Uncommon Carriers: ISP's As the Weak Link in Freedom of Expression

Most of us have at least a vague recollection of the name "John Peter Zenger" from grade school. Zenger was an itinerant printer from Germany who agreed to become publisher of the New York Weekly Journal in the 1730's. Zenger had little comprehension of the contents of the paper, which were largely supplied anonymously by highly placed New Yorkers opposed to the present governor. In 1735, the governor obtained an indictment of Zenger for seditious libel; being unable to identify or reach the anonymous authors, he naturally decided to pursue the available victim, the owner of the printing press.

In fact, the oppression of the middleman did not begin with Zenger; in the print world it is fully as old as the printing press. The new invention hardly existed before French kings hung and burned printers and British law authorized the smashing of printing presses for their publication of unlicensed works. There is a philosophy that authors are slippery, hard to identify and slide across borders very easily; they may be anonymous or even dead; closer to hand and easier to harm is the owner of a large and immovable piece of property, the press. Harm enough printers and the remaining ones won't dare to publish the speech you dislike.

We are seeing a resurgence of this philosophy on the Internet, without any recognition, though, of its near relationship to Zenger, King Francois I, or the British licensing laws. Today, anyone who dislikes a Web page for any reason--copyright infringement, hate speech, alleged links to other disfavored sites, or opposition to beliefs held dearly--simply leans on the ISP to pull the plug on the user's page. Recent culprits have included the Anne Frank Center, the Church of Scientology (COS), the Software Publisher's Association (SPA), and the Simon Wiesenthal Center. All of these organizations have either demanded that an ISP intervene to censor or prevent a user's speech on moral grounds, or have threatened or pursued legal action against the ISP. COS, for example, sued both Netcom and a smaller ISP for carrying email messages and Usenet posts from users which infringed the Church's copyrights. The SPA sued Community Connexion, a an ISP, for hosting unspecified Web pages allegedly promoting piracy or containing links to computer crime sites.

Some years ago, a significant federal court case, Cubby v. Compuserve, set a standard for these kinds of cases. The plaintiff had sued Compuserve for an allegedly libelous message posted to one of the service's forums. The court held that an online service provider could not be held liable for illegal speech of which it did not have notice. The court relied on a Supreme Court case from the 1950's, Smith v. California, which held that a bookstore owner was not responsible for knowing the contents of all books in his store.

Though the generally accepted Cubby rule was a major step forward for service providers, which can generally not be blindsided with legal attacks involving user communications of which they are unaware, Cubby provides no protection for users. Litigants have simply learned not to sue an ISP without putting it on notice first, and most ISP's simply aren't going to spend big bucks defending your freedom of speech. They are likely to pull the plug on your web pages instead of fighting a plaintiff with deep pockets. Thus, it remains a favored tactic of a wide variety of litigants to eliminate disfavored speech by threatening the ISP.

A lobbyist for a cyber-libertarian organization told me the other night that an early version of Congressman White's "harmful to minors" bill, which was presented as a less censorious alternative to the CDA, contained blanket immunity from suit for ISP's. Powerful lobbyists representing content owners--the copyright holders who so favor the tactic of exerting pressure on ISP's--won the deletion of the provision before the bill left committee.

Print has now won more substantial protection than it had four hundred or two hundred and fifty years ago; and it would be extremely rare today to see a lawsuit against a printer for an offending publication. Equally unknown is the spectacle of forcing the phone company to take my line away because I use the phone for purposes of which you do not approve. Print is held sacred and the phone company is a common carrier which has no right to intervene in user speech, and is correspondingly immune from suit.

ISP's, of course, are not common carriers and should not be; this status is granted only by legislation and typically carries with it a monopoly and regulation of pricing. But, so long as anyone can terminate your speech by threatening your provider, the full application of the First Amendment to the Internet will fail to give us needed protection or guarantee diversity of speech. (When your ISP turns off your Web page, no First Amendment violation has occurred, because your ISP is not the government, and only the government can violate the First Amendment.) An excellent solution to this problem is the one proposed by Congressman White and killed by lobbyists: don't make ISP's common carriers, but legislate immunity for them from liability for user speech distributed in the course of their ordinary business. Only a shield law for ISP's will back off the bullies.