This is a well thought out paper on the topic. I thought it might stimulate some valuable discussion. Below is an excerpt from the Introduction.

Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech
Restrictions, Libel, State Action, Harassment, and Sex

By Eugene Volokh


Speakers' desires are fairly simple: generally, they want more listeners.1 But listeners don't just want more speakers talking to them. Listeners want more control over their speech diet--a larger range of available speech coupled with greater ease of selecting the speech that's most useful or interesting to them.

The success of the new electronic media in the "marketplace of marketplaces" of ideas--where information providers compete for that scarcest of resources, the attention span of modern man--will turn on how well they can satisfy listeners' desires.2 The new media have one significant advantage: they can give listeners many more choices. But for listeners, that's not enough. For listeners, what the new media omit--time-wasting junk, insults, material that might be harmful to their children--is just as important as what they include. Listeners care about this outside the online world, and they care about it just as much online.

In the following pages, I will discuss three categories of online speech issues and look at them partly, though only partly, through the lens of the listeners' interests:

1. Edited Electronic Conferences: One of the most significant features of the new media is the interactive electronic conference bulletin board, newsgroup, discussion list, or the like. People who listen in on these conferences (and most participants spend much more of their time listening than speaking) want speech that's relevant to their interests, readable, reliable, and not rude. Sometimes an open, unedited electronic conference can provide this, but often it can't. Often--as conference operators have been learning--editing is critical to making online speech worth listening to.

At the same time, editing is content control, the sort of thing that, if the government did it, would be called "censorship." It includes limitations on who may speak, removal of people who speak badly (in the editor's opinion), the deletion of inappropriate messages, and automatic screening of messages for profanities. Many have expressed concern about this sort of private speech restriction.

In Part I, I will defend the propriety of private, nongovernmental, content control on electronic conferences. I'll argue that:
- Conference operators should generally have the right to decide what's said on their conferences and who says it.
- Libel law generally ought not penalize conference editors by imposing on them extra risk of defamation liability beyond what operators of unedited conferences must bear.
- The conference operator's power to edit should remain even if the conference is run on a government-owned computer or if the operator is a government employee.

2. Avoidance of Offense: Listeners don't want to hear material that offends them. This doesn't mean they only want to hear what they agree with; controversy is usually more fun than agreement. But some speech is offensive enough that its emotional cost to the listeners can exceed the informational benefit they derive from the conversation.

No one likes to be personally insulted. No one likes to hear one's race, sex, religion, or deeply held moral beliefs rudely attacked. Often, we're discomfited even by watching others argue rudely with one another. Some speech like this can be annoying; some can ruin one's mood for hours. People don't go to parties where they think it likely that the other guests will be rude to them--neither do they want to participate in electronic conferences where this happens.

In Part I, I'll argue that private editing is an important tool for giving people the opportunity to interact in the polite environment they may prefer. In Part II, I'll discuss what the government may do to protect people from speech that offends them when private editors can't or won't edit it out. I'll suggest that:
- In general, the government ought not be able to restrict offensive speech in electronic conferences (unless it's a threat or falls into some other Free Speech Clause exception). Some telephone harassment laws, and possibly some aspects of hostile environment harassment law, seem to already impose restrictions on online speech,3 but to the extent they do, they're unconstitutional.
- On the other hand, the government should be more able to restrict one-to-one speech--such as personal e-mail--that's aimed at unwilling listeners; such restrictions protect unwilling listeners while still leaving speakers able to communicate with willing ones. The best way to implement such a restriction would be to let listeners demand that a speaker stop sending them direct e-mail, a power people already enjoy with regard to normal mail.4 Such a rule would be better than direct extensions of telephone harassment laws, which often embody dangerously vague prohibitions on speech that's "annoying" or "harassing."

~See you at the SCIWire-used-to-be-paralyzed Reunion ~