From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 5 Jun 1997 15:41:19 +0800
To: cypherpunks@cyberpass.net
Subject: Virtual picketing
Message-ID: <3.0.2.32.19970605003513.00709a10@postoffice.pacbell.net>
MIME-Version: 1.0
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I think that analogies are useful to illustrate a point, but a poor basis
for making new laws or new policies. I think it makes more sense to look at
the reasoning behind the first policy, and/or the combination of conditions
and policies that created it, and see if they're present (or not) in the
situation which seems to require a new policy. 

In the particular case of the Internet, I don't think it's at all clear
that a public highway is the best (or only) analogy which is appropriate -
for example, one could also draw an analogy to a *freeway* .. which, at
least in many places, are not open to picketers or pedestrians of any sort. 

Another easy analogy is to the postal service - it's more or less
government-run (haven't kept track of the precise line that's drawn), but
there's certainly no right to "picket" communications sent using this
government-owned media .. I don't get to add extra pages to letters that my
neighbors get, nor they to mine. And there's no First Amendment problem
there - if I want to communicate with someone about an issue, I can send
them mail. Third parties have no right to interfere, nor to learn our names
so that they can bombard us with mail. 

And the same is true for communications sent by private carriers like FedEx
and UPS, even where those private carriers use public facilities like roads
and sidewalks and airports to carry on their private businesses, delivering
private communications. Incidental use of a public facility does not
nationalize a private person/organization. (I think the argument is
stronger where a private party monopolizes a public resource - but I
suspect that my gut reaction to that isn't compatible with what courts are
doing these days.) 

This discussion is getting waylaid with a host of weakly-related and
poorly-understood legal doctrines - e.g., a "right to picket", "public
forums", and "right to privacy". Instead of getting bogged down in those
tarpits (or distracted by their attractive pseudo-official flavor), let's
focus on the real question(s) at hand. I understand to proposal to be that
it'd be somehow beneficial if the government interferes with communications
between consenting parties if the communication happens to touch or utilize
a publically owned/funded resource ... or that such interference is allowed
or required by the First Amendment. I think that presents a much clearer
and more fundamental First Amendment question - e.g., can the government
force me to say things I don't want to say? Can the government intercept
speech from me to another person and preface or wrap it with some sort of
counterargument provided by people who disagree with me? I think the answer
is (and should be) a slam-dunk "no". No tricky analogies needed. 


--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.
                            |