Code: And Other Laws of Cyberspace

THE RIGHT TO FREE SPEECH IS NOT THE RIGHT TO SPEAK FOR FREE. IT IS NOT THE RIGHT to free access to television, or the right that people not hate you for what you have to say. Strictly speaking—legally speaking—the right to free speech in the United States means the right to be free from punishment by the government in retaliation for at least some (probably most) speech. You cannot be jailed for criticizing the president, though you can be jailed for threatening him; you cannot be fined for promoting segregation, though you will be shunned if you do; you cannot be stopped from speaking in a public place, though you can be stopped from speaking with an FM transmitter. Speech in the United States is protected—in a complex, and at times convoluted, way—but its constitutional protection is a protection against the government.

Nevertheless, a constitutional account of free speech that thought only of government would be radically incomplete. ¹ Two societies could have the same "First Amendment"—the same protections against government's wrath—but if within one dissenters are tolerated while in the other they are shunned, the two societies would be very different free speech societies. More than government constrains speech, and more than government protects free speech. A complete account of this—and any—right must consider the full range of burdens and protections.

Consider, for example, the "rights" of the disabled to protection against discrimination. The law protects the disabled; social norms don't, neither does the market, and until the law intervened, neither did architectures. The net of these four modalities would describe the protection, in any particular context, that the disabled have. Law might intervene to strengthen the protection—regulating architecture, for example, so that it better protects against discrimination in access. But for any given mix we could understand these four modalities working together to protect (however slightly) the disabled from discrimination.

In the terms of chapter 7, we could then use the same four modalities to consider within each context the protection from constraint, as well as the imposition of reg