11
Blasphemy was one of the four "branches" of common law criminal libel; the others were obscenity, sedition, and defamation. "All four ... sought to ensure that speech did not violate established norms of respect and propriety." n12 Since courts of this era agreed that Christianity was part and "parcel of the common law of England," n13 it followed that speech that was repugnant to Christian values and violated the law, which could be punished as a criminal act. n14 This was an instance in which the law imposed the views of a dominant group upon an entire populace instead of protecting the values of many diverse groups, n15 a phenomenon that has been common throughout history.
This perspective, which came to America with the colonists, n16 survived well into the nineteenth century, notwithstanding the adoption of the First Amendment. n17 By the end of the nineteenth century, the dominance of this view had begun to erode, due in large part to the increasing diversity of American society. n18 The influx of millions of immigrants in the nineteenth and early twentieth centuries gradually diluted the Anglo-Saxon, Protestant homogeneity of the original colonies. n19 America became a pluralist [*280] society in which no single group's views were "parcel" of the law.
One consequence of this diversification of American society was an increasing intolerance for restrictions on speech, especially value-laden speech. This intolerance, coupled with other factors, resulted in the creation of free speech jurisprudence, free speech having received little or no attention from courts during the nineteenth century. n20 As a result of this new emphasis on free speech, many of the old laws criminalizing speech, including blasphemy [*281] and sedition laws, were either struck down as violating the First Amendment or fell into disuse for the same reason. n21
Contemporary American law governing the criminalization of speech is largely the product of evolved technology. Criminal prohibitions are adopted to control behaviors; laws criminalizing speech are therefore designed to control at least certain types of speech. n22 To understand why it has been deemed necessary to control speech, it is necessary to consider how the technologies of communication have evolved and how they interact with speech.
In pre-literate societies, which have no communication technology, speech is merely oral, severely limiting its dissemination: Face to face oral communication is restricted in scale; it can involve one speaker and one listener or expand to involve more than one speaker and multiple listeners, but its audience and its [*282] geographical reach are inevitably circumscribed by time and space. A diatribe delivered to a pre-literate audience (a) reaches only those who were physically capable of traveling to the location where it was delivered and (b) survives only imperfectly in the idiosyncratic memories of those who were present to hear it. These characteristics, plus the fact that one could not speak anonymously, mean that it is relatively easy for those in power to control speech by exerting informal pressures to discourage speech that they consider undesirable and/or by using force against those whose speech they deem undesirable.
The development of written language makes it somewhat more difficult to control speech because the speaker can use script to transcend the geographical and temporal limitations inherent in face-to-face oral communication. A dissident can transcribe his diatribe and send it to a geographically dispersed audience, who can read the diatribe and pass this preserved speech on to others. Script literacy does not, however, create significant control problems for those who are determined to ensure that speech stays within what they consider acceptable bounds: Each copy of the diatribe must be written, or transcribed, individually; the dissemination of speech remains limited in scale since this is a time-consuming process and there may be few literate dissidents. Additionally, because it is likely that only a small proportion of the populace will be literate, and because there is a good chance that each individual's handwriting is distinctive, it is relatively easy for those concerned with controlling speech to identify the authors of the diatribes and take action against them.
All this changed with the availability of communication technologies, the first of which was the printing press. n23 Using a printing press, one can produce hundreds or even thousands of copies of a transcribed diatribe quickly, cheaply, and anonymously, with the copies being distributed over as wide a geographical area as physical transport allows. The copies, which perfectly record the substance of the diatribe, can be preserved or passed on to others; the substance of the diatribe survives to influence later readers, and perhaps shape future diatribes. It did not take those in power long to realize the dangers that printing posed to their ability to control speech: n24 The first printing press was brought to England [*283] in 1476, and by 1538, a Crown "proclamation required a license from the Privy Council or a bishop before any English book could be printed." n25 The licensing system lasted until 1694, n26 when it was abolished, common law courts began to use the common law crime of seditious libel - along with blasphemy and obscenity - to control speech. n27
Part II.A outlines the American history of these common law crimes and the other offenses that have been employed to control speech. These devices survived the adoption of the First Amendment and persisted well into the last century, long after communication technology had expanded well beyond the use of the printing press; n28 indeed, some of these devices are still in use. n29 This is not surprising because all pre-cyberspace technologies had one thing in common: Printing, cinema, radio, and television disseminate identical content that has been generated by or on behalf of a broadcaster to an audience that is composed of many individuals; the audience's role is passive, to receive the speech, as given, without the ability to respond or to modify. By the mid-twentieth century, these modalities had become the dominant [*284] modes of disseminating information and opinion. Economic forces dictate that those who decide what content to disseminate will identify with the social and political status quo, so there was little need to resort to formal measures - such as licensing or criminal prosecution - to ensure that this content stayed within "acceptable" bounds. n30 The attitudes and allegiances of those who controlled these various media outlets acted as an empirical "filter," ensuring that undesirable content was not broadcast to the American public. Criminal prosecution was needed only to deal with the outliers, i.e., with those who persisted in publishing "questionable" content on a limited scale, n31 and with their patrons. n32
The dominance of these modalities of mass communication is being undermined by the rise of the Internet and the use of cyberspace to communicate. n33 Cyberspace has the capacity to become [*285] the ultimate marketplace of ideas: Anyone with access to a computer connected to the Internet can "publish" ideas and information. The pragmatic, empirical "filters" that are an intrinsic aspect of existing mass media disappear, and one can share whatever speech they like with the world - recipes, diatribes, innermost thoughts, sexual exploits and fantasies, conspiracy theories, information, misinformation, etc. This creates new dilemmas for law, especially for American law with its First Amendment guarantee of free speech. The rise of cyberspace communication will test the American commitment to the notion of free speech because a complacential bromide has become a reality; for the first time in history speech is truly "free." This is a matter of concern for some who argue that it is necessary to adopt new, formal methods of controlling speech that is disseminated via the Internet, including the use of criminal sanctions, because the pragmatic, empirical "filters" that govern speech disseminated by radio, cinema, television, and conventional print media do not constrain cyberspace communication. n34 The viability of this argument is considered below: Part II reviews the criminalization of speech in Anglo-American history and Part III analyzes the extent to which criminal liability can, and should, be used to control cyberspace speech.

III. Complicit Publication: Imputing Criminality to Communication
"We educated no murderers. The contents of the articles which I wrote could not have educated murderers." n325
Cyberspace democratizes communication by eliminating the tacit, pragmatic filters that limit what is disseminated by the communication modalities that dominated until the late twentieth century, i.e., printing, cinema, radio and television. n326 Cyberspace makes speech truly "free" for the first time, and in so doing, creates a challenge for law, especially for American law with its professed commitment to free speech: Can social order co-exist with the perfectly unrestrained dissemination of ideas and informa-
tion?
To maintain social order, it is necessary to proscribe certain types of behavior. The proscribed behaviors are those that cannot be tolerated if organized social life is to exist because they produce socially undesirable "harms;" for the most part, they involve patterns of victimization, individuals preying on each other. The behaviors are proscribed by defining them as "criminal" and sanctioning those who flout the proscriptions by engaging in the outlawed conduct. n327 And although criminal proscriptions do vary across social systems, there is a notable level of consistency in a core set of prohibitions that are designed to protect the interests vital to every society: The safety of persons; the security of property; the stability of the government; and the sanctity of certain moral principles. n328 No society can survive if its members are free to harm each other at will, appropriate each other's property, [*336] undermine the political order, and/or flout the moral principles that the citizenry hold dear.
Consequently, every society will formulate penal prohibitions defining (a) crimes against persons (e.g., murder, assault, rape); (b) crimes against property (e.g., theft, arson, fraud); (c) crimes against the state (e.g., treason, rioting, obstruction of justice); and (d) crimes against morality (e.g., gambling, defiling a place of worship). n329 There will be varying degrees of consistency in these prohibitions. By far the greatest degree of consistency will occur in the first two categories because they represent the malum in se crimes; these are the absolute prohibitions a society must establish to maintain a modicum of social order since they outlaw the [*337] direct infliction of "harm" by one person upon another or others. n330 There will also be consistency as to a core of offenses in the third category because every society must protect its basic governing processes; n331 but there will be more overall deviation in this category because societies vary in the extent to which they are willing to tolerate political dissidence. n332 The least amount of consistency will exist as to offenses in the fourth category; these prohibitions are the product of a society's values and religious principles, and therefore tend to be more idiosyncratic in nature. n333
Criminal proscriptions targeting the content of speech have historically played a minor role in Anglo-American law. Content-based proscriptions did not really appear until the first great "information revolution" - the proliferation of the printing press - made it possible to disseminate ideas and information to a wide audience. n334 Perceiving this as a threat to the existing social order, British law reacted by creating two new crimes against the [*338] state (seditious and criminal libel) and two new crimes against morality (obscene and blasphemous libel). n335 As Part II explained, these crimes became part of American law, but only one - obscenity - survives, the others having foundered on the First Amendment or fallen into disuse.
The second great "information revolution" has just begun but already ideas and information can be disseminated faster, more inexpensively and on a wider scale than has ever been possible before. In addition, at this point, it is simply not possible to predict what cyberspace communication will become in, say, the next century; unlike printing, which is a static technology, computer-facilitated communication is a dynamic technology that can evolve into new and ever-more complex forms. Any attempt to develop law and policy in this area is, therefore, necessarily an exercise in speculation. n336 It is, however, reasonable to postulate that the pragmatic constraints limiting the amount and type of speech that is disseminated will be significantly reduced in importance, if they do not disappear entirely.
That brings us back to the question posed at the beginning of this section: Can social order co-exist with the perfectly unrestrained dissemination of ideas and information? Or to put it another way, as the dissemination of ideas and information is constrained less and less by pragmatic filters, will societies find it necessary to proscribe the dissemination of at least certain types of speech on the premise that it creates a risk of "harm" to persons, property, the state or morality?