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Old wine in new wineskins: the First Amendment and the Internet.

Standing atop the amendments to the United States Constitution, the venerable First Amendment faces opportunities and challenges in the twenty-first century that were unimagined a mere two decades ago, much less two centuries ago.

The Internet, a public medium in terms of the creation and dissemination of information, now stands at the intersection of information and freedom of speech. In addition, the Internet as a medium of mass communication provides both challenges and opportunities for reexamination of the separation of church and state, a core principle of our Baptist heritage that impacts religion and public life at large.

Too whit, the first thirteen years of public Internet history (1995 to the present) call into question the survival of First Amendment fights as understood since their conceptualization in the very non-digital, late eighteenth century. During this thirteen-year span, previously unframed questions challenging the pillars of the First Amendment have arisen. At the same time, the introduction and growth of the Internet have provided new tools that have been utilized to both support and oppose First Amendment fights. On a positive note, the Internet enables new levels of public participation and interest in the rights covered by the First Amendment. Conversely, the new level of information dissemination empowered by the Internet parallels growing opposition to First Amendment rights. (1)

In order to understand the point at which the digital world intersects the sphere of the First Amendment, a cursory examination of the primary communication methodologies throughout human history is helpful. The spoken word (or oral tradition) served as the first human communication platform. Although sufficient in early ancient times, the spoken word was entirely dependent upon human memory in order for that which was verbalized to be recorded for use at a later time. Contracts, family history, and tribal myths remained at the mercy of the human mind and the biases, agendas, creativity, and loyalties that shaped the process of remembering.

The shortcomings of dependency upon the spoken word were obvious, and eventually humans transitioned to a more reliable communication platform: the written word. While verbalization remained an important and necessary component of human communication, the written word became the formal, and more reliable, mode of preserving history, framing contracts, hammering out peace treaties, and the like. While the medium of writing has changed over the years--progressing from rock, animal skins, and papyrus to modern paper--the primacy of writing as a means of communication remains unchallenged. Within this context, the First Amendment originated in the late eighteenth century. Although initially verbalized, the words that comprise the First Amendment did not obtain power until they were committed to written form. Today, we recite those words from the written record, words that recognize both the importance of the printed word (by referencing "press" and "petition") and the spoken word (in reference to assembly).

Whereas the spoken and written word served humanity well in centuries past, the twentieth century witnessed the arrival of a new communication platform: the digital domain. Unlike verbalization or writing, digital data, although created (or "coded") by humans, depends upon computers to read and present the data in a useable manner. Originating in the 1940s and rudimentary in the decades immediately following, the world of digital data did not directly impact the masses until the 1980s, the decade that the term "computer" finally became a household word. Today, digital data underpins every aspect of modern society, including personal computers (the most common means of writing), telephone calls, music and video recordings, bank accounts, retail transactions, store inventories, stock markets, automobiles, and much more.

While digital data has supplanted the spoken word and traditional written word in terms of significance, the Internet, sometimes simply referred to as the "Net" or the "online world," is now the most ubiquitous conveyor of electronic information. The term "Internet" essentially refers to the broadcasting, transfer, and reconstruction of digitally-coded data between two or more machines or devices equipped with computer chips. For most of today's online users, this underlying flow of bits and bytes takes place instantly and invisibly.

Although technically birthed decades ago, the world was introduced to the Internet when a company named Netscape went public in 1995. While well-known online companies America Online and CompuServe existed prior to this time, each restricted subscribers to their own portfolio of proprietary information, a closed-end system broadly known as an Intranet. Netscape, however, introduced the masses to the free flow of electronic information through a web browser, a piece of software that allows access to and translates digital data from remote repositories and displays the results on an electronic screen in the form a web page, or web site. (2)

Today, the World Wide Web, e-mail, text messaging, and phone services are among the more popular and visible components of the Internet. Roughly 20 percent of persons worldwide, or 1.25 billion, make use of the Internet in this manner, with Asia, Europe, and North America comprising the bulk of the world's users. (3) Commercially-speaking, businesses worldwide utilize the Internet to track and sale their merchandise from warehouse to store shelf, advertise and sell their products and services, and solicit feedback from their customers. Some businesses exist solely in "cyber-space."

As a purveyor and conveyor of information, the Internet intersects the realm of the First Amendment, while at the same time posing challenges to the newspaper industry and understandings of what constitutes free speech. The print news industry, for example, has experienced dramatic upheaval. Print news, in competition with digital news, has experienced unprecedented decline. The major American dailies have lost 10 percent of all subscribers over the past four years. Among some of the more severe declines, the San Francisco Chronicle plunged 30 percent, while the Los Angeles Times and Boston Globe each dropped by 20 percent. Long the financial enabler of the news industry, newspaper print advertising in 2007 experienced the greatest decline ever measured by the industry. At the same time, Internet "blogging" has resulted in the rise of citizen journalism. (4)

In response, newspapers are increasingly turning to the Internet to publish news and sell advertisements. While the framers of the First Amendment might well applaud the press for embracing new publication mediums, they might just as well shake their heads in puzzlement over the legal issues surrounding the Internet as a medium of free speech. Perhaps the most visible expression of the convergence of the Internet and the First Amendment is that of censorship. For example, United States courts have issued a number of rulings regarding the 1998 Child Online Protection Act (COPA), a law establishing criminal penalties for the commercial distribution of material deemed harmful to minors. In 2004, the Supreme Court upheld a lower court ruling against COPA, arguing that the act violated the First Amendment and posed "potential for extraordinary harm and a serious chill upon protected speech" if the law were allowed to go into effect. (5)

In addition to website censorship issues, the sending of e-marls treads upon First Amendment territory. For example, in recent years various laws have been enacted against the practice of "spamming," a method by which individuals or entities send e-mails en masse to unsuspecting, unsubscribing recipients. Intrusive and unwanted, spam e-mails also frequently are used to transport harmful computer viruses. In one of the most recent spam-related cases, the Virginia Supreme Court issued a ruling concerning a spammer who defended his activities on the basis of the First Amendment. While acknowledging that the amendment protects the right of anonymous speech, the court determined that the First Amendment offers no protection for commercial bulk-emails distributed over the Internet. On the other hand, the court implied that non-commercial spam could be protected as anonymous speech under the First Amendment. (6)

In addition to complicating interpretations of the nature and content of free speech, the Internet has added new wrinkles to the subject of religion in the public square. To begin with, the dynamics of religious discourse in public media have shifted as a result of the growing influence of the Internet as a publishing medium. Among traditional media outlets, many newspapers, in an effort to save money in the face of declining circulation and revenue, have reduced coverage of religion. In 2007, financial challenges led to the elimination of the critically-acclaimed religion section of the Dallas Morning News. In addition, in 2007 the Atlanta Journal-Constitution merged its religion section into a larger "Living" section, and the Wichita Eagle eliminated its religion editor position. (7)

Meanwhile, religion claims a sizeable presence on the Internet. In 2002, a Massachusetts Institute of Technology forum concluded that "new online religious communities are being formed that actively reshape traditional religious identities and practices." (8) Six years later, religious websites are experiencing faster growth than sports websites, and some religious editors of major dailies now use blogs as a way of countering less print space. (9)

In addition to upending the publishing industry and providing a popular platform for religious discourse, the Internet's low-entry barrier flattens traditional religious protocols and structures. Some of the earliest adapters to the Internet included smaller, less influential religious groups as well as scores of largely-unknown religious individuals. Grassroots websites often have greater visibility than official denominational websites. Individuals are able to communicate their personal views widely and effectively apart from any tethering to religious councils, denominations, or even local congregations.

Indeed, the Internet is directly responsible for a new era of religious creativity. For example, in 2001 a handful of individuals used an e-mail campaign to spark a grassroots movement and create a new religion, known as the "Jedi" or "Jedi Knight" religion. The religion, based on the popular Star Wars movies, quickly grew in popularity in English-speaking countries. In 2001, some 70,000 Australians marked "Jedi" as their religious preference during that year's census. The same year, 1.5 percent of all New Zealanders listed their religion as Jedi, as did .7 percent (390,127) of residents of England and Wales. By way of comparison, only 1.1 percent of English and Wales citizens claimed Hindu as their religion. In Scotland, the new religion quickly morphed into offshoot expressions, with 14,052 persons claiming Jedi, "Jedi Other," "Sith" or "The Dark Side" as their religion. Joke or not, the Jedi religious movement demonstrates the power of the Internet to rapidly shape and reshape humanity's religious consciousness. (10)

Traditional religions are likewise impacted by the communications medium of the Internet. In 2002, following 9/11, National Public Radio presented a three-part series entitled "Islam and the Internet." The findings revealed a faith transformed by technology. Whereas Koranic interpretations previously required decades or centuries of dialogue to coalesce, the Internet accelerated the process to by providing instant access to new teachings and interpretations. At the same time, the Internet provides a forum for Muslims outside of mainstream Islamic thought and for women otherwise isolated by geography and cultural barriers. In addition, the online world allows sharing of sermons from all points of Islamic view. In short, Islam, an ancient faith, has entered an era of new vitality as a direct result of the Internet. (11)

Perhaps not surprisingly, the growing interest in religion, enabled by the Internet, has intensified the debate over the nature and substance of the separation of church and state. That debate in America at large, and among Baptists in particular, concerning the separation of church and state has been magnified by the Internet, as both proponents and opponents utilize the medium to spread their views, rally supporters, and maneuver politically in ways heretofore unknown. No longer does the Baptist Joint Committee or Americans United for Separation of Church and State enjoy preeminence as public interpreter of religious liberty and separation of church and state. With Google serving as a primary means through which today's citizens educate themselves about a given topic, Americans United shares the "top 10" search returns for "separation of church and state" with four personal sites, a non-profit organization by the name of "Internet Infidels, Inc.," a professional atheist, and Wikipedia. A search for "Religious Liberty" returns similar results. The website ReligiousLiberty.Com is owned by a family who believes America was founded as a Christian nation. (12)

In a similar fashion, the Internet has empowered freedom of the press by allowing anyone to freely publish his or her opinions and news items, in the process raising fundamental questions as to the definitions of "news," "press," and even "freedom." Meanwhile, the Internet has revolutionized public assembly, offering a new medium for assembly ("virtual" gatherings), while providing digital tools for coordinating petitions to the government. Finally, the scalability of the Internet has engaged Baptists at all levels in these critical conversations.

(1.) See http://www.firstamendmentcenter.org/news.aspx?id= 19031, accessed April 21, 2008.

(2.) Netscape went public on August 9, 1995, with an application that made the Internet accessible to the public: the Web browser. See http://money.cnn.com/magazines/fortune/fortune_archive/2005/07/25/ 8266639/index.htm, accessed April 21, 2008.

(3.) See http://www.internetworldstats.com/stats.htm, accessed April 22, 2008.

(4.) See http://www.editorandpublisher.com/eandp/news/article_display.jsp? vnu_content_id=1003781895, accessed April 24, 2008. See also http://www.editorandpublisher.com/eandp/news/article_display.jsp? vnu_content_id=1003781895, accessed April 23, 2008.

(5.) See http://epic.org/free speech/copa/, accessed April 21, 2008.

(6.) Hassell, C. J., Koontz, Kinser, Lemons, and Agee, J. J., and Russell and Lacy, S. J, Appeal Court of Virginia, February 29, 2008. See http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf, accessed April 26, 2008. See also http://www.circleid.com/posts/ 82293_virginia_court_first_amendment_spam_jaynes/, accessed April 26, 2008.

(7.) See http://www.christianitytoday.com/ct/2007/apri1/2.19.html, accessed April 20, 2008.

(8.) See http://web.mit.edu/comm-forum/forums/religion.html, accessed April 26, 2008.

(9.) See http://www.marketingvox.com/archives/2007/10/22/ top-50-website-rankings-for-sept-issued-retail-religion-politics-heat-up/, accessed April 28, 2008.

(10.) See http://en.wikipedia.org/wiki/Jedi_census_phenomenon, accessed April 29, 2008.

(11.) See http://www.npr.org/programs/watc/cyberislam/, accessed April 29, 2008.

(12.) Search queries performed April 21, 2008.

Bruce T. Gourley is the interim director of The Center for Baptist Studies, Mercer University, Macon, Georgia.
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Author:Gourley, Bruce T.
Publication:Baptist History and Heritage
Date:Jun 22, 2008
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