Perhaps the most well-liked axiom of post-modern philosophy is that our conceptual systems are largely metaphorical. Thus it is surprising neither that our discussions of electronic communication invoke images of highways and networks, nor that our arguments about the future of electronic communication frequently concern the verisimilitude of our metaphors. This paper describes aspects of the political history and administrative structure of three cultural institutions, in the United States: museums, public lands, and billboards. The paper suggests that the ethical, legal, and practical dilemmas facing the growth and development of the Web will be conceived of, and faced, quite differently depending on the institutional metaphors we adopt. Similarly, the way we frame the questions we think most important is determined by the kind of institution we think the Web ought to be, and the paper proposes the metaphor of "public space" to describe the activities on the Web.
Questions concerning access, authority, ownership, and individual liberty have been an important part of the history of the American museum, where the delicate balance between public and private resources have shaped highly controlled, but also extremely open, "public" spaces. In contrast, the allocation and regulation of public lands in the US has been characterized by an oddly heterogenous, even ad hoc, series of laws and controversies. Similarly, the history of the commercial billboard in America demonstrates the difficulty of ad hoc regulation of public space, even as it presents an example of the need to ensure a freedom from, as well as a freedom to. By presenting short case studies from the histories of museums, public lands, and billboards, this paper tries to shed light on some of the challenges facing the World Wide Web as a new, hybrid form of social and cultural institution.
Introduction
Certainly the most famous of recent U.S. Supreme Court decisions involving the city of Chicago, is Chicago Police Department vs. Mosley (1972). The case concerned a postal employee named Earl Mosley, who had been picketing the Jones Commercial High School, claiming that the school discriminated against black students. His seven-month protest was punctuated by the introduction of a City ordinance which prohibited demonstrations within 150 feet of a school building while the school was in session. But the ordinance made an exception in the case of a school involved in a labor dispute, and so Mosley brought an action seeking relief.
The Court ruled that the ordinance violated both the Equal Protection Clause of the Fourth Amendment of the U.S. Constitution, as well as the First Amendment.[1] More specifically, the Court ruled that because the ordinance distinguished legitimate picketing from illegitimate on the basis of subject matter, it was unconstitutional. Questions concerning the so-called reach of the Mosley decision continue, and the case must be considered at least partly responsible for the Court's recent partitioning of public property, for the purposes of dealing with cases involving the First Amendment.
It is appropriate to begin this talk with a reference to Mosley, not simply because we are meeting in Chicago, but because any discussion of the World Wide Web as a social and cultural entity should be informed by the ways the Web has thus far been represented by political and legal institutions. The argument of this paper is that, at least in the U.S., what is most notable about these representations is their reliance on analogies and metaphors which fit poorly the experience of designing and using the Web.[2]
To the extent that our legal institutions have debated questions concerning large scale computer networks at all, they have tended to treat what goes on in those networks as extensions of speech. Thus, the protection afforded those activities depends in large part on what analogy the courts adopt in their analyses of the computer medium. This is so because of the Court's tendency to grant First Amendment protection to speech, based not only on its content,[3] but also on the medium in which it is communicated. In a 1969 case that found the imposition of an FCC "fairness" doctrine, on radio and television broadcasters, consistent with the First Amendment, Justice White wrote:
The difference in standards has proved to be a general weakening of protection, as one moves from print to electronic media. Thus newspaper publishers, broadcasters, and common carriers (e.g. telephone companies) have received very different treatment, independent of content considerations. This emphasis on the medium of communication has, according to a recent article in the Harvard Law Review, "created a fragmented First Amendment with a trifurcated communications regulatory structure."[5]
Also relevant to the way the activities on the Web are likely to be interpreted in the U.S., is the Court's development of a "public forum doctrine"[6], which "assigns different levels of scrutiny to be applied to regulations depending on the categorization of the public property."[7] Specifically, the level of scrutiny is determined by the Court's choosing to label a particular property as either a public forum, a limited public forum, or a non-public forum. The method by which the Court determines the category to which a particular property belongs, be it public or private, is clearly a matter of great concern. [8]
The point of this introduction is that if we interpret Web activities as basically extensions of speech, and thus submit to the sorts of analogizing that has dominated legal interpretations of communication technologies, we will ignore a good deal of the character of the Web, and may well inhibit its development. Specifically, by concerning ourselves only with questions about speech, and public forums, we ignore the feeling that, perhaps more than any other electronic medium, the Web has created a new form of public space. That is, in addition to the various types of expressive communication that now permeate the Web, there is also occupation, object construction, and sometimes habitation, on the Web. Arguably, these spatial features are those most likely to significantly change the way we live, and thus we would do well to view speech as too limited a metaphor for Web activities.[9]
The Web as Public Space
By adopting the metaphor of public space, we broaden significantly the sorts of concerns important to the design, operation, and use of the Web.[10] As we have discussed some of the issues associated with rights of speech, we now consider some of the components of a theory of spatial rights.[11] Here the primary questions concern both the use and control of a given space.[12]
Perhaps the most basic issue for both designers and users of public space is access , and here we should distinguish at least three types that contribute to the character of a public space:
Although questions of access are generally answered prima facie in current Web site and document design, as the constraints imposed by the computer medium fall away we can expect designers and operators to more often debate the desirability and consequences of differential access.
But perhaps a more pressing question concerns the freedoms users are to enjoy on the Web. For a public space, the question of freedom involves, according to Lynch, "the right of use and action, of behaving freely in a place or using its facilities."[14] As virtual libraries develop, as more interactive sites appear, and as structures like MOOs become more integrated into site design, we can expect such rights to be a matter of some controversy. But we should also keep in mind that there are freedoms from as well as freedoms to, and it is the former that have inspired important attempts to construct public spaces that offer sufficient security, and freedom from harassment, to allow for meaningful use.[15]
A third set of issues concerning public space involve appropriation and control. Although we speak frequently of interactive media, we are rarely talking about a situation in which the user takes over the space, even temporarily. And yet it may be that for some purposes, and for some individuals, the ability to control and even change the parts of the Web that are used and/or occupied, may be a requirement for meaningful use. As with our discussion of freedoms, we quickly see the need for tradeoffs between individual and groups, between private and public interests.
This brief introduction to some of the questions involved in the construction, management and use of public space, is meant to enlarge the circle of concern for those who think about the future and possible regulation of the Web. Though the concerns about public space are certainly consistent with the Constitutional concerns traditionally associated with communication technologies, the adoption of a public space metaphor may allow us to avoid some of the vicissitudes that have characterized the regulatory histories of broadcasting, telecommunications, and cable television, as well as some of the difficulties that have resulted, and will continue to result, from the "public forum doctrine." The metaphor may also provide a vision broad enough to do justice to the social and cultural possibilities offered by the Web, while giving us a worthwhile framework for addressing some of the social and legal consequences the public's participation in the Web's development and use. Finally, the model of public space may inspire more sophisticated discussions than a "medium-message" framework allows.
But of course it also may be that the management and regulation of public space is an even more perilous task than the protection of speech. In the final section, I want to suggest three examples of cultural institutions, in the U.S., that would be useful objects of study for those interested in applying the public space metaphor to the activities that go on in the Web. I've chosen these institutions because: a) they have traditionally provoked questions about the management and use of public space, and the relations between public space and private property;[16]b) because they seem to be the sorts of models that are thought by some to be most fitting for particular sites and structures on Web; and, c) because their recent histories will help to raise some important questions about the public space metaphor.
Museums, Public Lands, and Billboards
The French scholar René Huyge was apparently the first to point out that, in Western Europe, public museums and encyclopedias appeared at the same time.[17] Contemporary with the French Encyclopédistes publication of their program, France put part of the Royal collections on display in the Luxembourg Palace; and, in England, the creation of the British Museum was contemporary with the publication of Chamber's Cyclopedia.[18] And while these "openings" represented the emergence of new public space, and are often attributed to the spirit of the 18th century Enlightenment, the change occurred in the absence of a change in either ownership or authority in those spaces.
Unlike the European case, public museums appeared in the U.S. before great private collections had been accumulated, and among the curators and directors of these early museums there seems to have been a significant feeling of public obligation. Yet when the private collections did appear, and when public space realized on private property became the dominant form of the American museum, virtually no attempt was made to legislate the public's rights in such spaces. And so, while modern museums are often considered models of public service institutions, and while they are either publicly owned, directly subsidized by the public, or subsidized indirectly by the structure of tax laws, they are granted tremendous autonomy in the management and regulation of their spaces.
The "mission" of museums, whether it be described as educational, cultural or experimental, has always been the museum's best defense against those who would limit its power to dictate the constraints governing its spaces.[19] It is this mission, for example, rather than any particular obligation to provide public resources, which qualifies the institution for tax-exemption and to receive tax-deductible gifts.[20] Yet, amidst the often rigid restrictions on access, freedom and control, museums often provide extremely successful public spaces, ones which allow for meaningful communal and individual activities. To articulate the spatial rights desirable in settings such as these will, I believe, be an important task as virtual museums and libraries[21] begin to appear.
Whereas the management and design decisions made by museums have only rarely been tested in the Courts, and are perhaps considered insignificant in assessing the public's spatial rights, the administration of public lands represents a much more scrutinized and controversial case. In the U.S. the federal government owns nearly a third of all lands, and this even after 12 years of Republican administration. Still, while the issues concerning the care and management of these public lands have been clearly articulated[22], the history of land policy has largely been the history of removing these lands from the public sphere.[23]
If Ralph Nader is correct, when he writes that "Land has always served to define competing visions of America's destiny."[24], then it is also true that the visions have not seemed so very different from one another. The first Federal policies were designed to allow not only private citizens to acquire land at low prices, but also to allow mining corporations to exploit and possess lands for fees well below real value.[25] The legacy of these and later policies (both privatization- and conservation-minded policies) has been peculiar, in part because it has either produced, or has followed from, the common perception among U.S. citizens that public lands are spaces in which nothing particular is happening. That is, meaningful and productive use of such land is often seen by Americans as something that can happen only when the land is used for private purposes, and where public access is tightly restricted. I would argue that while we may see Nader's comment as applicable to discussions of space more generally, we should also beware that an analogous perception about what constitutes meaningful and productive use of bandwidth may be emerging here.
The case of billboards in the U.S. presents an interesting combination of private property and public space, both because the degree of acceptable private intrusion into public space has usually been decided locally, and because the management of billboards points to the fine line between regulating media and content. Although local communities are generally considered immune from antitrust liability when they impose severely anticompetitive restraints on billboards,[26] users of public spaces generally have no particular rights protecting them from exposure to these signs. Similarly, what constitutes acceptable content for billboards has little to do with the spatial rights of those who use public space.[27]
Perhaps the most significant aspect of billboards in the present discussion concerns their management. Local communities can legislate the number of billboards through zoning ordinances, which themselves may have content restrictions. And it seems that local governments in the U.S. are free from restraint of trade liability concerning billboards, even when their zoning legislation knowingly shows preferential treatment to particular individuals and/or corporations.[28] One consequence of this limited liability, is that we should carefully question the distinction between the medium and the message in evaluating the objects and expressions imposed on users of public space.
In presenting these very brief discussions, I am not claiming that museums, public lands, or billboards are exemplary models for desirable public space, or for the activities that go on in large scale computer networks. But, I would argue that they embody features of the sorts of spatial structures that are, and will be, common on the Web, and further, that they draw our attention to the inevitable management questions that both operators and users of the Web are likely to face as the number of users and providers increases.
Conclusion
The purpose of this paper has been both to suggest the limited nature of "speech" and "highways" as metaphors for the realities of the World Wide Web, and to raise a number of questions about the Web considered as some form, or various forms, of public space. Although it is probably undesirable to propose a particular set of spatial rights for computer-mediated activities, an analysis of the design and management of successful and unsuccessful public spaces can only inform the development of the Web in productive ways. I have tried to suggest some of the institutions might be considered in such an analysis.[29]
[1] 92 S.Ct. 2286, at 2290 (1972). Justice Marshall delivered the opinion.
[2] I apologize for limiting my discussion to the U.S. case, and do so only because I am unfamiliar with the legal histories of other countries; I would welcome comments about, and similar analyses of, the legal institutions of other nations.
[3] For example, commercial speech and even defamatory speech both receive little or no First Amendment protection, no matter what the medium. See Laurence H. Tribe, American Constitutional Law 930 (2nd edition, 1988).
[4] Red Lion Broadcasting Co. vs. FCC, 395 U.S. 367 (1969). Although the fairness doctrine was abandoned by the FCC in 1987, legislation has recently been introduced to bring it back. See "Fairness in Broadcasting Act of 1993", H.R. 1985, 103rd Congress, 1st session (1993).
[5] "The Message in the Medium: The First Amendment on the Information Superhighway", Harvard Law Review, March 1994 (107 Harvard Law Review 1062 *1069).
[6] see Perry Educational Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)
[7] Brett W. Berg. "Diminishing the Freedom to Speak on Public Property: International Society for Krishna Consciousness, Inc. v. Lee". Creighton Law Review, June 1993 (26 Creighton L. Rev. 1265 *1265).
[8] id. Berg criticizes the various "tests" the Court has used to categorize property, and indeed it is not obvious that some of these tests (e.g. the "historical use" and "primary purpose" tests) would result in the protection of First Amendment rights on media like the Web.
[9] Similarly, even though "information superhighway" is a spatial metaphor, it poorly captures the spatial possibilities of the Web, since one usually stops on, inhabits, or occupies, a superhighway only in special, often unfortunate, circumstances.
[10] I have refrained from using the term "cyberspace", and will continue do so, because I wish to discuss questions motivated, and issues raised, by the public space metaphor, without regard to the medium in which it is realized.
[11] see e.g. Kevin Lynch. A Theory of Good City Form (MIT, 1981).
[12] Stephen Carr, Mark Francis, Leanne G. Rivlin and Andrew M. Stone. Public Space (Cambridge, 1992), p.137. This book appeared in the Cambridge Series on Environment and Behavior and, as should be clear from the following discussion, I believe Webmasters and designers would do well to explore the literature of Urban Planning.
[13]For a broad discussion of "computer-based signs" see Peter Bøgh Andersen, Berit Holmqvist, and Jens F. Jensen. The Computer as Medium (Cambridge, 1993), esp. chapter 1: "A Semiotic approach to programming", pps. 16-67.
[14] see note 10, p. 205.
[15] see e.g. K.A. Franck and L. Paxson, "Women and urban public space: Research, design, and policy issues. In E. Zube and G. Moore (eds.) Advances in Environment, Behavior and Design, Vol. 2, (Plenum, 1989), pps. 122-46.
[16] Throughout this paper I have distinguished between space and property, both because many public spaces are located on private property (e.g. shopping malls, and corporate atria) and because the experience of public space may be had in areas that are hybrids of public and private property (e.g. MOOs). A discussion of the Supreme Court's famous Pruneyard decision (447 U.S. 74), and its consequences for our thinking about activities on the Web, is included in a longer version of this paper.
[17] "Le Rôle des Musées dans la Vie Moderne", Revue des Deux Mondes, 15 October (1937).
[18] Kenneth Hudson, A Social History of Museums (Macmillan, 1975), p. 6.
[19] See the fascinating series of cases involving the Barnes Foundation's right to drastically limit access to their collection, while maintaining their status as a tax-exempt public charity. E.g. Wiegand v Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953); and Commonwealth of Pennsylvania v Barnes Foundation, 398 Pa., 458, 159 A.2d 500 (1960).
[20] "The typical private non-profit museum qualifies for tax exemption under the 'educational purposes' provision of I.R.C 501(c)(3). The theory of such preferred tax treatment is that the museum is, directly or indirectly, performing a service to the public." John Henry Merryman and Albert E. Elson, Law, Ethics and the Visual Arts: Cases and Materials, vol. 2 (Matthew Bender, 1979) 7-27.
[21] I have not discussed traditional libraries explicitly, because they are typically regarded by the legal community as sui generis. See e.g. Henry H. Perritt, Jr. "Symposium: The Congress, the Courts and Computer Based Communications Networks: Answering Questions about Access and Content Control", Villanova University School of Law (38 Vill. L. Rev. 319).
[22]see e.g. John B. Loomis, Integrated Public Lands Management (Columbia U.P., 1993).
[23] id. esp. chapter 2.
[24] from the introduction to Carl J. Mayer and George A. Riley, Public Domain, Private Dominion: A History of Public Mineral Policy in America (Sierra Club, 1985), p. viii.
[25] I am thinking here of the Homestead Act of 1862, and the 1872 Mining Law.
[26] This is a consequence of Parker v Brown, 317 U.S. 341 (1943).
[27]Acceptable content, in the eyes of the Supreme Court, seems to hinge on the purposes for which billboards have been traditionally used in particular communities. Thus political advertising is acceptable in some areas and not in others. I am not aware of any recent federal cases involving content that might be considered obscene (e.g. recent anti-abortionist billboards).
[28] See the rather disturbing decision in Columbia v. Omni Outdoor Advertising, 499 U.S. 365; 111 S. Ct. 1344. See also the dissent by Justice Stevens.
[29] The author would welcome comments on this preliminary version. He would also like to express his sincere thanks to Ms. Rifka Wein for her invaluable assistance.