Hi all,
There is one important legal aspect which the operator of the Cypherpunks mailing list has opened themselves up for with this action. In short they have now opened themselves up for defamation and liable suites by imposing an editorial policy on the contents of this list (1).
First of all I support John's decision. However, these types of actions make it difficult to further any common carrier legal development. As most on the list will agree, we would like certain content freedom on the Net. When the SPA discussed thier contributory infringement we all cringed (especially those running small ISPs). My point is that this decision should be based upon anything but content. Arguments can be made that the Dr. "asked" to be removed by techincal means. Arguments can be made that the Doctor abused remailers (assuming a writing analysis can identify him and that "abused" has any definition 8-). Saying that the Doctor was decreasing the S/N ratio IS content based restriction. It DOES open up the door.
This opens up the potential, for example, for Tim May to sue the operator of the Cypherpunks mailing list now for posts from users (even anonymous ones) which defame or otherwise liable his character, reputation, or ability to pursue income in his chosen field. In short the operators of the list becomes publishers and distributors of the material. It is the legal difference between a bookstore and a book publisher.
While I wish he was wrong, I have to agree.
Censorship is censorship, irrespective of the source of the limitation. Free expression is impossible in an environment of censorship. The right to speak not only implies a right to not speak, it also implies the right to emit complete mumbo jumbo. The actual content of the speech is irrelevant.
That is not completely true in the USA. Content can and is restrained. You cant yell "FIRE" in a crowded theatre. Commercial speech is restrained. And, yes, sexually explicit language used on a jobsite is effectively restrained (I am a discrimination lawyer, believe me, it is).
I have argued in the past that this list is a defacto public list because of the way it is advertised and to the extent it is advertised. All the protests by the operator to the contrary will not convince a court.
All of the "advertisements" and their "extent" are totally irrelevant. John does not advertise. Members might. So what? Am I to understand that if I get enough people to tell others that my favorite privately held company is really a public one that I can then have a court force them to make an IPO? It is private, it is controlled by John, not the government (unless that white van outside his house is actually filtering his packets 8-).
Hope you folks have a good lawyer.
Very happy to volunteer my services.
(1) ;login:, Oct. 1996, V21N5, pp. 27
Jim Choate
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