From: "Matthew J. Miszewski" <mjmiski@execpc.com>
Date: Thu, 7 Nov 1996 10:43:15 -0800 (PST)
To: ravage@EINSTEIN.ssz.com>
Subject: Re: FW: Dr. Vulis is not on cypherpunks any more [RANT] (fw
Message-ID: <199611071842.MAA04703@mail.execpc.com>
MIME-Version: 1.0
Content-Type: text/plain


> Hi all,
> 
> There is one important legal aspect which the operator of the Cypherpunks
> mailing list has opened themselves up for with this action. In short they
> have now opened themselves up for defamation and liable suites by imposing
> an editorial policy on the contents of this list (1).

First of all I support John's decision.

However, these types of actions make it difficult to further any 
common carrier legal development.  As most on the list will agree, we 
would like certain content freedom on the Net.  When the SPA 
discussed thier contributory infringement we all cringed (especially 
those running small ISPs).

My point is that this decision should be based upon anything but 
content.  Arguments can be made that the Dr. "asked" to be removed by 
techincal means.  Arguments can be made that the Doctor abused 
remailers (assuming a writing analysis can identify him and that 
"abused" has any definition 8-).  Saying that the Doctor was 
decreasing the S/N ratio IS content based restriction.  It DOES open 
up the door.

> This opens up the potential, for example, for Tim May to sue the operator of
> the Cypherpunks mailing list now for posts from users (even anonymous ones)
> which defame or otherwise liable his character, reputation, or ability to
> pursue income in his chosen field. In short the operators of the list
> becomes publishers and distributors of the material. It is the legal
> difference between a bookstore and a book publisher. 

While I wish he was wrong, I have to agree.

> Censorship is censorship, irrespective of the source of the limitation.
> Free expression is impossible in an environment of censorship. The right to
> speak not only implies a right to not speak, it also implies the right to
> emit complete mumbo jumbo. The actual content of the speech is irrelevant.

That is not completely true in the USA.  Content can and is 
restrained.  You cant yell "FIRE" in a crowded theatre.  Commercial 
speech is restrained.  And, yes, sexually explicit language used on a 
jobsite is effectively restrained (I am a discrimination lawyer, 
believe me, it is).
 
> I have argued in the past that this list is a defacto public list because of
> the way it is advertised and to the extent it is advertised. All the protests
> by the operator to the contrary will not convince a court.

All of the "advertisements" and their "extent" are totally 
irrelevant.  John does not advertise.  Members might.  So what?  Am I 
to understand that if I get enough people to tell others that my 
favorite privately held company is really a public one that I can 
then have a court force them to make an IPO?  It is private, it is 
controlled by John, not the government (unless that white van outside 
his house is actually filtering his packets 8-).

> 
> Hope you folks have a good lawyer.
> 

Very happy to volunteer my services.

> (1)  ;login:, Oct. 1996, V21N5, pp. 27
> 
> 
>                                                     Jim Choate

Matt 
 
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