Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex

Abstract

The success of the new electronic media in the "marketplace of marketplaces of ideas" -- where information providers compete for that scarcest of resources, the attention span of modern man -- will turn on how well they can satisfy listeners' desires. This article discusses several (generally little-noticed) free speech issues with an eye towards how First Amendment doctrine can (and sometimes can't) accommodate listeners' concerns. Specifically, it talks about: (1) private speech restrictions in electronic conferences, why they're often a good idea, and why they're generally constitutionally protected; (2) state action questions that arise when edited conferences are run on government-owned computers or by government employees; (3) the surprising potential applicability of some telephone harassment laws to cyberspace; (4) the even more surprising and troubling potential applicability of "hostile public accommodations environment" claims; and (5) the implications for cyberspace of state laws barring the public display of harmful-to-minors material.