New Wine, New Bottles: Private Property Metaphors and Public Forum Speech

Abstract

The controversy over regulating indecent material on the Internet, being won so far by speech proponents, reminds one of Biblical admonition against putting new wine in old bottles. Justice Souter was right to surmise that “if [members of the court] had to decide today … just what the First Amendment should mean in cyberspace … [they] would get it fundamentally wrong.” The Supreme Court Justices’ questions comparing the Internet to a telephone, radio, and a public park, as they heard a challenge to the Communications Decency Act, were described as by a Washington Post writer as “Nine Justices in Search of a Metaphor.” Searching for alternatives, the Court has fallen back to “old bottles” like FCC v. Pacifica Foundation and the public forum doctrine, engendering confusion. This article focuses on the Court’s discussion of the public forum doctrine in Denver Area E.T.C. regulation of cable TV. The unanswered questions that Denver Area E.T.C. as they apply to the Internet and the Internet pose make it important to revisit the private property metaphors used in public forum case to see what assumptions they make about individual speech relationships with government. Heeding Justice Souter’s admonition to “do no harm,” this article will focus more on what is problematic about the existing metaphor than propose what alternatives should take its place for the new communication technologies. However, if we can define what is happening symbolically through the public forum doctrine, we are on the way to reconstructing an ethics of citizenship and government service that will help us name new metaphors for the new world.

Keywords: First Amendment, public forum doctrine, the internet, Communications Decency Act, Denver Area E.T.C., FCC v. Pacifica Foundation, Justice Souter, metaphors, new communication technology