[2931] in cryptography@c2.net mail archive
Re: Gwin: "All but unintelligible"
daemon@ATHENA.MIT.EDU (Anonymous)
Wed Jul 8 14:22:10 1998
Date: Wed, 8 Jul 1998 20:07:03 +0200
In-Reply-To: <413AC08141DBD011A58000A0C924A6D52C35A7@mvs2.teralogic-inc.
To: cryptography@c2.net, cypherpunks@algebra.com
From: nobody@REPLAY.COM (Anonymous)
<http://www.efc.ca/pages/doc/b2000.html>
"The Real Meaning of Free Speech in Cyberspace"
speech by Jeffrey Shallit, EFC at UofT, May 1 1996
To help get at the real meaning of free speech in cyberspace, I'd like to
propose a
distinction between what I call first-class and what I call second-class
speech.
First-class speech is books written by famous politicians or university
professors, and printed by respected publishers, like the University of
Toronto Press, McClelland & Stewart or Key Porter Books. First-class speech
is newspaper columns written by renowned pundits, interpreting the news for
us and telling us what to believe. ...
Second-class speech is everything else. It's the right-wing extremism of
talk radio,
the pornographer's blue movies, the communists' handbills that implore us
to "Smash the State". It's citizen's band radio, the evangelists' pleas for
more money, and TV shows like "Oprah" and "Geraldo". In second-class
speech, respected pundits don't necessarily rule the day. Second-class
speech is dirty, unorganized, uncontrolled, and unlicenced. Second-class
speech is global. Second-class speech makes us blush. Second-class speech
is disturbing and uncomfortable, because there are, from time to time, some
four-letter words, and some name-calling. In second-class speech, the
experts often take a back seat. Second-class speech means that we get to
talk, and they -- well, if they don't listen, at least we still get to
talk. Second-class speech is sarcastic, insensitive, and frequently ignorant.
...
2. Cyberspace as a second-class forum.
Now, what's the relevance of this distinction for speech in cyberspace? I
propose
that sometimes an entire medium will be dismissed as a second-class forum.
Here is a law of new media:
A new medium of communication will be regarded as second-class until it
becomes legitimized by first-class speakers.
Film is a good example of this rule. Today, I imagine most of us regard the
freedom
to make and show movies as an obvious corollary of the Charter's guarantee of
...freedom of thought, belief, opinion and expression, including freedom of
the
press and other media of communication... [2]
But it wasn't always that way in North America. For example, in 1915, a US
Supreme Court decision rejected the claim that movies were "expression",
categorizing them as "shows and spectacles" instead. And a "show and
spectacle",
the Supreme Court reasoned, was clearly not entitled to any protection
under the
First Amendment [12].
...
Today the new medium is not film, but the Internet. It follows from this
law of new
media that speech in cyberspace won't get the respect it deserves. And it
doesn't.
....
At 10:20 AM 7/8/98 -0700, Ernest Hua wrote:
>(See quote from the Junger decision below ...)
>
>2. That some large numbers of people find source code
>unintelligible does not make it less expressive. The fact that I don't
>
>Ern
>
>----
>
>[SNIP]
>
>Furthermore, the court in Bernstein I misunderstood the significance of
>source code's functionality. Source code is "purely functional," 922 F.
>Supp. at 1435, in a way that the Bernstein Court's examples of
>instructions, manuals, and recipes are not. Unlike instructions, a
>manual, or a recipe, source code actually performs the function it
>describes. While a recipe provides instructions to a cook, source code
>is a device, like embedded circuitry in a telephone, that actually does
>the function of encryption.
>
>While finding that encryption source code is rarely expressive, in
>limited circumstances it may communicate ideas. Although it is all but
>unintelligible to most people, trained computer programmers can read and
>write in source code. Moreover, people such as Plaintiff Junger can
>reveal source code to exchange information and ideas about cryptography.
>
>
>Therefore, the Court finds that exporting source code is conduct that
>can occasionally have communicative elements. Nevertheless, merely
>because conduct is occasionally expressive, does not necessarily extend
>First Amendment protection to it. As the Supreme Court has observed,
>"[i]t is possible to find some kernel of expression in almost every
>activity-for example, walking down the street or meeting one's friends
>at the shopping mall--but such a kernel is not sufficient to bring the
>activity within the protection of the First Amendment." City of Dallas
>v. Stanglin, 490 U.S. 19, 25 (1989).14
>
>[SNIP]
