Oh, I can remember those middle school report cards, when a math teacher would write about me, “he sometimes doesn’t know when to stop expressing his own views.”

            Freedom of speech is both among the least and among the most appreciated of our fundamental rights.  But people obviously have very different perceptions of the value of speech.  Recent surveys by think tanks have shown that the American public does not put freedom of speech high on its priorities of personal liberty.  Some people think it should be curtailed and look upon unsupervised use of the Internet as they look at personal gun ownership. More than once I have been flamed on Internet discussion boards for venting unpopular or politically incorrect opinions (of pitting “words against people”) by people claiming to be “average joes.”

            In both the family and traditional workplace, cooperation and helping people feel comfortable with themselves are often more valued than “telling the complete truth.”  While some people seek to be movie or pop stars, and others may want their “15 Minutes of Fame,” others see public visibility as a negative possibility, an invasion of privacy or interference with family. 

            Yet privately-sourced speech has always been as a threat.  When the printing press was invented, publisher needed a “license” to publish.  At several times in our history we have had strong sedition laws (even criticizing the draft during World War I) despite our First Amendment.

            Traditionally, the commercial publishing world and the media world have been preoccupied with turf, financial track record, and other parameters relating to traditional business models.  It was hard for new authors or artists to be heard at all.  With the rise of cheaper desktop or on-demand publishing (including cooperative publishing) and especially the World Wide Web, it has become possible for any individual to make his views and contributions known with very little investment or previous track record, if the “content” is original and interesting enough. The World Wide Web presents a stark potentiality: a posting by anyone on an unrestricted domain may generally be viewed almost immediately from (except for some censorship) almost any personal computer on this planet.  It’s relatively simple to become “famous” with constructive speech—I recall that line in Cannery Row (1982) “some people live here because they don’t want anybody to know them” and the lead line of show Cheers (I want to go where everybody knows my name)!  

            This should not be confused with the flash-in-the-pan dot-coms, many based on superficial ideas of high-volume marketing of superficial content. What is purported is that an author may now publish himself and gradually attract an audience before having to prove that it makes easy money, to that eventually he may make his expressions commercially successful. This possibility is subtle and probably will not be noticed by many until they feel that their turf may be encroached.

            But there are many ways that these promising opportunities may be jettisoned.  Congress has already tried to control the Internet with strict censorship, supposedly to “protect children,” especially those whose parents are too pressed to watch them.  In 1996 it enacted the Communications Decency Act (CDA), which tried to replace the idea of obscenity with an inflexible concept of “indecency,” but also tried to outlaw discussions of abortion and tried to hold ISP’s responsible for what their customers do.  The Supreme Court gave this law its deserved demise in 1997, based on “overbreadth” (lest this very web site could not exist). Congress tried again in 1998 with the Child Online Protection Act (COPA or CDA II), which tried to be more “reasonable” by censoring only commercial speech with a “harmful to minors” standard and allowing electronic verification of adult status as a defense.  But the technological remedies offered were infeasible for all but large operations, and the definition of “harmful to minors” was so self-contradictory that it could never be complied with.  So it also went down the tubes, with a Third Circuit opinion discussing the topology of the Internet.  Other controversies, perhaps more containable, continue, such as the use of child filters in public libraries.

            There will inevitably be questions about self-publishing and freelance “professionalism.”  Some may say that it is unprofessional to self-publish (or even write at all) unless one can do it for a living full time (as if profitability or “earnings” proved a professional product empirically). Others may maintain that all publishing should have third-party supervision to be credible to the consumer—and in this regard if a freelancer can publish in many competitive sources at least he is less likely to find a “cartel” limiting his ideas.  Computer geeks tell me that it is “ethically” more important to enable others to speak by technical facilitation than it is to speak oneself.  Media risk policies may object to the lack of supervision of self-publishers. My own take is that a gradual approach (one which allows one to keep paying the rent and doesn’t require taking investors’ or even friends’ and relatives’ money, not to mention going public and then dealing with those earnings warnings) is acceptable if one has a timeline for economic self-sufficiency (of the writing and closely associated activity) in mind. Expressive political writing could be supplemented by a mechanism to give others the chance to respond and build a dialogue. 

            The Internet has posed a variety of copyright and related issues in video and music, as peer-to-peer technology has forced the evolution of a whole new set of practices. Again, the idea of one teenage man, and about 80 hours of intensive programming, were enough to threaten a whole industry.

            But there are still many murky areas that are just now beginning to be explored in legal and professional circles.  I can list a few here:

  Are ISP’s “publishers” or are they just communications providers like phone companies?; holding ISP’s responsible for their customers would have a chilling effect

  Should publishers or purveyors of violence (both individual authors or web operators and corporate movie studios), pedophilia or hate be held legally responsible when their displays are imitated by children or mentally incompetent people?

  When do employees who publish controversial literature on their own create a conflict of interest in the workplace?

   Does commercial intent affect the way fair use, invasion of privacy or publicity rights is weighed?

   Is self-publishing as “credible” as traditional trade publishing?  Is it, when viewed from a consumerist point of view, deceptive and can it be disruptive to more traditional forms of trade publishing, or does it introduce mainly offer welcome new ideas and formats for intellectual property and additional material for the public?  Do people who self-publish (without a profit) threaten people who write professionally for a living?  

   When may persons only tangentially involved with a copyright or other intellectual property infringement (like printers, stores, employees) be held legally accountable?

   Does the ability of search engines to make a person visible publicly present legal problems? Should employers try to discern a person’s personal activity or occurrence on the web?

   Should people be able to make anonymous postings on the web without fear of subpoena (as by employers)?

   Should employers use computer technology to regiment the workplace?  Should they have zero-tolerance policies regarding non-business use?

   Is inaccurate or intentionally deceptive information on the Internet a real threat to the fair trading of securities?

    Should writers be expected to indemnify much deeper-pocketed publishers against the possibility of frivolous lawsuits? Or could this have a “chilling effect”?


            With intellectual property, more than perhaps other areas, there is always some tension between professionalism (including supervision and bureaucracy) and innovation, between new paradigms for virtual identity (that is, domain names) and traditional commercial branding and trademark, between established rights to privacy, publicity and royalty when compared with the genuine value of new expression that builds upon the work or contributions of others. The new world of small-scaled publishing and self-expression offers the likelihood that finally the public can develop an interest in understanding how different kinds of people think.  But it is important to remember that real intellectual innovation and breakthrough tends to come from individuals relatively unencumbered by bureaucracy and conventional ideas of numerically measured “success “.  Naptser already provides an important example.   


ãCopyright 2001 by Bill Boushka.   All right reserved, subject to fair use.

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Email me at Jboushka@aol.com