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

Eugene Volokh*

Introduction

I. Edited Conferences

II. Government Protection of Listeners Against Offensive Messages III. Sexually Explicit Material and Minors Conclusion
 
 
 
 
INTRODUCTION
  
               
        Speakers' desires are fairly simple: generally, they want more listeners.1 But listeners don't just want more speakers talking to them. Listeners want more control over their speech diet--a larger range of available speech coupled with greater ease of selecting the speech that's most useful or interesting to them.  
       
  
               
        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.2 The new media have one significant advantage: they can give listeners many more choices. But for listeners, that's not enough. For listeners, what the new media omit--time-wasting junk, insults, material that might be harmful to their children--is just as important as what they include. Listeners care about this outside the online world, and they care about it just as much online.  
       
  
               
        In the following pages, I will discuss three categories of online speech issues and look at them partly, though only partly, through the lens of the listeners' interests:  
       
  
               
        1. Edited Electronic Conferences: One of the most significant features of the new media is the interactive electronic conference bulletin board, newsgroup, discussion list, or the like. People who listen in on these conferences (and most participants spend much more of their time listening than speaking) want speech that's relevant to their interests, readable, reliable, and not rude. Sometimes an open, unedited electronic conference can provide this, but often it can't. Often--as conference operators have been learning--editing is critical to making online speech worth listening to. 
       
  
               
        At the same time, editing is content control, the sort of thing that, if the government did it, would be called "censorship." It includes limitations on who may speak, removal of people who speak badly (in the editor's opinion), the deletion of inappropriate messages, and automatic screening of messages for profanities. Many have expressed concern about this sort of private speech restriction. 
       
  
               
        In Part I, I will defend the propriety of private, nongovernmental, content control on electronic conferences. I'll argue that: 
       - Conference operators should generally have the right to decide what's said on their conferences and who says it. 
       - Libel law generally ought not penalize conference editors by imposing on them extra risk of defamation liability beyond what operators of unedited conferences must bear. 
       - The conference operator's power to edit should remain even if the conference is run on a government-owned computer or if the operator is a government employee.		 
       
  
               
        2. Avoidance of Offense: Listeners don't want to hear material that offends them. This doesn't mean they only want to hear what they agree with; controversy is usually more fun than agreement. But some speech is offensive enough that its emotional cost to the listeners can exceed the informational benefit they derive from the conversation. 
       
  
               
        No one likes to be personally insulted. No one likes to hear one's race, sex, religion, or deeply held moral beliefs rudely attacked. Often, we're discomfited even by watching others argue rudely with one another. Some speech like this can be annoying; some can ruin one's mood for hours. People don't go to parties where they think it likely that the other guests will be rude to them--neither do they want to participate in electronic conferences where this happens. 
       
  
               
        In Part I, I'll argue that private editing is an important tool for giving people the opportunity to interact in the polite environment they may prefer. In Part II, I'll discuss what the government may do to protect people from speech that offends them when private editors can't or won't edit it out. I'll suggest that: 
       - In general, the government ought not be able to restrict offensive speech in electronic conferences (unless it's a threat or falls into some other Free Speech Clause exception). Some telephone harassment laws, and possibly some aspects of hostile environment harassment law, seem to already impose restrictions on online speech,3 but to the extent they do, they're unconstitutional. 
       - On the other hand, the government should be more able to restrict one-to-one speech--such as personal e-mail--that's aimed at unwilling listeners; such restrictions protect unwilling listeners while still leaving speakers able to communicate with willing ones. The best way to implement such a restriction would be to let listeners demand that a speaker stop sending them direct e-mail, a power people already enjoy with regard to normal mail.4 Such a rule would be better than direct extensions of telephone harassment laws, which often embody dangerously vague prohibitions on speech that's "annoying" or "harassing."		 
       
  
               
        3. Giving Parents Control Over Their Children's Access: Finally, online as well as offline, parents are concerned about their children gaining access to sexually explicit materials; and, online as well as offline, the question becomes how the law can restrict children's access without also restricting the access of willing adult listeners. In Part III, I'll suggest that: 
       - Some laws may already prohibit the online posting of nonobscene sexually explicit material that might be "harmful to minors" (a term of art described below).5 
       - These laws have been upheld in the offline world, partly because they've been seen as not imposing much of a burden on adults who want to get the material. Online, though, where it's hard to tell who's a child and who's not, these laws are much more burdensome to adult viewers. 
       - These laws ought to be unconstitutional online because there's a less speech-restrictive alternative which could protect children while maximizing the choices available to adult listeners: a self-rating system that would identify which images or discussions are sexually explicit. This approach will still impose something of a burden on speakers and adult listeners, but this burden should be constitutionally permissible.		 
       
  
               
        In focusing on listeners, I don't mean to suggest that listeners' rights are generally more important than the rights of speakers. After all, the Free Speech Clause guarantees "the freedom of speech," and much of the Court's doctrine has--in my view correctly--protected speakers, even where most listeners might object to what the speakers are saying. 
       
  
               
        But this very emphasis on the rights of speakers can lead people to ignore the rights of listeners, rights the Court has also recognized. And worse still, focusing exclusively on the rights of speakers can make us ignore how critical listener satisfaction can be to the survival of the new media. If we think the new media can be valuable tools for public discourse, it's worth trying to make sure that the law doesn't make them unattractive to the listening public. 
       
I. EDITED CONFERENCES
 
               
 A. Electronic Conferences and Their Hazards 
       
  
               
        Listeners want to hear more of what interests them and less of what doesn't. This becomes especially important for electronic conferences, some of the biggest speech activities on the infobahn. 
       
  
               
        These conferences are electronic "places" where people from all over the world can communicate with one another on a particular topic, from the law of government and religion6 to Jewish issues in Star Trek.7 Electronic conferences can be organized as Internet discussion lists;8 as Internet news groups;9 or as special dial-in services, ranging from the big public ones like Prodigy, America Online, and Compuserve, to the smaller and more specialized ones like Counsel Connect, to single-PC bulletin boards that may have only a few hundred subscribers.10 Regardless of implementation, though, these conferences are means by which each of hundreds or thousands of participants can talk to all the others, and will have to listen to what the others have to say. 
       
  
               
        The conferences are like faculty or law firm symposia, where everyone present can speak (though not all at once) and comment on what everyone else has said. They are, however, symposia that go on continuously, and that can include hundreds of people who've never physically met one another. And, as in a symposium, though everyone has an opportunity to speak, the overwhelming majority of participants are "lurkers," people who only listen. 
       
  
               
        The advantage of these conferences over the traditional media is their openness and interactivity; but this is also their great risk. An electronic conference is a compilation of the messages (or "posts") written by all its participants, and as with any compilation, its value lies both in the substance of the materials it contains and in their selection. As with other compilation media, such as radio programs, magazines, or live conferences, people look for high ratios of wheat to chaff (or, as computer people say, "signal to noise"): electronic conferences in which they find a large fraction of the speech to be interesting.11 
       
  
               
        I've seen many users turn away from electronic conferences, even conferences on topics that interest them, because the signal-to-noise ratio was too low. Conference users have limited time, and messages that are irrelevant to the conference topic, messages from people who don't know what they're talking about, and messages that are repetitive all make the conference less valuable. People want conversations of higher quality than talk radio.12 
       
  
               
        Conference users also want an emotionally congenial environment. It may be a pleasure to listen to people discuss an issue civilly, but a strain to listen to them yell at each other. Even if the intellectual content is the same, the tone of the speech can be a serious burden. 
       
  
               
        Few physical conferences, for instance, invite speakers who insult one another. Many newspapers refuse to print certain profanities. We don't go to clubs or parties where we know boors are likely to be declaiming; similar online conduct can make an electronic conference much less valuable for us. One bad apple on a discussion list can spoil many people's enjoyment. And as more people get online and begin to use online resources, the risk of information overload and of the occasional rude participant escalates. 
       
  
               
        Most electronic conferences try to keep both the signal-to-noise ratio and civility high by moral suasion.13 Each conference has an official topic; people generally know not to stray too far from it, and if they do, others might ask them to "take it off-list", continue the discussion in personal e-mail rather than on the electronic conference. When people start getting rude, others might chime in to quiet everyone down. Most conferences have conference operators who are in charge of the technical details of conference administration; they often also take responsibility for informally keeping everyone in line. 
       
  
               
        Increasingly, though, conference operators have begun to edit more coercively, in several ways: 
       
  
               
        1. They may limit who can access their conference. Counsel Connect, for instance, is limited to lawyers; the LAWPROF Internet discussion group14 is limited to law professors. The theory is that those are the people who are most likely to contribute something valuable to the discussion.15 List operators have discretion, of course, to waive these rules either in favor of admission or of exclusion in particular cases. 
       
  
               
        2. They may kick out troublemakers, people who have proven to be consistently off-topic, or rude, or kooky as always, in the operator's judgment.16 
       
  
               
        3. They may automatically filter all messages to exclude particular words, such as profanities.17 
       
  
               
        4. They may manually screen each message that's sent to the conference before actually passing it along to all conference participants. This can, of course, be a time-consuming process, though for many conferences it might not be prohibitively so. 
       
  
               
        And, as with newspapers and physical conferences, editorial decisions make a big difference in the conference content on three different levels. First, editing decisions directly dictate what can be said. A conference that's open to everyone will be different from one that's open only to law professors. A conference that allows militant and even rude debate will be different from one that requires more gentility. A conference on, say, religious freedom that doesn't allow posts which rely on explicitly religious foundations (on the theory that such posts are likely to distract discussion into unresolvable theological arguments) will be different from one that takes another approach. 
       
  
               
        Second, editing one post can cut short a whole discussion. Because conferences are interactive, one post leads to others. Excluding one rude message may avoid dozens of messages responding to it, responding to the responses, commenting on the merits of polite debate over rude debate, and so on. 
       
  
               
        Third, including or excluding certain messages will change who participates. Some people will get involved in polite discussions, both speaking and listening but will turn away if the discussion turns nasty. Others will participate only so long as there are comparatively few posts that they see as irrelevant. A law professor might be willing to read a law professors-only conference but not be interested in a general public conference, or vice versa. 
       
  
               
 B. The Right to Edit 
       
  
               
    1. The right to exclude content.
 
       
  
               
        Where there are editors, there are speakers who resent being edited out. Prodigy, for instance, has been criticized for its editing practices, which have at times included automatically screening out profanities, deleting messages that denied the existence of the Holocaust, deleting messages criticizing Prodigy's pricing policies (and urging a boycott of Prodigy), and kicking off users who persisted in posting these messages.18 Similarly, operators of Internet discussion lists who try to restrict what's said on the list, and by whom it's said, can expect a good deal of resistance.19 
       
  
               
        Private conference operators clearly don't violate the Constitution by editing, just like newspaper editors don't abridge free speech by refusing to publish a letter to the editor. Some have argued that private providers' use of government-funded or government-regulated Net backbones makes them state actors and thus bound by the First Amendment; this, though, is certainly not so under existing state-action doctrine.20 
       
  
               
        But editing is not only constitutional, it is constitutionally protected. A law that would, for instance, prohibit conference operators from screening messages, or even allow screening for relevance but prohibit screening for viewpoint, would violate the First Amendment. As the Court held in 1974 in Miami Herald Publishing Co. v Tornillo21 and recently reaffirmed in Hurley v Irish-American Gay, Lesbian and Bisexual Group,22 the freedom to speak includes the freedom to create one's own mix of speech. 
       
  
               
        A parade, a magazine, the playlist of a music radio station, and an edited electronic conference are all speech products created by an editor. "Rather like a composer, the [editor] selects the expressive units of the [publication] from potential participants" to create a particular work.23 Restricting the editor's right to edit would be restricting his right to create a particular speech product: it would make illegal the production of certain speech mixes and require instead the production of others. "The choice of material to go into a [publication], and the decisions made as to limitations on the [publication's] size and content . . . constitute the exercise of editorial control and judgment,"24 and this editorial judgment is constitutionally protected from government interference. This is the rule for newspapers and parades, and it should be the same for electronic conferences. 
       
  
               
        Of course, many conference operators don't have a specific ideological perspective they want to communicate. They may just want to spread information about a certain topic and may exclude material only because they think it's irrelevant, impolite, or inaccurate, not because it clashes with their viewpoint. 
       
  
               
        But "a narrow, succinctly articulable message is not a condition of constitutional protection."25 The decision by the St. Patrick's Day parade organizers to exclude one group was protected even though the remaining parade wasn't communicating much by way of a specific ideology. The editorial choices of a nonpartisan newspaper that assiduously tries to avoid all political bias are as protected as other papers' choices. The editing decisions of a conference operator are equally a conscious attempt to create a speech product with a particular content; their claim to being protected exercises of editorial judgment is as strong as that of the decisions of the newspapers or parade organizers. 
       
  
               
        Nor should it be relevant that electronic conferences are less selective than newspapers and magazines. It's true that newspapers and magazines publish only a small fraction of what might be submitted to them, while even edited electronic conferences tend to let through almost all the messages that people try to post.26 But this lower selectivity shouldn't keep the editors' editorial judgments from being protected. 
       
  
               
        Technology eliminates the need to edit for paper-saving reasons, but the editors' desires to edit for germaneness, civility, and even viewpoint remain as legitimate as they are in the newspaper context. Compelling operators to give access to the conferences to everyone probably won't cost the operators anything out of pocket, but it will cost them the ability to create the speech product they prefer. As the Court has held, "[e]ven if a newspaper would face no additional cost to comply with a compulsory access law and would not be forced to forgo the publication of [its own chosen materials] by the [compelled access]," the First Amendment would still prohibit the compelled access law's "intrusion into the function of editors."27 And, of course, Hurley made clear that the editorial function remains protected even when, as in a parade, the editors rarely exercise it.28 
       
  
               
        The Court has, in two contexts, upheld laws that require private property owners to let others speak on their property, but neither of these narrow exceptions should be applicable to electronic conferences: 
       
  
               
        Broadcasting: The Court has tolerated "more intrusive regulation of broadcast speakers than of speakers in other media";29 in particular, Red Lion Broadcasting Co. v FCC30 upheld a rule requiring broadcasters to give time to opposing views. But the Court has refused to extend its relatively deferential scrutiny of broadcasting controls to other media, such as newspapers or cable TV.31 Red Lion has been read as turning entirely on "the unique physical limitations of the broadcast medium"--the physical scarcity of available broadcast channels.32 No such limitations exist for electronic conferences; there are thousands of conferences available to everyone who has Internet access (which includes users of Prodigy, CompuServe, America Online, and similar services). Even if one counts only the three big services, three is still more than the number of cable operators or large local newspapers that serve the typical city. Given that the Court has refused to apply Red Lion to cable and newspapers, I don't see how it could justify applying Red Lion to electronic conferences. 
       
  
               
        Content-Neutral Access Mandates: In two cases, the Court at least partly approved content-neutral speaker access mandates. Turner Broadcasting System v FCC33 indicated that the government may in some circumstances require cable-system operators to leave open some channels for local broadcasters. PruneYard Shopping Center v Robins34 held that state law may require shopping center owners to let members of the public speak in the center's public areas. The more recent Hurley decision, though, makes clear that these cases wouldn't justify even content-neutral access mandates to electronic conferences. 
       
  
               
        An electronic conference, like the parade involved in Hurley or the newpaper in Miami Herald, is a more or less coherent speech product, one whose content is a function of all its components. A parade organizer, newspaper editor, or conference operator may solicit speech from the public, and may decide to let much of it through unedited; but this is just one possible choice on his part, and he might equally well choose to fashion his speech product out of only a certain set of messages. When the government requires a conference operator to include speech that he would prefer to exclude, it's ordering the operator to change the character of the information the conference conveys. Just as a St. Patrick's Day parade which includes an "Irish American Gay, Lesbian and Bisexual Group of Boston" banner communicates something different from a St. Patrick's Day parade which excludes this banner,35 so an unedited conference communicates something other than an edited one. 
       
  
               
        PruneYard, as Hurley pointed out, "did not involve `any concern that [mandated access by other speakers] might affect the shopping center owner's exercise of his own right to speak.'"36 Shopping centers aren't usually in the speech business; "[t]he selection of material for publication is not generally a concern of shopping centers."37 The speech by members of the public didn't interfere with any messages the shopping center was trying to communicate. "The principle of speaker's autonomy was simply not threatened in that case."38 
       
  
               
        It's true that in some cases compelled access to a shopping center can indeed interfere with the center owner's speech. If the owner, for instance, decided to have a patriotic Fourth of July festival, letting flagburning protesters on the property might affect the center's speech as much as would letting unwanted signs into a parade. But such coordinated expressive activity--the use of the shopping center to communicate a message or a set of messages--is the exception rather than the rule. PruneYard didn't foreclose the possibility that, in such a context, government-mandated inclusion of other speakers in the festival would be unconstitutional; as Justice Marshall said in his concurrence, the shopping center owners were "permitted to impose reasonable restrictions on expressive activity."39 And the Court has never suggested that the government could compel access to, for instance, bookstores or holiday displays or other places where access might seriously interfere with the owner's own message.40 
       
  
               
        Turner Broadcasting did involve a limitation on the property owner's speech--the cable operator could no longer use the channels that were set aside by the law to carry the materials it preferred.41 But, as Hurley pointed out, cable operators have a monopoly; the justification supporting the law in Turner Broadcasting was the survival of broadcast stations that might be threatened when a monopolist excludes them.42 This was the interest that made the law valid, and this interest is absent in the electronic-conference context. The interest served by restrictions on conference editing--the interest in "requir[ing] speakers [here, conference operators] to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own"--is, according to Hurley, "exactly what the general rule of speaker's autonomy forbids."43 
       
  
               
        Of course, speakers would prefer to have access to an existing conference, with its established pool of listeners, even when setting up new conferences isn't hard. But, as in Hurley, though "the size and success of [an existing conference] makes it an enviable vehicle for the dissemination of [disparate] views, . . . that fact, without more, would fall far short of supporting a claim that [the conference] enjoy[s] an abiding monopoly of access to spectators."44 
       
  
               
    2. The right to exclude speakers.
 
       
  
               
        Some conference operators may want to limit access based on who a person is--for instance, on the person's occupation, professional standing, political opinions, religion, sex, or race--and not just on what he posts. Many traditional conferences certainly select their speakers this way. Of course, it's often hard to tell these things about a person online, so someone might lie his way into a closed group without much difficulty. But few people generally want to do this, and in any event, even online the truth might come out. 
       
  
               
        Sometimes, the person's status may be used as a proxy for his knowledge: Counsel Connect, for instance, is generally restricted to lawyers, largely because lawyers are more likely to talk and think in particular ways, ways useful to other lawyers. If a lawyer asks a question about First Amendment law, other lawyers are more likely to respond by citing cases; laypeople may instead respond with textual arguments ("Congress shall make no law") or moral arguments that lawyers may know are generally not accepted by courts.45 
       
  
               
        A person's identity can also be directly relevant to the conference operator's purposes. Some conferences are aimed at dealing with issues facing a particular group. Democrats might want to argue about what the Democratic Party platform should be. Homosexuals might want to debate what the homosexual community's stance ought to be on a particular issue. Southern Baptists might want to discuss what stance Southern Baptist churches should take on homosexuality. Blacks might want to argue how they as blacks should react to Louis Farrakhan; whites might want to debate how whites should deal with problems of police racism; men or women might want to share thoughts on why their own sex is superior. In each situation, people might specifically want to hear the voices of their fellow group members (whatever they have to say) and not of others (no matter how sympathetic to the group they might be). We see these sorts of group-limited symposia often in the offline world, where they are sometimes praised and sometimes condemned. 
       
  
               
        Finally, a person's identity might more subtly influence the conference operator's actions. An operator might be more willing to bend the rules for, say, academics or women or whites or agnostics than he would be for others. An operator might more quickly kick off a misbehaving person with a male-sounding name than with a female-sounding name, or vice versa. And regardless of the operator's actual reasons, a person who's denied access to a conference--or who's kicked off after having had access--might believe that his group membership was the reason. 
       
  
               
        Can the government bar conference operators from discriminating based on, say, race, sex, religion, age, political opinion, marital status, sexual orientation, profession, or education? The law already bars various forms of discrimination in public accommodations. Private clubs,46 parades,47 and the Boy Scouts48 have all been viewed by at least some government agencies as places of public accommodation; the same logic might be applied to electronic conferences.49 And some jurisdictions prohibit much more than just discrimination based on race, sex, religion, or national origin: The District of Columbia, for instance, also bars discrimination based on "age, marital status, personal appearance, sexual orientation, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business."50 
       
  
               
        The Court has never squarely dealt with this. Hurley held only that the parade organizers had the right to exclude speech that endorsed homosexuality--it didn't decide whether parade organizers had the right to exclude homosexuals.51 The Court has several times confronted the question whether barring sex discrimination by private clubs would abridge the club members' rights to freedom of expressive association, but this too is a somewhat different matter. When a club is forced to admit unwanted members, the danger is the possibility that "admission of [the unwanted people] as voting members will change the message communicated by the group's speech."52 When a conference is forced to accept unwanted speakers, the danger is the certainty that admission of the speakers will change the message communicated within the conference. 
       
  
               
        Still, Hurley did suggest that the expressive association cases may be relevant to determining whether parades--or, presumably, conferences, whether electronic or not--can discriminate in selecting their participants.53 The rule the Court announced in those cases has two components. 
       
  
               
        First, the First Amendment is implicated only when the law will indeed "change the content or impact of the organization's speech."54 To determine whether this is so, a court can't just consider generalizations, even statistically accurate ones, about the beliefs shared by most women or most men (or, presumably, by most members of other classes defined by quasi-suspect or suspect attributes such as race).55 When a law "requires no change in the [association's] creed . . . and . . . imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members,"56 the organization must "show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share [a particular attribute]."57 
       
  
               
        Second, even if the First Amendment is implicated, the regulation may still be upheld if it's narrowly tailored to a compelling state interest which is unrelated to the suppression of ideas.58 The prevention of sex discrimination, even in organizations which do not actually engage in commerce but only provide leadership skills and business contacts, is such a compelling interest.59 Presumably the same would be true of the prevention of race and national origin discrimination.60 And a prohibition on discrimination in membership is by definition narrowly tailored to the interest. 
       
  
               
        Justice O'Connor, recently joined by Justice Kennedy, has taken a different view. Under her approach, the only inquiry must be whether the organization is primarily commercial, which is true "when, and only when, the association's activities are not predominantly of the type protected by the First Amendment"--are not predominantly expressive.61 If the organization's activities are primarily commercial, then it has only minimal expressive association rights,62 and government interference with its membership criteria would be permissible.63 If the organization's activities are primarily expressive, then "both the content of its message and the choice of its members" are protected.64 
       
  
               
       Thus, if Justice O'Connor's approach is transplanted from the expressive association context to electronic conferences, most conference operators--all those whose conferences are devoted to something other than commercial transactions--would have the unlimited right to discriminate in membership. 
       
  
               
        If the majority view is applied, however, the result is less clear. To begin with, the conference operator will have to show that "the content or impact of the [conference's] speech"65 will be changed if the participant restrictions are lifted. Under one definition of "content" this shouldn't be hard; certainly the content of a conference will be changed whenever new speakers are allowed. On the other hand, if courts insist that the change not just be to the exact words the conference contains, but to some substantive aspects of the discussion, the operator will have to show that, say, nonlawyers or women or blacks as a group will probably have different views on various topics than lawyers or men or whites as a group. And when the group is defined by a suspect or quasi-suspect attribute, such as race or sex, the operator will have to show this using more than just statistical generalizations (even empirically valid ones).66 
       
  
               
        Next, the court would ask whether the government has a compelling interest in barring the particular form of discrimination. Such a compelling interest quite likely exists for race, national origin, sex, and probably religion. For other attributes, it's less clear. State courts are, for instance, split on whether preventing discrimination based on marital status, sexual orientation, and age are compelling interests,67 and I know of no decisions dealing with whether there's a compelling interest in barring private discrimination based on, say, political affiliation. 
       
  
               
        In my view, Justice O'Connor's framework is the better one, especially when one is dealing with choice of speakers and not just with choice of members in an organization.68 An all-lawyer, all-Republican, all-female, allwhite, or all-Catholic electronic conference presents a unique speech mix for its participants. We might not be entirely happy that some people prefer to talk only to members of their own group, but--especially where no salary or other tangible economic benefits are directly involved69--people's choice of correspondents seems as much a part of the freedom of speech as their choice of what to say or listen to. 
       
  
               
        Nor is it proper to allow only those exclusions that are in some way germane to the conference topic--to say that, for instance, women might be excluded from an electronic conference for discussion of men's issues, but not from an electronic conference on, say, bankruptcy law. It shouldn't be the government's job to determine what's germane to an expressive association's purposes and what's not. Excluding women (or men) from a bankruptcy law discussion will definitely change the discussion content; we might not think it will change the content in any remotely interesting way, but presumably the discussion organizers disagree. Hurley tells us it's up to the parade organizer, not the government, to decide whether including a certain message would unacceptably change the parade's message. If Justice O'Connor is right to equate an expressive association's interest in "the content of its message" and "the choice of its members," then the decisions about membership in an expressive association--or an electronic conference--should likewise be in the organizer's hands. 
       
  
               
        In at least one area, in fact, antidiscrimination law has been appropriately trumped by the First Amendment; despite Title VII, churches continue to have the right to discriminate based on race and sex in their choice of clergy. "The right to choose ministers without government restriction underlies the well-being of religious community, for perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large."70 Though the interest in stopping race and sex discrimination is normally compelling, in the context of clergy selection it must yield to the church's rights under the Free Exercise Clause.71 Conference participants are to a conference what clergy are to a church: The perpetuation of a conference's distinctive content depends on those whom the operator selects to contribute to it. 
       
  
               
    3. Possibly permissible requirements.
 
       
  
               
        All the above has turned on the conference operator's right to create a coherent speech product. Regulations that don't jeopardize this right are a different story. For instance, a law that required online service providers to offer person-to-person e-mail services to everyone and barred providers from restricting the content of such message would probably be constitutional. 
       
  
               
        The same should even be true of a law that required service providers (Prodigy and the like) to give their users the ability to create new electronic conferences. Such laws wouldn't prohibit the creation of any speech products; operators could still edit their own conferences any way they please. (One could, of course, still oppose these laws on the policy grounds that the government generally shouldn't interfere with private businesses, or even argue that such laws may sometimes be takings of private property without just compensation.72) 
       
  
               
        It may also be permissible to restrict operators from changing posts (as opposed to deleting them) without the authors' permission. Changing people's posts essentially represents them as having said something they didn't say--it implies a false statement of fact, "X said Y" where in reality X said Z. This sort of knowingly false statement should be constitutionally unprotected.73  
       
  
               
        In fact, such modifications of others' posts may already be prohibited in many situations. Under the Copyright Act,74 both copying someone's work and transforming or abridging it are presumptively infringements. By posting to an electronic conference the author obviously gives the conference operator an implied license to copy the work in order to forward it to the other conference members, but he probably doesn't give an implied license to change it. Putting words into someone's (electronic) mouth may also risk a false-light invasion of privacy lawsuit, and, in a commercial context, a misattribution claim under the Lanham Act.75 If an operator wants to change a conference participant's words, the operator should get the person's agreement, either at the time of the post or beforehand (for instance, when the person signs a Terms of Service agreement that makes clear that certain words will be deleted from all posts). 
       
  
               
 C. Editing from the Listener's Perspective 
       
  
               
        The Value of Editing: I've focused on the interests of the conference editor as speaker, largely because this is what the doctrine has generally done. But, as I mentioned earlier, editing is also critical to the interests of listeners. 
       
  
               
        As the Court has recognized, listeners have substantial claims to autonomy in their selection of the speech they hear: "no-one has a right to press even `good' ideas on an unwilling recipient."76 In many contexts, this autonomy can't justify silencing a speaker, because other, willing listeners might be present. But listener choice remains an important value; practically, if a medium can't give listeners what they want, listeners aren't likely to use it. 
       
  
               
        Private intermediaries are a vital tool for listener choice. Listeners who want more options are generally better served not by a media outlet which carries everything submitted to it, or even by many such outlets, but by many edited media outlets, each with its own editorial judgment. I'd rather have access to twenty radio stations, each with its own playlist, than to twenty (or even fifty) stations that are all open to all comers. And just as speakers' rights to speak can often be fully realized only by their right to associate to form a more powerful speaker (albeit one that might not always perfectly track the ideas of each of its individual members),77 so listeners' control over what they listen to is often made possible by the editors' right to edit (even though the result might not perfectly track the interests of each of the editor's customers). 
       
  
               
        Nor would it be wise to prohibit viewpoint-based editing, while allowing editing based on subject matter. Some of the most useful forms of editing are at least partly based on viewpoint. This is common in the print world: The New Republic and The National Review, for instance, are useful to their readers precisely because they have particular outlooks on the world. Likewise, conventional conferences often invite speakers precisely because of the viewpoints they express. 
       
  
               
        The same goes for electronic conferences. A biology discussion group might, for instance, reject messages that take a creationist perspective. A gay-rights discussion group might reject messages that argue that gay rights are a bad idea because homosexuality is evil. A Christian theology discussion group might reject messages that try to prove there is no God. Even the most open-minded of us can't devote our time to debating everything. Once we're confident enough about a certain proposition--that evolution is correct, that homosexuality isn't immoral, that God exists--we may want to spend time discussing its implications rather than rehashing the arguments about whether it's correct. Messages that express contrary viewpoints, messages that respond to them, further responses to the responses, and so on, will be useless to us, and by decreasing the signal-to-noise ratio will make the whole conference less useful. 
       
  
               
        Of course, this doesn't mean that most electronic conferences will be completely doctrinaire. Debate is the lifeblood of electronic conferences; few conferences of which I know have much of an ideological litmus test. But while the typical conference may tolerate a wide range of opinions, the editor may decide that certain perspectives are beyond the pale. He may do participants a service--making the conference more valuable to them--by excluding those perspectives. 
       
  
               
        The Drawbacks of Editing: Of course, editorial judgment itself limits listener choice, by depriving listeners of access to voices which they might like. Perhaps I might be disappointed by the law professor-only conference, and wish that my friend the layman could participate. Perhaps a biologist might think his colleagues could profit from learning more about the creation scientists' arguments, even if many of his colleagues might think they've heard enough of them. 
       
  
               
        But because these limitations are a matter of private decision, not of government rule, they are generally easier to avoid. If enough listeners want to hear a particular view and one conference doesn't carry it, others probably will. And if no conference is interested in carrying the view, then chances are that this is because too few listeners want to hear it. In that case, the only way that those who are interested can be satisfied is by imposing on the greater number who aren't interested. 
       
  
               
        We see this happening already. Among the big services, Prodigy advertises its editing, while CompuServe generally imposes no content controls. Counsel Connect provides lawyer-only discussions, while many conferences on the big services and on the Internet are open to everyone. There's an AMEND1-L Internet free speech discussion list78 that's open to all and a CLSPEECH list79 just for law professors. New Internet discussion lists are cheap to start; people who already have accounts with certain Internet providers such as Netcom--accounts that cost about $10 per month--can set up such lists for free. And these discussion lists will be open to all Prodigy, America Online, and CompuServe users, as well as those who have direct Internet access. 
       
  
               
        Of course, editing won't always be beneficial to listeners. To take one example, Prodigy's notorious removal of messages critical of Prodigy's pricing policies was in no one's interests but Prodigy's own.80 One could defend this on Miami Herald grounds as part of Prodigy's editorial control rights, but it's hard to justify it on listener autonomy grounds. This, though, was an unusual incident, and one that had little overall negative impact on speakers or listeners. Banning this sort of conduct might not hurt listeners, but it wouldn't have helped them much, either. 
       
  
               
        On the other hand, Prodigy's removal of anti-Semitic messages from some bulletin boards and its automatic editing of offensive words may be of significant value to many listeners. Just as I'm entitled to avoid magazines that print anti-Semitic propaganda, I have a legitimate interest in having magazine editors, acting as my agents, exclude the anti-Semitic material for me. Having Prodigy impose this editing policy gives me as listener a choice: be exposed to a restricted set of views on Prodigy, or to an unedited set on CompuServe or on the Internet. Barring Prodigy from editing would deprive me of that choice.81 On government property, we may have no choice but to suffer offensive speech, but there's no reason this has to apply to privately owned fora. 
       
  
               
        Naturally, by increasing listener choice, editing also increases listeners' ability to choose unwisely. Listeners who choose conferences that tolerate only their own viewpoint, or those that shut down passionate debate, or even those that exclude racist speech, might be sealing themselves off from important arguments, arguments they might find persuasive (or at least worth knowing) if they saw them. Some might see this danger as a justification for laws that would open up the conferences and make sure that listeners don't shut themselves off from balanced debate. 
       
  
               
        But though listeners may make the wrong decision, I believe it's better to leave these decisions to the listeners rather than to the government. It seems morally troubling for the government to force unwanted speech onto listeners; and I'm skeptical that even a well-motivated government can be good at determining what listeners really ought to hear and what they can legitimately seek to avoid. 
       
  
               
        Equally importantly, I doubt that any attempts to save listeners from their narrow-mindedness will really work. If listeners want to cocoon themselves from opposing ideas, it's hard to see what can be done about that. Maybe compelled access will give some listeners some information for which they'll ultimately be grateful, even though they didn't at first want it. But I doubt this will often happen; you can make people receive messages, but you can't make them read them. And in some situations, for instance, if the government bars editors from screening out insults or racial attacks or even ignoramuses, many listeners may just stop reading the conference altogether. In trying to make people more informed, the government might cause them to become less informed. 
       
  
               
 D. Defamation Liability 
       
  
               
        There have so far been no direct legal threats to conference operators' right to edit. There has been, however, one recent indirect threat: the assertion by one court--and some commentators--that editing should increase the conference operator's exposure to defamation liability.82 
       
  
               
        People who run electronic conferences, edited or not, may be liable for defamatory statements posted on those conferences. As a general rule, those who participate in distributing a libel are liable together with the original author; the same may apply to the conference operator. 
       
  
               
        A republisher of a libel--for instance, a newspaper printing an op-ed or even a letter to the editor--is liable under the familiar constitutional framework: 
       
  
               
        Public Figure/Public Concern: If the false statement is about a public figure and is on a matter of public concern, the republisher is liable if he knows the statement is false or recklessly disregards the possibility that it's false.83 
       
  
               
        Private Figure/Public Concern: If the false statement is about a private figure and is on a matter of public concern, the republisher is liable if he acts negligently in publishing the statement (for instance, doesn't do the factual investigation that a reasonable person would have done).84 
       
  
               
        Private Concern: If the false statement is on a matter of private concern, the republisher might theoretically be strictly liable.85 In practice, though, few states impose strict liability even on the person who originally makes the statement,86 and I've seen no recent case that imposed strict liability on the republisher. Whether such strict liability would be constitutionally permissible is an open question.87 
       
  
               
        A distributor who isn't a republisher--for instance, a bookstore or a newsstand--can be held liable, too, but such a distributor is given an extra immunity: It isn't liable if it "neither knows nor has reason to know of the defamatory article," and it is generally "under no duty to examine the various publications that [it] offers . . . to ascertain whether they contain any defamatory items," unless a particular publication "notoriously persists in printing scandalous items."88 
       
  
               
        Much of the recent controversy about online libel turns on whether conference operators should be seen as republishers or distributors; but in practice this distinction isn't that important here. Whether he's a republisher or a distributor, a conference operator will be liable for public figure/public concern statements only if he's acting with actual malice. And regardless of whether he's a republisher or a distributor, an operator will be liable for private figure/public concern statements under some sort of negligence standard--if an operator "has reason to know" that a post is defamatory, he is vulnerable to a lawsuit even if he is seen only as a distributor. The one area of possible difference would be statements on matters of private concern, but even there it seems unlikely that a conference operator would be held strictly liable even as a republisher.89 
       
  
               
        The conference operator's main worry, then, has to be about what the negligence standard--the lowest standard with which he'll have to deal--means in practice. Is it reasonable to let all posts through, or does the duty of care include a duty to prescreen? If the operator does have a chance to screen the messages, must he read them carefully, or is it reasonable to adopt a "let-it-through-unless-it's-clearly-off-topic" policy? 
       
  
               
        It's here that a court's attitude towards editing becomes important, because the choice of a duty of care is in large part a policy decision for the court to make. What level of expense and effort is "reasonable" to expect can turn, rightly or wrongly, on the court's view of the social utility of the underlying conduct. If a court believes that editing is a bad thing, it might impose more liability on conference operators who edit than it would on those who don't edit. 
       
  
               
        Stratton Oakmont, Inc. v Prodigy Services Co.,90 a libel case which held Prodigy to a higher standard than CompuServe because Prodigy edited and CompuServe didn't, is a case in point. Formally, the court claimed it was simply determining whether the better analogy for Prodigy was the bookstore (a distributor) or the newspaper (a publisher). "Prodigy's conscious choice, to gain the benefits of editorial control," the court concluded, "has opened it up to a greater liability than . . . other computer networks that make no such choice," and than "bookstores, libraries, and network affiliates."91 The "decision to regulate the content of its bulletin boards . . . simply require[s] that . . . [Prodigy] also accept the concomitant legal consequences"92,--with editorial control comes increased liability. Prodigy was more like a publisher than a distributor because it "[had] uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards."93 
       
  
               
        Now it's true that, under conventional negligence principles, one's ability to avoid harmful conduct (here, defamation) is relevant to whether one has a duty to try to avoid it, so situations in which the operators have the opportunity to exercise editorial control may indeed properly lead to greater liability. If operators actually read all incoming messages before distributing them to the conference, then it becomes more likely that they'll know about the defamatory statement; in that case, the operator may be liable regardless of whether it's viewed as a distributor. And even if the operator doesn't read the messages, the fact that it has an "editorial staff . . . who have the ability to continually monitor incoming transmissions"94 might make it fair to impose on it the duty to read the messages. 
       
  
               
        But the Stratton Oakmont court didn't limit its discussion of Prodigy's editing to manual editing: It also referred to the automatic software screening program and to Prodigy's practice of deleting some messages after they've been posted, presumably once they have triggered subscriber complaints.95 These practices don't change the cost to the operator (and, indirectly, to its customers) of greater monitoring for libel; they don't change the benefits to defamation victims that such greater monitoring would bring. There's no inherent reason that these sorts of editing decisions should affect the negligence calculus. 
       
  
               
        Thus, the court's decision wasn't an application of settled negligence principles. But neither was it an application of a settled libel law distinction between publishers and distributors. The court's models of distributors--bookstores and network affiliates--do exercise editorial control; they, no less than Prodigy, determine what their customers and viewers will see. They select which books they'll carry or which shows they'll broadcast. Sometimes they refuse to carry an item if it seems to them to contain offensive, ideologically unpalatable, or just unpopular material. They may lack the ability to edit books or TV shows line-by-line, but for practical purposes Prodigy lacks this ability, too. Actually, Prodigy is much less selective about its posts than a bookstore is about the books it carries: Bookstores choose to stock only a fraction of all the books that are available to them, while Prodigy lets through virtually all the posts submitted to it. 
       
  
               
        It therefore seems to me that the court's decision reflects not the commands of established libel or negligence principles, but rather a policy judgment about the propriety of editing. Consider the court's assertion that Prodigy "has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards";96 its stress that editing "may have a chilling effect on freedom of communication in Cyberspace, . . . [a] chilling effect [which appears to be] exactly what PRODIGY wants";97 and its two references to Prodigy's conduct as "censorship."98 The court seemed to be exacting greater liability as the price for bad, or at least suspect, behavior. 
       
  
               
        For the reasons I mentioned above, this is the wrong policy choice to make. Editing is a valuable service, and conference operators shouldn't be discouraged from performing it. Depending on how you weigh the interests in private reputation and in uninhibited speech, some sort of operator liability may be appropriate.99 The economic feasibility of editing might play a role in the balance, just as the economic feasibility of preventive measures is generally relevant in negligence analyses. But whether the operator actually edits shouldn't affect the place the line is ultimately drawn.100 
       
  
               
        The Communications Act of 1996101 can be read as prohibiting courts from penalizing conference operators for editing. The Act says: 
       
  
               
       No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. . . . 
       No provider or user shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable . . . . 
       The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation of development of information provided through the Internet or any other interactive computer service.102 
 
       
  
               
 I think that the best reading of the statute is that no conference operator shall be held liable as a publisher or republisher for defamatory speech by conference participants; that the operator's editing can't be considered in determining whether he should be exposed to defamation liability; and that the "or otherwise objectionable" clause gives protection to any of the operator's editing choices. 
       
  
               
        On the other hand, one can at least argue that: (1) a conference operator can be held liable as transmitter of a defamatory statement on the same terms as the original speaker, so long as state law does not label him a "publisher" or a "speaker"; (2) considering an operator's editing decisions as a factor in determining the operator's standard of care does not constitute imposing liability "on account of" his editing; (3) the "or otherwise objectionable" proviso only protects editing choices that turn on the offensive form of speech and not, say, on viewpoint-based or subject matter-based editing choices; or (4) "information content provider," despite its breadth, doesn't include individual contributors to a conference. 
       
  
               
        These latter arguments, I believe, are something of a stretch, which is why I think the Communications Act does bar Stratton Oakmont-type reasoning. But there's enough ambiguity in the statute that the matter is not free from doubt. 
       
  
               
 E. Edited Conference Groups on Public Computers or Run by Public Employees  
       
  
               
        Many of the computers that make up the Internet are run by public institutions, generally public universities. Many Internet electronic conferences are operated from those computers, and many are operated by public employees, especially academics. 
       
  
               
        Does the editing of such conferences stand on a different footing from the editing of private conferences? Does the public-forum doctrine, for instance, make certain forms of editing unconstitutional? Conversely, does the government's ownership of the computers or control over its employees give it the power--even if not the duty--to restrict their editing activities? 
 
    1. No constitutional barriers to editing.
 
       
  
               
        A private person operating an electronic conference on a public computer is not bound by the requirements of the Free Speech Clause; he may restrict speech even based on its viewpoint. Private speakers don't become state actors just because they're speaking on or using public property. 
       
  
               
        This is most obvious with regard to the traditional public forum--the organizers of a rally or a parade may control the speech that goes on there, even though they're using public property for this speech103--but it should be equally true for other public property. A student group meeting in a public school, for instance, should still be able to control its own speaker selection. Use of a public classroom, or of time and space on a public computer, is a valuable government subsidy, but taking subsidies (even large ones) doesn't turn a private organization into a state actor for Free Speech Clause purposes.104 So long as the group's speech-based decisions aren't dictated by the government, there's no state action. 
       
  
               
        The same should be true when the subsidy comes in the form of the government letting an employee edit a conference on government time. Books or journals edited by public university professors, for instance, have never been thought of as involving state action. Certainly the editors routinely make viewpoint-based decisions about what gets published and what doesn't, something state actors generally can't do even in a nonpublic forum.105 
       
  
               
        A government employee isn't always a state actor, even when he's acting on government time. So long as he isn't "exercising power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,'"106 he's acting as a private person. Like a public defender, a professor editing an electronic conference is engaging in "essentially a private function, traditionally filled by [private persons], for which state office and authority are not needed," though in this case state dollars are paying his salary.107 
       
  
               
    2. No constitutional right to edit.
 
       
  
               
        On the other hand, the government may let someone set up an electronic conference on its computers, or allow him to operate it on government time, only on condition that he not edit, or that he edit only in certain ways. This is akin to the government's power to create a designated public forum limited to the discussion of particular subjects. The government may conclude that, if it's going to let public property be used, it should be used only in the way that best serves the public--for instance, for a conference that's open to everyone, or a conference that, even if edited, is edited only in viewpoint-neutral ways. 
       
  
               
        Nonetheless, I'd recommend that the government be hesitant to restrict editors' power. As I mentioned above, even viewpoint-based editing may often create a more valuable speech product. For instance, a scholarly biology list that accepts messages based on evolutionary premises but refuses to accept messages based on creation science premises would probably be discriminating based on viewpoint: The theory that man was created directly by God is certainly an alternate viewpoint to the theory that man naturally evolved from other animals.108 But such a restriction may well be quite appropriate. Even an open-minded group of scientists may reasonably conclude that they'll use one theory as their operating assumption. At that point, further arguments based on other theories may just become distractions from the business at hand. The scientific community, it seems to me, is better served by one conference devoted to discussion of biological problems from an evolutionary perspective, another from a creation science perspective, and a third for arguing about which is the better perspective, than by three conferences on which creationists and evolutionists fight it out. 
       
  
               
        If the concerns about limited access can be allayed not by restraining the editors but by providing more discussion lists on the same topic (but edited in different ways), then providing more lists should be the preferred alternative. Providing the extra list doesn't cost anything by itself; the list is just another entry in the computer's tables. Sometimes adding the new edited list may lead to more messages coming through the computer, but often it won't: The separate edited lists may end up having fewer bandwidth-consuming flame wars and fewer digressions. Editing is a good thing; as a general rule, government computer owners (and especially academic institutions) should encourage it, not discourage it. 
 		 
       
II. GOVERNMENT PROTECTION OF LISTENERS AGAINST OFFENSIVE MESSAGES
 
               
        Another desire of listeners is a pleasant, polite speech environment, both one in which they aren't personally insulted, and one in which they don't have to hear more general statements that they might find offensive (for instance, because the statements are profane, racist, or sexually explicit). As I argued above, editing decisions by conference owners can be valuable to listeners for precisely this reason. Just as many people prefer a "family newspaper," or a newspaper run by polite editors rather than by bigots or fanatics, so many people would prefer a list where flame wars and other forms of abuse are screened out, or at least quickly suppressed. But what if the conference operators choose not to intervene, if they decide not to edit generally, or if they agree with the abusive messages or at least find them valuable enough not to edit out? 
       
  
               
 A. Protecting Some Listeners Without Burdening Other Listeners 
       
  
               
        In my view, the government may generally restrict speech to protect unwilling listeners only if the restriction doesn't interfere with the flow of speech to willing listeners. Thus, speech on electronic conferences should be protected even if it's offensive, insulting, profane, or bigoted,109 because restricting such speech would "permit[] majoritarian tastes . . . to preclude a protected message from [reaching] a receptive, unoffended minority."110 In this, electronic conferences are like billboards, demonstrations, and newspapers. The Court has made clear that restricting offensive speech in these media would impermissibly impoverish public discourse,111 and there's no reason the rule should be different online. The interests of the speaker and of the willing listeners must, I believe, prevail over those of the offended listener. 
       
  
               
        On the other hand, some restrictions on unwanted one-to-one communications, such as physical mail, phone calls, and e-mail, should be constitutionally sound. For one-to-one communications, it's possible to create laws that are "narrowly tailored to protect only unwilling recipients of the communications."112 A law that, for instance, stops mailers from sending material to people who've already expressed a desire not to get it is constitutional;113 the same should be true for e-mail. 
       
  
               
        Of course, speakers might still want to communicate even to unwilling listeners, and imposition on a speaker's self-expression ought not be taken lightly.114 Nonetheless, especially when a listener has already told the speaker that he's not interested in hearing more, I don't believe the speaker's desire to keep talking should be treated with much solicitude. In such a context, the speech is likely only to annoy or offend, and not enlighten or persuade anyone.115 I agree with the Court that "no one has a right to press even `good' ideas on an unwilling recipient,"116 so long as the unwilling recipient is the only listener involved. 
       
  
               
        Space constraints keep me from defending this theoretical position in detail here, though I've talked about it at some length elsewhere.117 Moreover, a broad theoretical defense is probably premature, since there've been few explicit proposals for regulating offensive online speech (other than sexually-themed speech, which I discuss in Part III). Instead, I'll focus more specifically on the two sorts of fairly broad restrictions on online speech that may already exist, though they generally aren't enforced this way today: telephone harassment statutes and hostile-environment harassment law. 
       
  
               
 B. Telephone Harassment Laws 
       
  
               
        In recent years, some telephone harassment statutes, which are today generally used to stop indecent, threatening, and otherwise annoying phone calls--have been specifically extended to online communications. Others had always been broad enough to include online messages. These statutes vary by jurisdiction, but they tend to prohibit some mix of the following: 
       - Threats, a prohibition that generally raises no First Amendment problems.118 
       - "[R]epeated telephone calls with intent to annoy another person," sometimes limited 
          to phone calls directed to the other person's home or work.119 
       - Use of "indecent or obscene language,"120 some times with "intent to annoy, abuse, 
          or harass."121 
       - Any communication made "with intent to harass, annoy or alarm another person,"122 
          sometimes limited to those made "in a manner likely to cause annoyance or 
          alarm."123 
       - Anonymous communications made "with intent to annoy, abuse, . . . or harass."124 
 		 
       
  
               
        These statutes have generally been upheld against First Amendment challenges, a result which is defensible (though, as I discuss below in Part II.E., still problematic).125 But extending them literally to online communications causes significant problems. 
       
  
               
 C. "Electronic Harassment" in Electronic Conferences 
       
  
               
        Consider, for instance, the Connecticut telephone harassment statute, which has recently been amended to say: 
       
  
               
    (a) A person is guilty of harassment in the second degree when: . . . 
    (2) with intent to harass, annoy or alarm another per son, he communicates with a person by telegraph or mail, . . . by computer network . . . or by any other form of written communication, in a manner likely to cause annoyance or alarm . . . .126 
 
       
  
               
 Read literally, the statute would prohibit me from posting any message to an electronic conference "with intent to . . . annoy" one of the participants (say, someone with whom I'm arguing). After all, by posting a message to a conference, I'm communicating with each of the conference participants; for instance, if the conference is a distribution list, I'm causing a message to be e-mailed to everyone on the list--"communicat[ing] with" each of them "by computer network." This includes the person I'm trying to annoy. 
       
  
               
        How broadly "annoy" would be read is anybody's guess, but a lot of things said in online conversation are intended at least in part (and sometimes entirely) to annoy one's opponents. Perhaps electronic conferences would be better if everyone intended only to enlighten, and never to annoy, but annoying and offensive speech is nonetheless constitutionally protected. Leaflets, newspaper articles, books, and movies can all be annoying (sometimes intentionally) to parts of their audiences; despite this, it seems clear that a ban on "harassing, annoying, or alarming" speech in them would be unconstitutional.127 I see no reason why electronic messages should be less protected. 
       
  
               
        The problem is that a statute which originally applied to one-to-one communications is being applied to one-to-many communications. Keeping me from sending annoying messages to one particular person doesn't severly restrain public discourse; if the message is meant to irritate the recipient, it's unlikely to persuade or enlighten him. Its only likely consequence is annoyance. But in a one-to-many context, a message that's annoying, even intentionally so, to one person may indeed be valuable to others. 
       
  
               
        I'm not sure that the extension of telephone harassment laws to online communications was meant to cover electronic conferences. Quite possibly the drafters of the laws were only contemplating direct e-mail, a one-to-one medium not much different from conventional phone calls. In this context, as I mention below, restrictions similar to those imposed on telephone harassment might indeed be permissible. But whether intentionally or not, some of the laws on their face sweep considerably further than they should. 
       
  
               
 D. Hostile-Environment Harassment 
       
  
               
        Hostile-environment harassment law is a very different creature from telephone harassment law, but it too might have unexpected consequences in cyberspace. 
       
  
               
        The most familiar form of hostile environment harassment is workplace harassment: speech or conduct that is 
       
  
               
    - "severe or pervasive" enough to 
    - create a "hostile or abusive work environment" 
    - based on race, sex, religion, national origin, age, disability, veteran status, or, in 
       some jurisdictions, sexual orientation, citizen/alien status, political affiliation, 
       marital status, or personal appearance 
    - for the plaintiff and for a reasonable person.128 
 
       
  
               
        An employer is liable for hostile environment harassment perpetrated by its employees--and even its customers129--so long as it knows or has reason to know about the conduct. 
       
  
               
        This is a broad definition, and it has in fact been applied to a broad range of speech. A state court, for instance, has held that it was religious harassment for an employer to put religious articles in its employee newsletter and Christian-themed verses on its paychecks.130 The EEOC has likewise concluded that a claim that an employer permitted the daily broadcast of prayers over the public address system was "sufficient to allege the existence of a hostile working environment predicated on religious discrimination."131 
       
  
               
        Similarly, a court has characterized an employee's hanging "pictures of the Ayatollah Khome[i]ni and a burning American flag in Iran in her own cubicle" as "national-origin harassment" of an Iranian employee who saw the pictures.132 Courts have used harassment law to enjoin people from making "remarks or slurs contrary to their fellow employees' religious beliefs,"133 displaying materials that are "sexually suggestive [or] sexually demeaning,"134 or uttering "any racial, ethnic, or religious slurs whether in the form of `jokes,' `jests,' or otherwise."135 A federal agency has likewise characterized anti-veteran postings at Ohio State University as harassment based on Vietnam Era veteran status.136 
       
  
               
        Hostile-environment law may even cover coworkers' use of job titles such as "foreman" and "draftsman,"137 sexually themed (but not misogynistic) jokes,138 and "legitimate" art.139 The constitutionality of workplace harassment law is being hotly debated,140 but as of this writing the risk of harassment liability is certainly a fact of life. 
       
  
               
        What does this have to do with the Internet? Well, the foundation of workplace harassment law is the theory that harassment is itself discrimination: the denial to certain people of a particular kind of employment benefit--a tolerable work environment--based on their race, sex, and so on.141 
       
  
               
        This theory is equally applicable to other discrimination statutes, including statutes that bar discrimination in places of public accommodation. Some statutes make this explicit, prohibiting, for instance, "communication of a sexual nature" that creates "an intimidating, hostile, or offensive . . . public accommodations . . . environment."142 Other statutes that speak only of discrimination have also been interpreted as barring harassment: For instance, a recent Wisconsin administrative agency decision has concluded that an overheard (but loud) discussion that used the word "nigger" created an illegal hostile public accommodations environment for black patrons, even though the statements weren't said to or about the patrons.143 Likewise, the Minnesota Supreme Court has held a health club liable for creating a hostile public accommodations environment, based on the club's owners "belittl[ing]" a patron's religious views (expressed in a book the patron had written) and "lectur[ing] her on fundamentalist Christian doctrine."144 And it's fairly well-established that other antidiscrimination statutes, which ban discrimination in education and housing, also apply to hostile environment harassment;145 it stands to reason that the same would be true for public accommodations statutes. 
       
  
               
        As Part I.B.2 discusses, it's eminently plausible that commercial online services would be considered places of public accommodation. Given that some judges have seen even noncommercial establishments--such as parades, the Boy Scouts, and private clubs--as places of public accommodation, Prodigy, Counsel Connect, and others would quite likely qualify.146 At least one commentator has in fact suggested this very point.147 Say, then, that someone frequently posts slurs or sexual jokes or sexually explicit messages or sexist or racist or anti-veteran or religiously bigoted statements or even religious proselytizing to an electronic conference. In the eyes of some factfinders, such messages may well create a "hostile or abusive" environment for some of the conference participants. If the conference operator has the power to do something about this--for instance, if the conference is moderated but the moderator lets these messages through, or if the operator can kick off the offender but refuses to do so--the speech could give rise to liability. 
       
  
               
        The best real-life online example of this came in the context of hostile educational environment law. In late 1994, in the wake of a controversy about an allegedly sexist ad in the Santa Rosa Junior College newspaper, some students posted sexist remarks about two female student newspaper staffers on a college-run electronic conference.148 Though the female students didn't see the message, they eventually learned about it, and when they did, they filed a complaint with the U.S. Department of Education's Office for Civil Rights. 
       
  
               
        The Office concluded that the messages were probably "so severe and pervasive as to create a hostile [educational] environment on the basis of sex" for one of the students.149 A college tolerating speech that creates a sexually hostile educational environment would, in the Office's view, violate Title IX of the Civil Rights Act.150 If this is so, then a service provider tolerating similar speech on its computers would probably be violating public accommodations statutes. 
       
  
               
        I believe these sorts of speech restrictions are generally unconstitutional, entirely so in the educational and public accommodations contexts, and partly so in the workplace context. I don't want to go into the details of this here; the arguments have been amply discussed elsewhere.151 Put briefly, I can't deny that "hostile or abusive" speech can greatly diminish the value of an online conference--public or university--for those who are offended; but such speech, even racially, religiously, or sexually bigoted speech, is protected by the Free Speech Clause from government abridgment.152 It's protected on sidewalks, in private homes, in the pages of newspapers. Despite the recent spate of campus speech codes, courts have held that it's protected in universities.153 There's no reason it shouldn't be equally protected in Prodigy, Counsel Connect, and the like. 
       
  
               
        Some courts have been willing to uphold hostile-environment harassment law in the workplace, though it bears emphasizing that others have suggested that even there it may face substantial constitutional problems.154 But this has been in large part because of their view that "the workplace is for working," not for debate.155 Electronic conferences are created precisely for debate. Whatever the constitutional status of workplace harassment law, such speech restrictions in places devoted to communication can't be valid. 
       
  
               
        But though I'm confident that most restrictions on harassing speech will ultimately be struck down, the fact remains that they are something of a growth field in free speech law today, and that they enjoy a good deal of support. Hostile environment-based restrictions on online speech are likely to arise with some frequency in coming years. 
       
  
               
 E. One-to-One Online Harassment 
       
  
               
        Restrictions on some one-to-one messages--such as personal email--are at least theoretically more defensible because they help insulate unwilling listeners while still protecting the right to communicate to willing ones. Some telephone harassment laws have been upheld precisely on these grounds. 
       
  
               
        Still, even in the one-to-one context, these laws pose significant problems. "Annoying," "harassing," and "indecent"--words the laws use to define the speech they bar--are vague terms, and fairly read, the laws can sweep quite broadly. If an acquaintance of mine has botched a task I asked him to do, and I phone him or e-mail him and say, "You idiot, you really fucked this up," I may well have committed harassment; I've said something that's arguably both "annoying" and "indecent,"156 I've said it with the intent to annoy (and perhaps "harass," whatever that means), and my statement is in fact likely to annoy. Under many telephone harassment statutes, I've committed a crime. 
       
  
               
        Likewise, I edit an electronic poetry journal,157 and our subscribers sometimes send us messages about our poems. One such message said nothing more than "Your poems suck!"158 Under the Connecticut law, sending that message may well have been a misdemeanor; the message was likely to annoy me and could have been intended to do so (as well as to communicate the sender's views). I can't claim that the messages in these examples are of remarkably great First Amendment value, but it isn't clear that this sort of speech should be criminal. 
       
  
               
        Some of the broader telephone harassment statutes have been held unconstitutional for this very reason.159 Other statutes have been upheld, especially if they've required that the speech be intended to annoy (which not all statutes do);160 and some commentators argue that this intent requirement should help save the law from invalidity.161 But I'm not sure that even those statements made with the intent to annoy should be considered criminal--as my example above shows, many of us might say such things in an exasperated moment, with little likely harm to anyone. 
       
  
               
        In practice, of course, telephone harassment laws are considerably less menacing than their language suggests. It takes conscious effort to make an annoying call to a stranger; few people complain to the police about the occasional annoying call from an acquaintance; in many such situations, prosecutors may decide not to prosecute; and it's often hard to prove what the caller actually said. In some respects, these checks might limit the law's reach to only the most serious situations. 
       
  
               
        But the e-mail environment changes some of these conditions. While annoying phone calls are usually deliberate pranks, thought-through insults, or conscious attempts to menace, annoying e-mail can easily happen on the spur of the moment. A person sees a message he dislikes on an electronic conference, and in a few seconds he can send an angry retort--one intended to and likely to annoy--directly to the author's mailbox. And because e-mail, unlike phone calls, leaves a written record, its content is easy to prove. 
       
  
               
        The person who sent me the "Your poems suck!" e-mail probably wouldn't have called the publisher of a print magazine to say the same thing. The ease with which one can reply to an e-mail makes such replies spontaneous and sometimes rude. This sort of conduct seems less like a deliberately harassing phone call, and more like the annoying words said in public--one can imagine someone saying the same thing at a poetry reading in a coffee-house--which are generally not punishable unless they're likely to cause a fight. In the great majority of cases, recipients will still not complain and prosecutors won't prosecute, but in my view these shouldn't be the only barriers between a basically decent computer user and a misdemeanor conviction. 
       
  
               
 F. The Continued Unwanted Cont