CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE

Vol. 13 No. 12 (December 2003)

CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE by Mike Godwin. Cambridge: MIT Press, 2003. 402 pp. Paper, $21.95. ISBN: 0-262-57168-4.

Reviewed by Debora J. Halbert, Department of History and Political Science, Otterbein College. Email: dhalbert@otterbein.edu.

After reading CYBER RIGHTS by Mike Godwin, I would really like to meet him. The book reads as part history of important cyberlaw cases and part memoir of a lawyer seeking to defend free speech rights in the on-line environment. Godwin writes in a personal style that is often humble and unassuming, despite clear evidence that his work has changed national policy on important legal issues as far ranging as on-line libel and cyber-pornography. Godwin's commitment to free speech issues on the Internet and his hard work leave me wondering if he sleeps. Certainly, as his book illustrates, he has used the Internet to help create a sense of democratic community and fulfill the high expectations he holds of the on-line world. Thus, CYBER RIGHTS is both a legal analysis and an underlying dream of what the Internet is becoming.

CYBER RIGHTS was originally published in 1998 and a newly revised version has just been issued for 2003. Godwin focuses on cases where he either directly or indirectly advised people on how to approach problematic issues emerging in cyberspace. The book clearly advocates free speech rights, with Godwin taking the position that speech should remain virtually unregulated. Many of the stories he uses come from the problematic margins where the philosophy of free speech is often the most challenged. The book is especially helpful for people with little to no background in cyberlaw or the controversial issues emerging in cyberspace. For those who have kept current with these debates, the focus on past cases is interesting, but one is left wishing for more time spent on the contemporary issues.

After discussing the problems of free speech generally, and what Godwin calls a "net backlash" against free speech, he specifically takes up issues of libel, speech that is violent and/or hateful, encryption technology and privacy issues, copyright, cyberporn, and the Communications Decency Act. Each chapter does an excellent job laying out the issues and important legal cases as Godwin sees them, describing his own role (if any) in the cases, defining the appropriate law in a way undergraduates would easily understand, and making an argument for why speech should be protected. The book is easy to read and educational in the way it discusses the legal issues.

There are questions I wish Godwin had addressed more specifically, especially given the opportunity to rethink his original claims in a new edition. For example, in Chapter Five Godwin takes up the cause of University of Michigan student Jake Baker who was arrested after posting graphic and violent pornographic fantasies depicting the rape, torture, and murder of women. In one message, Baker used the name of a female student he knew and in other private emails Baker wrote about specific plans to kidnap, rape, and kill women living in his dormitory. Godwin, while in no way endorsing the actual speech, does passionately defend Baker's right to publish this speech on-line. He makes a compelling argument for why the government in this case was only able to arrest Baker by misinterpreting what constitutes a threat. The chapter lays out in a clear and concise manner the law, how it should be applied, how it was misapplied, and many of the challenges that emerge when trying to prohibit clearly problematic speech such as that written by Baker.

The chapter raises important controversies worthy of discussion, but I wish Godwin had spent more time developing free speech issues in the context a reasonable woman standard (instead of a reasonable person standard). Godwin briefly discusses Catherine MacKinnon's work on pornography and speech, but it might have been useful to delve more deeply into the feminist legal perspective of how a reasonable woman standard of threat may be different from a reasonable person's standard.

I understand and agree with Godwin's argument that fantasy posted to alt.sex.stories should be protected, despite the repugnant content. I am more willing to debate the argument that Baker's private correspondence implying imminent intention to act should be considered a threat, especially if one were to apply a reasonable woman standard. Godwin does not interpret Baker's fiction with the name of a real woman, or his non-fiction with no specific women named, as a threat because legally it is not defined as one (p.133). Instead of a free speech issue, this case could have been used as an opportunity to rethink the nature of a threat within the context of a reasonable woman standard. Such a standard starts from the assumption that a culture of violence against women creates an atmosphere where women understand threats quite differently than men do. Indeed, numerous surveys and books detail women's perceptions of Internet communications, and this would have been an excellent opportunity to investigate gender differences rather than advocating an absolutist perspective that endorses speech no matter how threatening to women.

Given the issues Godwin has chosen to discuss, it is laudable that the book engages the reader in the argument instead of having an alienating effect. It would certainly be possible to write a chapter defending Jake Baker that would push away many readers. I don't think Godwin does this. He provides sharp and detailed analysis, and I am guessing that had he chosen to deal with the issues I raise, his arguments would have been convincing and I would agree with his ultimate assessment.

Aside from controversial free speech issues, this book offers the reader some very interesting insights into how to construct arguments to defend free speech and how the author attempts to define public opinion about the Internet by creating good memes - ideas that "become part of a person's (or culture's) value system or worldview" (p.49). I found Godwin's rhetorical statements carefully crafted and containing especially useful insight. When the author draws from his personal experience to discuss strategies for gaining media attention, developing sound copyright policy for the net, and developing ways to change public policy to benefit the public, the book is at its best. Godwin also excels when he defends what he calls "radical pluralism" and discusses how the best and most democratic communities must be planned-they do not happen accidentally.

One of the problems with writing a revised edition of a book is deciding how to adapt it for the new edition. In this case, I wish more time had been spent rethinking the book in light of contemporary cases and examples instead of adding short sections and footnotes that bring the reader up to date in 2002. The heart of the book remains court cases that were controversial and important in the late 1990s, but with only a few exceptions (the Digital Millennium Copyright Act being one), the author's analysis remains focused upon these past cases and does not really assess their contemporary importance.

For example, in the final chapter of the book, Godwin offers two predictions for important future cyberspace issues-encryption and copyright (p.359). It is only in the footnotes that he updates this prediction. I would have preferred to see the prediction engaged more directly and perhaps updated for the next five years. Copyright has certainly become a key consideration, but perhaps other themes besides encryption and terrorism (the 2002 update) might be worth investigating. One specific theme that Godwin only mentions, but that deserves more detailed development as a serious trend, is the lack of public debate on cyberspace issues.

One final example of how the book could have been stronger can be found in the three chapters addressing cyberporn (Chapters 8 - 10). These three chapters, which total over 100 pages, describe in detail the efforts of the author and several of his colleagues to derail the publication of an article on cyberporn in TIME magazine that was based on a flawed study, the passage of the Communications Decency Act (CDA), and the litigation designed to find the CDA unconstitutional. These chapters provide a day-by-day description of the author's efforts to counter the hysteria surrounding cyberporn generated by the publication of a fallacious study produced by an undergraduate and manipulated by the religious right into an important political issue. Despite Godwin's best efforts, the study was published as part of a larger cover story on cyberporn in TIME magazine. At times this narrative is redundant and could have been significantly shortened.

While the specifics of the on-line debate over the credibility of this cyberporn study were interesting, I would like to have seen this information streamlined and applied to the contemporary debate. In other words, what is the current problem here? Are people still significantly wrapped up in an hysterical reaction to what the Internet will bring into their homes? What is the state of cyberporn and free speech after the Supreme Court decision in 1997 that found the CDA unconstitutional? Have other free speech issues emerged that have the potential to undermine free speech on the Internet as the Communications Decency Act has?

I raise these questions about what is happening now, because a number of changes have occurred over the past five years that deserve attention. And, I want to know what new strategies Godwin has developed to resist the privatization of the Internet and the strangulation of free speech. I want to hear the stories behind the recent controversies - the struggles over the DMCA, more about anti-circumvention devices, the use of licensing agreements to undermine privacy, the ways the Internet has become more (or less) democratic, the increasing tension between copyright and free speech, and whatever else may be impacting free speech on the Internet for the next five years. I am hoping, in other words, that Mike Godwin will write a new book.

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