Free Speech, Semiosis and Cyberspace: The Hyperlink as Nexus to Felicity

Abstract

This paper sets forth some preliminary observations about the construct of cyberspace and begins to develop an analytical framework using concepts developed from the intersection of communication theory (broadly interpreted) and free speech doctrine. The purpose of this framework is not to advocate regulation or non-regulation of any particular online behavior but to identify the particular points of challenge to existing thought and doctrine posed by the new digital communication technologies collectively referred to as cyberspace. A central thesis of this paper is that the technical characteristics of a medium have significant impact on the effectiveness of communication to do, rather than just say, things. In particular, that certain technical characteristics of cyberspace lower the barriers to entry for amplification and that such amplification, together with certain other characteristics of networks discussed in Part V, change the quantitative and qualitative nature and effects of mediated speech. These amplified effects have the potential to significantly increase the potential for social harms resulting from such speech. This paper attempts to illustrate how these characteristics interact with legal doctrine and state interest in the context of free speech. Part I of this paper discusses the relationship between form and substance, and medium to message, as a prelude to understanding why technical characteristics of mediated systems are inseparable from their effect on meaning itself. Part II discusses cyberspace as a social construction and examines the use of metaphor in describing cyberspace and how substantive legal doctrine is affected by choice of metaphor. Part III examines the concept of software as the content of mediated digital communication and introduces speech-act theory as a potentially useful tool for understanding different types of online communication. Part IV provides an overview of certain free speech doctrines and underlying principles and looks at their relationship to specific concepts in communication theory. Part V highlights some of the particular characteristics of cyberspace - principally the effects of digital encoding - and how these interact with various social and legal interests. Part VI suggests the hyperlink as the primary unit of social construction in cyberspace and as the nexus between individual communication and social community. This section briefly reviews the emerging law and legal analysis relating to hyperlinks and proposes a semiotic approach to applying legal doctrine to linking. The paper concludes in Part VII by setting out some areas for further inquiry.