Legislating the Tower of Babel: International Restrictions on Internet Content and the Marketplace of Ideas

I. INTRODUCTION 418 II. FOREIGN THREATS TO FIRST AMENDMENT PROTECTION OF ONLINE AMERICAN NEWS CONTENT 419 A. Differing Standards of Speech Protection 421 1. Defamation 421 2. Liability of Internet Service Providers 422 3. International Effects on State Law Protection of Speech 423 B. Foreign Criminal Liability for Speech 425 C. Disproportionate Impact on Small Publishers and Individual Content Providers 426 D. Additional Problems 428 III. THE NEED FOR INTERNATIONAL AGREEMENT ON PROTECTION OF SPEECH 429 A. The Threat of "Watered-Down'" Speech 429 B. Enforcement of Foreign Judgments 430 IV. A PROPOSAL FOR SPEECH LAW HARMONIZATION 431 V. THE FCC AND DOMESTIC MEASURES 435 VI. CONCLUSION 437 I. INTRODUCTION New technologies that transform the way people communicate worldwide perpetually create new challenges for the protection of free speech in America. The First Amendment was written during a time in which the printing press, the quill pen, and word of mouth were the only viable methods of spreading information. In spite of that, judges, lawyers, and politicians have reinterpreted and reenvisioned the First Amendment as applied to new media, including technological advances of the twentieth century, such as radio and television. This flexibility of the First Amendment's application has been one of its greatest strengths. (1) The Amendment's adaptability may derive from the simplicity of its message: citizens should be free to produce and share political speech and social views without fear of government interference. (2) So long as this principle can be applied to new technologies, the First Amendment thrives. However, the modern innovation of communication via the Internet strains that fundamental idea. Unlike prior advances in communications technologies, the Internet allows individual users to reach an international audience virtually instantaneously. Posting information online allows its users to transmit content from country to country just as effectively as distributing that content within the confines of one's own neighborhood. The First Amendment may prohibit federal and state governments from unduly hindering civic debate, but it can do nothing to similarly prohibit foreign governments from taking even more extreme measures, such as placing an outright ban on Internet speech when that content is distributed within foreign borders. Thus, the benefit of the Internet's broad reach is paradoxically also a disadvantage in terms of First Amendment protection. The limitations to the First Amendment's application to the Internet are especially ironic, given that the Internet is perhaps the most democratic medium of speech to date. (3) To spread information via the Internet, one does not need any significant financial capital, a workforce of employees, skilled knowledge, or special equipment beyond access to a computer and some rudimentary skills to operate it. The Internet thus has the potential of enabling individuals to voice their ideas regarding any issue--a power traditionally held by only those who had the money and resources to print publications or to broadcast over the airwaves. It remains to be seen how, if at all, the First Amendment will shield American online content from foreign legal restrictions on speech. This Note details several international threats to American-originated Internet content. …