Date:         Mon, 14 Oct 1996 19:34:43 -0500
Sender: Legal Scholarship Network <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>
From: Alan Lewine <Alan_R_Lewine@SSRN.COM>
Subject:      Cyberspace-Law #40: Free Speech 1
To: Multiple recipients of list CYBERSPACE-LAW
              <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>

                    CYBERSPACE LAW FOR NON-LAWYERS

                  Topic: Free Speech: A Brief Road Map

                (Number 1 of 20 on the topic Free Speech)

                           E-Mail Number: 40

                      Date Posted: 14 October 1996

                       *  *  *  *  *  *  *  *  *


     FREE SPEECH 1:  A BRIEF ROAD MAP

     There are four basic steps in most free speech analyses.
     The next several messages will describe these steps in more
     detail, but let us introduce them up front:

     1.  Determine whether the *government* is imposing the
         speech restriction.  U.S. Constitutional free speech
         guarantees apply only to the government (any federal,
         state, or local agency, including public universities
         and public employers).  If the speech restriction is
         imposed by a *private* entity, the First Amendment does
         NOT apply.

     2.  Determine in what capacity the government is acting:
         -  as SOVEREIGN (passing general laws regulating
            people's conduct),
         -  as EMPLOYER (regulating what its employees can say,
            on or off the job),
         -  as PROPRIETOR (regulating what can be said on its
            property, including its computers),
         -  as K-12 EDUCATOR (regulating what public primary or
            secondary school students can say in school),
         -  as UNIVERSITY EDUCATOR (regulating what college or
            university students can say on campus), or
         -  as SUBSIDIZER or SPEAKER (paying for a certain kind
            of speech).

     3.  Determine whether the speech involved falls
         -  in one of several *unprotected* categories (such as
            obscenity or threats),
         -  a few categories that get *intermediate protection*
            (such as commercial advertising),
         -  or has *full protection*.

     4.  Apply the appropriate test determined by your answers
         to questions 2 and 3.

     Four warnings:

     A.  As usual, this is a complicated field, and much of what
         we say will in some measure be an oversimplification.

     B.  For constitutional purposes, "speech" includes writing,
         pictures, music, video, theater, dance, and quite a few
         other forms of expression.  Whenever we talk about a
         "speaker," we mean to include anyone who uses cyberspace
         to communicate words, pictures, or sounds.

     C.  Keep in mind that all these rules apply only to
         *American* free speech guarantees.  The rules in other
         countries may vary dramatically.

     D.  What we say here is tailored to the special problems of
         cyberspace -- we'll largely omit some important
         doctrines that are not very relevant online, so don't
         assume that everything we say is equally applicable in
         the offline world.


             * * * * * * * * * * * * * * * * * * * * * *
                              authors:

             Larry Lessig    David Post    Eugene Volokh

             * * * * * * * * * * * * * * * * * * * * * *


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         Yours virtually,
         Alan Lewine
         Cyberspace-Law Listmeister
         Alan_R_Lewine@SSRN.com