This paper is dedicated to Terik L. Trout.
The Internet's movement out of the confines of academic, governmental, and military usage and into the realm of mass media and popular communication enabled the creation of a novel environment for the implementation of communication on both personal, intimate, and broad, pluralistic, levels. The unique ability of the Internet to allow for global reach of content on an essentially continuous basis has facilitated a revolution in how information of all kinds is marketed, shared, archived, and ultimately experienced. Accordingly, it can be said that the Internet has allowed minority groups that have been conventionally marginalized due to views or attributes that are discordant with mainstream thinking a refuge where such content may be freely realized, and thus a myriad demography of subcultures have become prominent in cyberspace. Persons of non-heterosexual orientations - most conveniently labeled as "queer", despite the once-disparaging meaning of the word - have been among the most conspicuous of minorities to capitalize on the liberties facilitated by the Internet. Lesbians, gay men, bisexuals, transgender persons, and queer youth have all established mechanisms of communication through the WWW (World Wide Web), chat rooms, e-mail listserves and other Internet modalities. Although the visibility of queers is steadily growing in conventional mass media formats - most notably in television, film, and popular print journalism - the diversity of queer representations found on the Internet is unmatched elsewhere in the spectrum of broadly accessible communication. Thus, the availability of unhindered freedom of expression on the Internet should be viewed as a foremost concern for queer populations, as well as other minorities seeking sociopolitical agency.
This paper explores issues of freedom of speech and expression on the Internet as these relate to content of interest to queer populations; it considers the legal challenges thus far mounted to regulate such freedoms, and the sociolegal underpinnings and precedents in law which help formulate legalistic responses to Internet-based content. The Internet has in many ways proven to be a difficult arena in which to apply existing legislation and case law precedents derived from more conventional scenarios. The boundaries between what is public and private, what is proprietary to the individual and what is part of a greater corporate or governmental arena of control, are much less clear and less rigid than are traditional lines of social demarcation. While this paper predominantly uses legislative and juridical examples from the Federal and state-level legal systems of the United States of America, it considers the Internet as a global affair and stresses the need for international perspectives on how the Internet - in relation to queer manifestations and more generally - is viewed and how regulatory issues are conceptualized. The significance of learning from and applying philosophical constructs originating in both queer theory and the theory of jurisprudence to the current controversies facing how queer populations use the Internet are considered herein, as such theoretical bases have often been neglected in case law decisions and social means of arbitration alike.
The origins of the Internet as an integrated network of communication between computer systems are reflective of both personal visionary efforts and complex hierarchies promoted by institutional and governmental groups to further specific goals. Beyond these origins, we now face the applications of the varied technological modalities that the Internet enables, and the fact that the flexibility of these modalities allows for nearly any imaginable type of content to be stored and/or transmitted through the Internet. In some ways, precedents in the legal and social regulation of communities and environments appear to have more practical applications to current questions of how the Internet should be controlled than precedents in the regulation of communicative media (e.g., print media, television, radio). Likewise, scholarship in cultural geography, architectural history, political science, and the sociology of communities may better inform our understanding of the Internet than do studies in communications and associated fields. In regard to queer manifestations, the similarities and differences between the Internet and conventional place-based social interactions are quite consequential, as are the likenesses and differences between the Internet and traditional media of mass dissemination.
The Internet encourages proactive rather than passive communication, and this scenario may lead to a truly interactive experience; such interactivity has become one of the primary aspects of the Internet that fosters an environment for discourse, rather than simply creating a database that records such dialogue. What is more, unlike many traditional geosocial sites of queer interaction - sites that for legal and social reasons have often been covert, even fugacious - the Internet offers the choice between an anonymous or quiescent encounter and one that has some record, some sense of permanence accorded via a bit-stream of data. An Internet Relay Chat (IRC) conversation may be saved and printed, a website of interest can be bookmarked in one's web browser, e-mail can be archived on one's hard disk. Or conversely, all of these actions may not be taken and no print-out, nor any localized electronic record, will exist if the user so chooses. When accounts of queer youth and their first forays into the actualizations of homosexuality on the Internet  are compared to the shrouded, surreptitious visits to tangible sites of homosexual interaction such as bars, highway rest areas, and back alleys taken by grown men - not adolescents - only a few decades earlier,  it is clear that the agency provided by the Internet is not only a technological reconstruction of discursive actions but indeed a sociocultural innovation energized by newfound technological prowess. The point is implicit in the case of queer youth but extends to adult members of the queer spectrum as well: the Internet offers greater safety, anonymity, and thereby comfort than the actual world is often able to afford when it comes to activities or even associations that are still stigmatized by many as somehow deviant.
|The Internet, Proprietary Rights, and Freedom of Speech: General Precedents|
If the Internet may be considered as both a platform for communication and an environment replicating situational aspects of the "real" world, how are its properties - which may be considered virtual or "unreal" - divided up and shared? All types of real property are often contested spaces/items due to the high imperative that lucrative properties set for ownership, and in many ways the Internet - especially the WWW - encourages a similarly elevated level of prioritized ownership. The WWW represents nearly every segment of society in some manner, and while distinctions certainly exist between such representations in terms of profile, proliferation, aesthetics, and the publicity involved, the design-oriented needs of communication via the Internet are more easily and economically met than in conventional social arenas. In this way, the Internet champions equality that is not based primarily on financial resources and their correlated agency. The ease of creating websites and other "locations" on the WWW, and the even greater facility for accessing what others have created, has brought about numerous questions of what level of regulation and classification of content is appropriate to the Internet and how it should be instituted. At first glance, regulation issues germane to the Internet may seem highly similar to censorship issues in conventional forums, but important models and criteria may also be found in disputes that concern freedom of speech and real property, as opposed to freedom of the press. This is in great part due to the inescapable paradigm shift away from tangible property and toward intellectual property in cyberlaw debates.
With the Internet - unlike print media - the property in question is principally intellectual (i.e., virtual; the term "intellectual" is applied here in its legal meaning of non-tangible proprietary matter) and need not be made corporeal for the user/consumer to have access. A print publication, on the other hand, has a clearer path of delivery, being published at one location, purchased at another, and perhaps read at yet another. Throughout this passage the print publication is the tangible carrier - the actual book or magazine or newspaper - that serves as the site where the information in question resides. With the Internet, the locus of the information can change far too rapidly for the specific site to actually matter in the final processing (reading or archiving) of the information. Furthermore, such information may not be textual but could be digitized audio recordings, digitized photographs or videos, or other audiovisual materials. These audiovisual recordings can possess the same fidelity as an audio compact disc (CD) or a digital video disc (DVD) and can be integrated in a manner that allows sophisticated interactive options for the web-based user. Furthermore, all manner of digitized information - regardless of whether it was originally textual, visual, auditory, or otherwise - can be rapidly transferred from terminal to terminal and network to network, spanning international boundaries in far less than a second. Technologies for information management that were the exclusive domain of the military less than twenty years ago are now available to any individual with access to the Internet via a home computer. The borderlines where open sharing of certain properties ends and proprietary ownership begins are obscured all the more when the actual technological considerations at hand are contemplated in depth, and this has caused grave concern to those interested in information security and property rights. 
The means and location (i.e., venue) of transaction of certain types of content can, both socially and legally, play as large a role in the regulation of that content - especially when the content in question is highly contested via either moral and/or legal imperatives - as the determination of the exact nature, possible worth, or potential harmfulness of the content so concerned. In example, pornography has conventionally been available in the form of videos and magazines sold primarily in stores specializing in adult entertainment, and has thus been regulated through both legal mechanisms and physical ones (i.e., one must be of a certain age to gain admittance to even examine such materials, and these materials are physically kept in a certain space, so that the laws in effect are not only enforced but further supplemented by a social gate-keeping function). The Internet provides more ready access to porn and other contested materials, and the social pressure for legal regulation is correspondingly more intense. It must be understood that in the American legal system, issues of regulation of so-called "offensive" materials have been considered both in terms of the content of the materials in question and the distribution of such materials, and the laws governing content are different from those that govern publishing and promulgation. In the 1968 case of Ginsberg v. State of New York, the Supreme Court of the United States considered the legality of the arrest of the owner of a luncheonette which sold pornographic (among other) magazines, as a result of the sale of such magazines to a sixteen year-old boy. Here, the debate was not about the determination of the content as pornographic, but whether or not local and state laws prohibiting the sale of such material to minors were in fact concurrent with the First Amendment of the Constitution. The Supreme Court affirmed the New York courts' verdict of guilty, ending the defendant's appellant case, but Ginsberg v. New York would become an important precedent for all manner of First Amendment cases related to pornography - especially where minors were concerned.
The consideration of venue as an essential factor in the determination of freedom rights under United States law has, in a number of different court precedents, proven to be the pivotal decisive factor in the restriction of the Constitutional rights of the individual in comparison to the broader rights of communities. That "venue" has customarily been read as analogous to environment takes on a special significance in that the right to regulate (i.e., jurisdiction) has been in American jurisprudence conventionally decided by aspects of property control, and whether more specific local standards can supersede the rights the Constitution grants to all citizens. In some instances, unique qualifiers of ownership of a locality - e.g., that ownership of a company town allowed the corporation holding that property to impose greater restrictions of freedom of speech than would be allowed in a standard municipality, as was unsuccessfully argued in the historic Marsh v. Alabama case - have suggested that corporate bodies as well as individuals have the right to determine how their property is utilized, although when that property is used by a large portion of the populace, owner-imposed limitations may not deviate radically from the expectations Americans have insofar as freedom is concerned. The concept of community standards has become a criterion in the judgment of whether or not certain content should be viewed as obscene; this is most succinctly expressed in the court's opinion for Memoirs v. Massachusetts, where contrary to many precedents in case law, the court turned away from more general definitions of obscenity (cf. Roth v. United States; Chaplinsky v. New Hampshire) and implied that communities varied in their specific standards of decency.
Thus, consideration of venue - of location of action - usually takes into account both how the venue in question is seen in relation to the comprehensive sociolegal environment, and how the specific venue is itself constituted and disposed (i.e., community standards) toward the potentially offensive content. In theory, it would be possible for someone to object to the misuse of a venue without calling into question the nature of the content; in example, if a shopping mall had a prohibition against the distribution of literature (i.e., flyers) but a person distributed blank flyers with no message whatsoever and was requested to abstain from this action due to its violation of the rule. However, in most cases, even when it is legally or technically a question of the correct use of a venue that is cited as the violation, the root of the complaint is still a matter of content. In the Ginsberg case, despite the assertion that content was not in fact the matter at hand, there is no dispute that if the magazines sold to the underage customer had not been of questionable content, the law would have had no jurisdiction. By extension, the question of venue in a situation such as Ginsberg is representative of how a moral imperative informally brings about the use of legal mechanisms to regulate social behavior (the moral imperative in this example being that minors should not have access to sexually explicit material, so therefore the regulation of the point of access for such material is established and enforced via legal channels). Jacques Derrida's consideration of the epistemological trajectory of how moralistic desires are composed into legal codes notes that as well as being a vehicle for the realization of moral/ethical ideals, the law exists as a dialog between contrasting moralistic opinions. Such a relationship between opposing morals seems to be at the root of most claims of obscenity, though by extension, the functionality of "community standards" as an arbitrator of decency promotes majority opinion over a localized dissenting minority with little hope of the latter finding equitable remedy in the law.
At the core of the difficulty of regulating the Internet is the fact that beyond being property and being an arena for communication and discourse, the Internet is exactly what it sounds like: an expansive assemblage of connected networks, all with their own attributes and functional characteristics. Mostly, these interact in a state of harmony, but objections to how activities transverse the Internet are bound to occur now and then. Some may revolve around situations where one party is offended by the content propagated by another, but here, not only must the nature of the content and the nature of the venue be considered, but also the nature of what constitutes the offending and offended parties. Territorial lines on the Internet are established via legal, commercial, social, and other channels. Internet service providers, for example, may in some instances have the right to limit what types of content their customers place on their systems and also what types of content outside parties introduce to their customers. This point can best be illustrated through the Cyber Promotions, Inc. v. America Online, Inc. case where America Online (an Internet service provider) objected to the solicitation of its customers via e-mail by another service provider, Cyber Promotions. Whether or not the individual customers of America Online who were thus solicited opposed such solicitation was not the point in this case; instead, the claim of America Online was that as the provider of Internet services to these customers it had a corporate prerogative to prevent competitors from soliciting its customers via the services it provided. In this case, the court ruled that Cyber Promotions did not under the First Amendment have the right to send solicitations to America Online customers, and Cyber Promotions was ordered to cease such actions.
The specific rights of the individuals who received the Cyber Promotions solicitations were essentially not within the scope of consideration of this case, by suggestion of the court's ruling. However, the ruling did note that free competition between Internet service providers and the freedom of customers to choose their specific providers indicated that individuals using America Online as their provider had alternative options to obtain the same type of service if they objected to America Online's policies. The legal basis of the court's logic here is that America Online neither restricts for its customers any general freedoms associated with the Internet beyond the gamut of common business reason, nor does America Online duplicate the role of the government in providing essential services commonly provided by the State. The latter point was a crucial issue in the aforementioned Marsh v. Alabama case where it was ruled that a company town - though private property - duplicated the municipal functions/services typically provided by the government and thus was expected to adhere to the same criteria for provision of Constitutionally assured freedoms as any public area (i.e., any town) under governmental administration. The Cyber Promotions ruling demonstrates that thus far the American legal system has viewed the Internet as a novel territorial domain with unique characteristics, but one where conventionally established conditions and privileges of private enterprise still apply.
It should be stressed that the Cyber Promotions decision is a reiteration of the classic American view of the right to free enterprise and the autonomy of independent business entities. Courts have usually only granted regulatory and law enforcement agencies the discretion to intervene in privately-held mass media when such intervention appears to best benefit the public - the end users of such media (cf. Red Lion Broadcasting Co. v. FCC; FCC v. Pacifica Foundation). Other nations which do not have a strong counterpart to the First Amendment of the U.S. Constitution, and where sociolegal values have conceptualized the idea of public good differently from the American paradigm, have been less sympathetic to free enterprise on the Internet. A prime example of this is the recent UEJF and Licra v. Yahoo! Inc. and Yahoo France case in France, where the Tribunal de Grande Instance de Paris ruled that Yahoo! - an Internet service provider that holds Internet-based auctions - could not allow users to auction Nazi objects to bidders accessing the Internet from French territory, as the sale of Nazi artifacts is prohibited by French law. Yahoo!, the court declared, could either ban all such auctions of Nazi objects from its service domain or could otherwise prevent French users from accessing these auctions. Either way, the French ruling in effect banned a portion of Internet content from French soil and proposed measures to enforce such a ban, both in terms of technological and punitive intervention. The French decision is, of course, reflective of much more than just differences in jurisprudence between the United States and France, as the psychoemotional impact of Nazism on France was, in the first place, the motivation for laws that would prevent the celebration of Nazi ideals in post-World War II France. However, the greatest value of the French ruling to future cyberlaw cases will probably be found in the use of a local court and national law to make determinations with international impact on free speech and free trade.
Precedents in freedom of speech and other freedoms associated with individual rights under American jurisprudence are found in various types of cases outside of those rulings directly concerning the Internet, and as we have seen, the theoretical and practical basis of law in relation to cyberspace has relied heavily on the consideration of such freedoms, both in regard to communication and in regard to access/control of property. It is essential to note that recent cases have established some specific criteria for applying legal interpretations from other forums to cyberlaw. In example, a 1997 U.S. Circuit Court decision ruled that obscene or threatening messages sent using e-mail or other Internet-based direct communications technology must show a distinct and explicit intent to do harm to a specific person to be considered as criminally threatening, applying a slightly more rigid definition than was previously expressed in situations outside of the Internet (cf. R.A.V. v. City of St. Paul). Specific legislation has also been passed at the Federal level to furnish law enforcement agencies with greater legal provisions to police the Internet, most notably via the controversial Communications Assistance and Law Enforcement Act of 1994, which grants the Federal Bureau of Investigation (FBI) and other agencies special mechanisms for monitoring the Internet. This law has been challenged by public interest groups such as the Center for Democracy and Technology (CDT), which claims that it violates freedom of speech and freedom of privacy rights. Additionally, U.S. Federal agencies as diverse as the Federal Reserve Bank and the Internal Revenue Service (IRS) have taken measures to ensure that detailed financial data derivative of Internet-based transactions can be tracked and accounted for, citing the reasoning that the new areas of commerce enabled by the Internet have presented novel opportunities for abuse and fraud, and that such opportunities must be countered with new law enforcement tactics. These actions indicate the proactive involvement of Federal regulatory authorities in producing and promoting legislation, as well as the responsive involvement of the courts in interpreting pre-existing laws to apply to Internet-related concerns.
|Precedents in Practice and Theory of Privacy and Personal Freedoms for Queers|
The first section of this paper has examined the legal precedents and bases for the regulation of privacy and correlated personal freedoms on the Internet; before delving into how such precepts have been and may be applied to specific cases of queer interest, it is advantageous to examine some basic legal constructs involving homosexuality. Over the past three decades, American law at all levels has gradually moved away from the sociolegal perspective of criminalizing homosexuality and homosexual acts as deviant, and toward not only greater tolerance of homosexuality but also the enactment of legal provisions to ensure equity and fair treatment. However, such encouraging trends in legislation and jurisprudence have not been uniform at any level, and many laws that have been applied in civil court forums to arbitrate instances where queers have suffered unequal or negative treatment were laws established for other purposes that have been read (either favorably or otherwise) to discern what protections they may afford queers on the basis of discrimination due to sexual orientation. 
In regard to broad privacy rights and homosexuality as a qualifying aspect thereof, the landmark cases have been Bowers v. Hardwick and Oncale v. Sundowner Offshore Servs., Inc. In Bowers v. Hardwick a gay man in Georgia was arrested under that state's sodomy laws for performing oral sex on another man in his home. The U.S. Supreme Court ruled that his arrest did not violate a fundamental personal liberty, and that the Georgia law and its application in this case was thus not in violation of the due process clause of the Fourteenth Amendment. In Oncale v. Sundowner, a man employed by Sundowner Offshore Services to work on an offshore drilling rig with eight other men sued that company for sexual harassment received from his co-workers, bringing about his suit under the Civil Rights Act of 1964 which, among other forms of discrimination in the workplace, prohibits discrimination and harassment based on sex. The Supreme Court in this case overturned an earlier appellate decision rendered by a Circuit Court that favored the defense, and ruled that the 1964 law could be read to imply that same-sex discrimination was, alongside discrimination between men and women, forbidden under Federal law. When these two cases are examined together - despite the considerable differences in their etiology and circumstances - it is noteworthy that the U.S. Supreme Court has in essence provided that state-level law may regulate sexual behavior between consenting adults in a private domicile but alas, protection against harassment is granted for all irrespective of sexual orientation or gender. This summary can be further extrapolated to mean that homosexual contact between adults is forbidden, whether such contact is consensual and welcome or whether it is unwelcome. In a similar vein, the legal scholar and philosopher Martha C. Nussbaum remarks in her consideration of Greek philosophical ideals and contemporary debates about queer rights that much American law that directly affects homosexuality in one way or another addresses the legality of given acts, and not the legal and human rights of individuals.
The sociopolitical ramifications of Acquired Immunodeficiency Syndrome (AIDS) have greatly impacted the visibility of homosexuality, especially in relation to gay males, and have provided new challenges for legal - as well as social - theory. As the scholar of mass media Paula Treichler notes, AIDS has become the most political disease that modern society has known, and new technologies of the modern world have interacted with the social construction of AIDS in a variety of ways. The need for AIDS-related sexual education and prevention efforts has at various stages been tempered by conflicting moralistic opinions on the disease and on sexual behavior; the effects of such moral conflicts have been wide-ranging, from the philosophical level of conceptualizing the disease's sociolinguistic definitions to the pragmatic level of providing the most effective prevention mechanisms to the entire population.  Gay men were concurrently approached with prevention and education messages by a somewhat reluctant and often homophobic public health initiative on the part of the American government, and through grass-roots efforts established by fellow gay men and sympathetic friends. This scenario, coupled with the sociolegal impediments to presenting controversial sex education materials using governmental funds, led to delays in accurate information reaching those who needed it most, but also fostered greater solidarity within the gay male community on a national and international level. More recently, some of that solidarity has been lost as confusion and contempt have arisen among young gay men who believe that AIDS will either become curable via biomedical advances, or conversely, who take a generally fatalistic view of sex in the age of AIDS. Legal approaches, and the pragmatism involved in such approaches to dealing with AIDS as a societal problem stretching far beyond the disease's medical parameters, have closely followed developments in social thinking as well as in scientific knowledge and will probably continue to do so.
By happenstance, the U.S. military began dealing with the issue of open homosexuality in the armed forces and that of AIDS in military populations around the same time. This situation led to an elevated focus on broad issues affecting queers in the military and in government service in general, with many such issues being sociolegal in nature. The capacity for military and public health medical informatics systems to archive and transmit detailed health records, the imperative to do so for the sake of ensuring a healthy military population, and the dangers of such a system being abused and medical confidentiality betrayed provoked interest among military health professionals and judge advocates (military lawyers) alike, but the situation was never completely resolved. The military, where basic freedoms are reduced in some ways from those American civilians enjoy, has perhaps the greatest legal questions to answer regarding homosexuality and privacy, but has been slow to reach any accord on these matters. Another kind of use (or abuse?) of personal information about a member of the armed forces may be found in the application of data about personal use of and membership in Internet-based queer groups and associations to establish that the said service member is homosexual, as was the case in High Tech Gays v. Defense Indus. Sec. Clearance Office, where mere membership in an Internet-oriented gay group became the impetus for official investigation into a soldier's sexuality and sexual activities.
Legislation proposed and/or enacted specifically to either grant queers more equity, or to prevent the granting of such equity on the grounds that no minority requires special treatment under the law, has created another category of legal theory affecting queer populations. Initiatives that propose the legal security of basic human rights appear noble but are often contested, as they bring us to question exactly what equality in modern society entails, and what efforts to provide minorities with the freedoms and comforts enjoyed by the majority are legitimate. The State of Colorado's now well-known Amendment II is the pre-eminent example of a legislative measure designed to prevent queers from achieving social equity via legal channels; this bill (passed by referendum and a majority vote in 1992) was a direct response to municipal legislation in several of Colorado's main cities to provide queers with minority status. Colorado Amendment II was contested at the State District and State Supreme Court levels by plaintiffs who believed it not only to be unfair in its bias against homosexuality, but also unconstitutional. The injunctions granted by these courts were reviewed by the U.S. Supreme Court in 1996 and the Amendment was in fact declared unconstitutional, though with different reasoning than that argued in the State courts (for a detailed discussion of this, see Nussbaum's treatment thereof).
The social dimensions of such issues as AIDS, sexual orientation, same-sex marriage, and anti-discrimination have motivated legal discourse in many diverse ways, but usually with queers launching novel legal arguments on the basis of gender equity and minority rights/equal protection arguments brought forth by the civil rights and women's rights movements. The aforementioned Oncale case is representative of how extant legislation designed primarily to protect women has been employed to prevent the same-sex harassment, and shows that despite having its roots in feminism, the concept of sexuality as a social construct has played a pivotal role in the determination of freedom, and is crucial to sociolegal advancement of queer populations. The premises established by the lawyer and legal scholar Catharine A. MacKinnon - in summary, that all citizens are entitled to freedom from any form of sex/gender-based discrimination and that the male-centered perspective of governance must change to truly allow for such freedom  - provide the starting point for a broad theoretical overview of how queers, like women, are subordinated by a heterosexual male-dominated social structure and of what can be done to remedy this situation. MacKinnon argues that feminist objectives are not necessarily counterproductive to the standing goals of many social and legal institutions (she uses the United States as her primary point of reference here) but that feminism cannot be mitigated or reduced to the inclusion of a few scant changes to extant hierarchies, and must instead be applied in a way that will produce lasting changes to benefit all the population - especially those who are marginalized due to sex and gender issues. MacKinnon has, as a practicing attorney, applied her theoretical premises to the writing and interpreting of legislation that aims to decrease gender bias by reducing the ways in which such bias may be manifest, with the predominant examples in her work being the control of pornography and of hate speech that is damaging to women.  Much of what MacKinnon has theorized in regard to women's rights and the oppression of women in American society can be successfully extended to apply to queers. However, MacKinnon's view that pornography should be subject to much greater governmental control - as she sees pornography as damaging to women - can be construed as counterproductive to freedom of speech and as we shall see, freedom of speech may in fact be the greatest means of social furtherance queers can hope to achieve via the Internet.
|Queer Manifestations on the Internet and Sociolegal Constraints|
The importance of the Internet as an enabling environment for queer discourse, as a means for communication between various parties on topics relevant to queer life that cannot perhaps be so readily discussed in other venues, and as a locus of interaction between a multitude of subcultures, including queer subcultures, cannot be denied. How can lasting security of such an enabling, free environment be assured? The Electronic Communications Privacy Act of 1994 was one of the first measures at the Federal legislative level to establish premises for the free and secure use of the Internet and related technologies in the United States, but this legislation was enacted as an augmented part of the Communications Assistance and Law Enforcement Act, which many claim impedes, rather than furthers, free speech on the Internet. The seemingly contradictory combination of these laws is quite telling of the insecurity about the Internet in the U.S. Congress in the early 1990s. The Communications Decency Act of 1996, which formed Title V of the Telecommunications Act of 1996, would become the first substantial American Federal legislation to regulate content - as opposed to security and privacy - on the Internet, establishing standards for such content using the criteria set forth in Miller v. California, as well as additional precedents for the discernment of what content could be deemed obscene. The Communications Decency Act (hereafter CDA) was challenged by the American Civil Liberties Union (ACLU) and other concerned amici curiae plaintiffs as unconstitutional, in violation of First Amendment rights as well as discordant with previous court rulings on the application of such rights to mass media concerns. This action resulted in the ACLU v. Reno and American Libraries Ass'n. v. U.S. Department of Justice cases that would eventually end in the repeal of the CDA and necessitate alternate legislative actions to provide for the protection of minors from supposedly indecent content on the Internet.
The ACLU v. Reno case concerned a wide gamut of Internet sites that could be construed as indecent under the CDA, but queer material formed a considerable portion of the content. More significantly, queer content was found strategically useful in the ACLU's argument representing sexually graphic textual and visual content - including erotic literature and sex education materials as well as pornography - as not "obscene" nor appropriate to be limited under the parameters instituted in the Ginsberg and Miller cases. Federal obscenity laws had already been applied in a case involving interstate trafficking of pornography via the Internet, U.S. v. Thomas, and were through this and other precedents gaining credence in their application to questions of the legality of interstate commerce involving "obscene" content, despite precedents that did not entail Internet-based transactions (but which involved other telecommunications media) not favoring such applications of obscenity law (cf. U.S. v. Carlin Communications, Inc.). Crucial in the reading of law in Thomas was the precedent of U.S. v. Gilboe, where a Circuit Court decided that committing an act otherwise defined by law as criminal via electronic mechanisms which reduced the corporeal circumstances that would normally be required to circumscribe that act as a crime would not waive the criminality of the act, per se, but would only require that the court viewed the criminality in question through the lens of comparison with established (i.e., normative) concepts of criminality in similar cases, whilst taking the unique attributes of electronic communication into due account. The ACLU and other plaintiffs wisely used the First Amendment as their primary qualifier in challenging the CDA and thus avoided the problems inherent in these previous court decisions on obscenity involving criminal charges. Criminal cases from Ginsberg to Thomas had established that courts usually favored community standards of decency and the preservation of the power of extant laws over commenting on the role of the First Amendment in absolving defendants of their actions. Additionally, unlike these precedents, the ACLU made certain that content did become a central factor in ACLU v. Reno.
Ultimately, the U.S. Supreme Court ruled that the CDA was unconstitutional and ordered the injunction and removal of the code from the Telecommunications Act of 1996. Its proponents responded with the creation of the Child Online Protection Act (hereafter COPA) which would be inserted into the Telecommunications Act of 1996 as Title XIV. The ACLU again sued Janet Reno in her capacity as the U.S. Attorney General in a Commonwealth of Pennsylvania District Court and was issued in November of 1998 with a temporary order to suspend all enforcement of COPA; in this case the ACLU cited the previous Supreme Court ruling and claimed that COPA essentially duplicated the aspects of the CDA found to be unconstitutional and should therefore - like its predecessor - be found an unfit law. However, subsequent court decisions found COPA not to duplicate the CDA insofar as its stated objective was to limit the type of content available to minors via the Internet and not - as was the case with the CDA - to delimit what content was available to all citizens. The Congressional Finding for COPA clearly states that:
This is a claim not included in the wording of the CDA, yet a claim that reiterates case law findings going back as far as Ginsberg.
While the CDA was being debated and shortly thereafter, some states took their own legislative measures to provide for regulation of Internet content. The most representative example in terms of its effect on queer content was the passage of State Bill 127 (hereafter SB-127) in New Mexico, also known as the New Mexico Net Censorship Act or the New Mexico Online Censorship Law. The ACLU and fellow amici curiae plaintiffs filed suit in New Mexico, claiming that SB-127 not only duplicated many of the unconstitutional aspects of the CDA but also, as a state-level instead of Federal law, placed unfair interstate commerce and jurisdictional restrictions on Internet content that originated outside New Mexico. Several of the amici curiae plaintiffs were in fact webmasters and organizations from outside New Mexico hosting content which under SB-127's definitions would be considered illegal. The plaintiffs cited as a definitive precedent the American Libraries Ass'n v. Pataki ruling where a New York state law regulating Internet content was found by a court of that state to violate Federal jurisdictions insomuch as when imposed on the Internet, state jurisdiction could not be limited geographically to New York due to the extraterritorial reach of the Internet; if a site located outside of New York provided material in violation of New York code, such a site could not reasonably fall under New York's jurisdiction as it would involve additional jurisdictions and yet there would be no pragmatic mechanism for preventing access to the site from computers in New York. The New Mexico court ruled that, as in the New York case, the state-level law was unconstitutional in its excess of jurisdiction and repealed it from the corpus of New Mexico code; the question of violation of First Amendment freedoms was not directly addressed but can be presumed to have influenced the decision.
The breadth of content on the Internet as well as the manner in which one accesses it has poised novel consideration of whether or not any regulation should be provided via legislation for this medium. In American Booksellers Ass'n v. Webb, it was found that the merits of a work of art, literature, journalism, or other communication could well be claimed to have value to a portion of the general population - including minors as well as adults, a notable paradigm shift from earlier case law such as Ginsberg that did not consider the needs of minors as separate from those of adults - and therefore be deserving of legal protection for the entire population. This ruling and the ACLU v. Johnson case both indicate that the need for some citizens to have access to certain materials or texts that other citizens may find offensive creates an imperative for access to Internet resources not to be obstructed. At stake in ACLU v. Johnson - among other issues - was the ability of queer youth to access sites pertaining to medical, social, and psychological concerns relevant to homosexuality. Specifically, a California-based site offering the advice of a physician specializing in the prevention and treatment of AIDS in adolescent populations and a clinical psychologist specializing in queer youth-oriented problems was one of the plaintiffs in the suit against New Mexico, as this site contained graphic sexual language discussing the medical and psychoemotional concerns addressed and would be therefore affected by SB-127.
The American Booksellers Ass'n v. Webb ruling provided the legal basis for the type of professional advice detailed above not to be subject to a law such as SB-127 (even if the law was found otherwise valid) insofar as a definite and imperative need can be reasonably claimed to exist on the part of queer youth to have access to advice on health and social issues. Several scientific studies support this claim,    as do field experiences reported as longitudinal and ecological studies of the epidemiology of such disease-states as AIDS, suicide, homelessness, and depression in relation to the ability of queer youth to access educational and interventional sources.    As the pediatrician and expert on queer youth medical problems, Gary Remafedi, stated over ten years ago, queer youth require alternative sources of confidential and accurate health information to those which can be expected from standard public school sex education curricula; it can be postulated that the Internet provides as many or more school-aged queers with safer sex information than do school-based resources. The findings of a 1997 survey of queer youth using the Internet would support this theory, as would the evaluations of leading AIDS prevention researcher Thomas J. Coates, who published a review article on AIDS and adolescents in the same year. Epidemiological as well as social reviews of successful interventional strategies to curtail the spread of AIDS among gay men indicate that if intensive education and prevention efforts that have worked on localized levels could, via the Internet, be offered to a wider geographical area, these efforts would have similarly successful results. Clearly, to in any way impede efforts to utilize the Internet as a modality to inform and improve the lives of queer youth would be an act of malfeasance.
The American court decisions reviewed herein would suggest that public majority approval of content (as if such is even realistically possible) is not a worthwhile criterion and that the premise of freedom of speech is inclusive of the rights of each individual to freely state his/her ideas and freely access the statements of others; in many historic cases of print censorship (most of these are cited in the Ginsberg ruling) that have been used as precedents in contemporary arguments, the criterion was that a work had to possess significant artistic, educational, scientific, or other social value to the general population, and specialized interests were not really taken into account. An even more recent case than American Booksellers Ass'n v. Webb indicates that while a court should not arbitrate the content of the Internet, per se, it may allow institutions - including public ones - to set standards regarding content in relation to localized user access. In Mainstream Loudoun v. Board of Trustees a Commonwealth of Virginia District Court considered the case of adult access to materials possibly considered offensive in public libraries, and while ruling against any legal action of censorship, the libraries' own prerogative for in-house regulation of such materials was upheld, and was in fact the judge's recommended solution. Allowing libraries the privilege and duty of controlling access to questionable material appears not only sagacious, but also probably the most pragmatic solution. These court rulings indicate that while legislative attempts to govern the Internet are often blocked by both theoretical and realistic obstacles in jurisprudence, courts will interpret laws in favor of localized control of access to - and presumably, the creation of - materials that may be potentially offensive.
It may be postulated that the arguments typically employed in defense of visual artwork that might be targeted for censorship would not apply to pornographic websites, although arguments of freedom of speech and all associated freedoms of expression would certainly still apply. Case law interpretations over the past two decades indicate that the sanctions of First Amendment-granted freedom of speech may be interpreted extremely liberally. In example, a California appellate court granted a writ in support of an appellant's claim that California law was unconstitutional in regard to Freedom of Speech insofar as it concerned her use of the telephone to place harassing calls to her ex-boyfriend; in this case the appellant successfully claimed under habeas corpus that such disturbing calls were protected by the First Amendment. This case can be seen as an exceptional - even drastic - interpretation of the First Amendment, but the fact that this ruling was made at the appellate level in as high-profile a state as California sends out an unequivocal message about the importance of the First Amendment in determining the validity of actions that could be considered criminal. When aspects of the transterritorial reach of the Internet are factored into the equation of freedom of speech, and criminal liability is removed or at least reduced, it is difficult to argue that laws should be sweeping and uniform in their regulatory function over Internet content.
This paper has for the most part examined pragmatic issues related to queer presences on the Internet and interactions with the law - reiterating the attitude towards cyberspace and the law taken by many commentators  - but the more philosophical questions of queer identities, the law and the Internet deserve consideration. The legal theorist Elena Loizidou has established an interesting paradigm of what it means to be queer in relation to the law, viewing the law as a social representation of heteronormativity via administrative and linguistic mechanisms - "heteronormativity" meaning to Loizidou the social structures that make heterosexuality accepted as the default sexual standard. Loizidou claims that queer social practices (e.g., queer slang, queer art, queer comedy) not only establish a greater presence of homosexuality in society but also rewrite the sociocultural scripting of how we view sexuality in relation to the binary difference of gender. Drawing on theories of the feminist historian of the life sciences, Donna Haraway,  Loizidou sees the concept of sexuality as being separated from gender via techno-communicative processes such as those the Internet facilitates. That is, Loizidou suggests that sexuality is functional and is determined in contemporary society by mechanisms of communication and that many such mechanisms are enabled via technological means. The Internet merges most of these technologies into a broad environment and thus allows a wide spectrum of options in terms of how personal sexuated and gender-oriented relations may be constructed. The law, according to Loizidou, can at its best provide the structural sustenance to allow for arbitration of differences, but should not automatically be assumed to do the arbitrational work itself as law is not an arena or forum, per se, but instead the formal agency for addressing differences in a variety of standardized forums. The sciences and social and literary history have been used in a variety of guises to provide informal standards of mediation between opposing views of engendered differences, and therefore what Loizidou desires is the use of the law - much like science and history - as a lens to focus our attention on certain scenarios and to assist us in our development and resolution of those situations. This perspective seems to echo the feminist philosopher and writer Hélène Cixous's concept of écriture féminine, of the writing of gender, and of imparting the personal to society through representing bodily, anthropocentric characteristics in written language. It may be said that the law is the paramount example of this: the writing of human mores and desires into a tangible corpus of words that can further guide societal development. It may be added that the Internet provides a similar discursive forum and, as Loizidou notes, the world of cyberspace should be an open arena for all who come to it - queers included.
The democratization of the Internet did transpire at what may be termed a grass-roots level: individuals with a high technological affinity were adapting the previously governmental and military Internet to public needs in their own fashion prior to the inception of large corporations on the Internet. Many international corporations (e.g., IBM, A.P. Møller/Mærsk, General Electric) began by using the Internet for communicative and data-retrieval purposes, but not until middle of the 1990s did they start taking advantage of the WWW's possibilities for mass communication with the general public. If the Internet had evolved with more corporate and governmental intervention, it may be assumed that its politicization would have taken on a different tenor entirely. However, the fringe elements of the Internet had long been in place by the time the potential of the medium was generally recognized. Whether or not the early pioneers of the pre-WWW Internet were queer or not is a moot point: many of these individuals were somehow outside mainstream society in their views and employment of the Internet. Hackers and others, who were not necessarily working on any official Internet development projects, nonetheless provided much of the groundwork for non-establishment yearnings to be realized as the Internet developed technologically. It can also be postulated that the right political climes - especially in the States and the United Kingdom - existed for the evolutionary trajectory the Internet took. During the conservative years of the Reagan/Bush and Thatcher administrations, discourse on the Internet was still "below the radar", while as the Internet evolved as a public forum and commodity in the more liberal 1990s, changing social attitudes provided for more open expression of identities via the new medium. The possibility of the Internet becoming a social fixture so pervasive that computer screens displaying web browsers would be common in advertisements for everything from pasta to cosmetics - nearly as common as televisions, as bedrooms - was an unseen future during most of the developmental phase of the Internet, yet this has become the reality. Notwithstanding the breadth of today's Internet, its origins and original promises of serving as a haven for non-traditional ideas should be remembered and preserved.
The availability and agency of the Internet for queers and other minorities has clearly been contested, often proactively and via mechanisms designed to not only curtail but censure outright queer manifestations of Internet usage. While the fact that some groups and individuals would oppose any and all queer presences on the Internet is not surprising, an interesting aspect of such opposition is that most of it has manifested itself either through legal channels or through the same type of grassroots activism that typifies sociopolitical action by both arch-conservative and arch-liberal groups. That is to say, the battles for the Internet are often not fought on the Internet. Certainly, conventional means of activism such as petitions and boycotts have been modified and adapted to capitalize on the communicative and publicity-generating powers of the Internet, but here a duplicity of technique seems to exist, rather than a novel conception of any sort. Both pro-queer and anti-queer groups utilize many of the same tactics on and off the Internet to spread their messages and further their agendas.
Queer presences on the Internet are diverse, both in their etiology and outcomes, but nearly all - even commercial ventures such as pay-per-use BBS systems and gay porn sites - have grown out of the desire of their creators to foster queer identities and provide like-minded queer populations with resources. These manifestations have proceeded with little direct impact on other facets of Internet development, at least in a way that such impact could be felt by parties involved in the construction of other thematic types of Internet content. Such a situation reveals the fact that queer populations have not utilized legal mechanisms, either extant or new-found, to lay claim to the Internet as their own. Despite this, the primary threats to queer agency on the Internet have thus far come through legal channels and have been arbitrated through the same. This issue has not been addressed in depth in the academic literature on queer theory, and the lack of discussion of these juridical concerns by commentators interested in the social agency found on the Internet by queers is surprising and somewhat disturbing.  The Internet is an aggregate concept and thus demands a composite approach in terms of how sociolegal responses are formulated in relation to Internet-based activities. It is worthwhile noting that the conventional news media have often been restricted in terms of censure of action/reaction through legal channels which were ill-suited for determining the presence of beneficence, maleficence, or nonmaleficence. The idea that the news media require a sociolegal conceptualization of an environment unique to their specialized parameters may be extended to the Internet, with some important modifications. The popularly-held (or at least popularly touted) ideal of the Internet as a queer utopia where long-taboo fantasies can finally be realized without fear of reprisal cannot hold any ground without the concurrent construction of a legally-supported social atmosphere friendly to queer manifestations.
In her analysis of the application of femininity to legal discourse, the legal theorist Drucilla Cornell cites a journal entry by Emily Brontë, where the latter yearns for a "doubly-prized world" far superior to the present corporeal one; Cornell examines the efforts of Catharine MacKinnon and others to construct sociolegal principles to bring our current world closer to that world "doubly-prized". There can be little doubt that for Brontë, the "doubly-prized world" was Heaven. For Cornell, as for MacKinnon before her, there is the possibility of legal reform that would allow reality to become closer to utopia, at least in regard to more positive consideration of gender and sexual differences. For queers, the Internet can be at least the first few fields and forests of that world "doubly-prized", but as Cornell cautions us, the enactment of any formulation of a better place requires an exhaustive understanding of how extant institutions and powers will influence that new environment. What is more, the agency ascribed to the new environment to foster its own standards of conduct and its own means of discursive realization must not be arbitrary but should be grounded in a comparative knowledge of where precedents can be usefully applied, and where truly novel standards and actions are necessary. Diverse legal precedents and the social concerns that motivated and mitigated them now inform the ways in which issues germane to censorship, freedom of speech, privacy rights, and interstate commerce are viewed in conjunction with the still-developing Internet. Queer populations are in a unique position - being quite visible on the Internet and being a non-ethnically defined minority further composed of many socioethnic demographies. Sage foresight and vigilance are requisite if queer populations - and all users of the Internet - are to continue to enjoy a free environment facilitative of our needs and desires.
 The author thanks the following for comments and support on this manuscript: Adam Fair, Ryan Swanson, Chris Connelly, Megan Masana, Ben Campbell, Jason Bolton, Patricia Perrone, and Derek Elmer.
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