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Home > Journals > Michigan Law Review > MLR > Volume 98 > Issue 2 (1999)

 

Abstract

Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech and regulation within a single jurisdiction, but it makes less sense across jurisdictions. For when viewed across jurisdictions, most controversial speech falls into category (3) - speech that is permitted to some in some places, but not to others in other places. What constitutes "political speech" in the United States (Nazi speech) is banned in Germany; what constitutes "obscene" speech in Tennessee is permitted in Holland; what constitutes porn in Japan is child porn in the United States; what is "harmful to minors" in Bavaria is Disney in New York. Every jurisdiction controls access to some speech - what we call "mandatory access controls" - but what that speech is differs from jurisdiction to jurisdiction. This diversity creates a problem (for governments at least) when we consider speech within cyberspace. Within cyberspace, mandated access controls are extremely difficult. If access control requires knowing (a) the identities of the speaker and receiver, (b) the jurisdictions of the speaker and receiver, and (c) the content of the speech at issue, then as cyberspace was initially designed, none of these data are easily determined. As a result, real space laws do not readily translate into the context of cyberspace.

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