[**] Dean and Professor of Law, West Virginia University College of Law.

[1] C.T. Mien. "Steps Taken in Other Countries to Regulate the Internet," The Straits Times (Singapore), March 9, 1996, p. 35. In Austria, a broad study on the subject of regulating the information infrastructure was commissioned by the Federal government. Ursula Maier-Rabler, Viktor Mayer-Schönberger, Gabriele Schmölzer, Georg Nening-Schöfbänker. Net Without Qualities. 1995, http://www.komdat.sbg.ac.at/nikt. For the restricting effect on speech through a European Union Directive on Data Protection, see Stewart Baker. "The Net Escape? Ha!," Wired, Sept., 1995, p. 125. In the United States, the Communication Decency Act of 1996, outlaws distribution over the internet of material from child pornography to profanity. 47 U.S.C. ' 609 et seq. (1996).

[2] See THOMAS L. PANGLE, THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN FOUNDERS AND THE PHILOSOPHY OF LOCKE (1988); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 59-65, 147-74 (1982); J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975); Symposium, The Republican Civic Tradition, 97 YALE L.J. 1493 (1988).

[3] Howard Rheingold. "Why Censoring Cyberspace Is Futile," Computer Underground Digest 6.40 (1995).

[4] The debate concerning the prudence and legitimacy of content-based speech regulation is beyond the scope of this paper. For an analysis of the contention that some forms of speech are so horrifying and potentially destructive that they can be regulated, and a proposal for the nature and structure of that regulation, see Viktor Mayer-Schönberger and Teree E. Foster, More Speech, Less Noise: Amplifying Content-Based Speech Regulations Through Binding International Law, 18 B.C. INT'L & COMP. L. REV. 59 (1995).

[5] Donald E. Lively, The Information Superhighway: A First Amendment Roadmap, 35 B.C.L. Rev. 1067 (1994); Note, The Message Is the Medium: The First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062 (1994).

[6] See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Texas v. Johnson, 491 U.S. 397 (1989); Cohen v. California, 403 U.S. 15 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Yates v. United States, 354 U.S. 298 (1957).

[7] Ulrich Sieber. "Strafrechtliche Verantwortlichkeit fhr den Datenverkehr in Internationalen Computernetzen," Juristenzeitung 1996:429-42; Sunday Times v. United Kingdom, 2 E.H.R.R. 245 (1979). More recently in England, a physics lecturer and a nuclear physicist brought separate actions against former colleagues, each alleging that defamatory remarks about his professional competence had been disseminated on Usenet. "Electronic War of Words in Cyberspace Is Heading for Very Real Confrontation in a UK Courtroom," The Financial Times, August 13, 1994, at 24.

[8]Mitch Betts & Gary H. Anthes, On-Line Boundaries Unclear: Internet Tramples Legal Jurisdictions, COMPUTERWORLD, June 5, 1995, at 1, 16.

[9] "Lee Kuan Says Yes to Internet, No to Sex and Violence on TV," Agence France Presse, Oct. 6, 1995. C.T. Mien, 1996, p. 35.

[10] Faiza S. Ambah, An Intruder in the Kingdom, BUS. WEEK, Aug. 21, 1995, at 40; Carole Bogert, Chat Rooms and Chadors, NEWSWEEK, Aug. 21, 1995, at 36.

[11] "Censorship Issues on the Internet Continue to Confuse Governments," New Media Age, January 12, 1996, p. 5; "Sex on the Internet," The Economist, January 6, 1996, p. 18, where the author inquires, "[w]hen Bavaria wrinkles its nose, must the whole world catch a cold?" See generally Ulrich Sieber, Strafrechtliche Verantwortlichkeit fuer den Datenverkehr in internationalen Computernetzen, JZ 429 (1996), <http://www.jura.uni-wuerzburg.de/lst/sieber/stvipdt/svi01.htm>.

[12] "Scotland and Italy Crack Down on Anarchy Files," http://www.eff.org/pub/Legal/Cases/ BITS-A-t-E_Spunk/eff-raids.article. Adrian Levy and Ian Burrell. "Anarchists Use Computer Highway for Subversion," British Sunday Times, March 5, 1995 (England and Scotland); http://www.eff.org/pub/Legal Cases/BITS-A-t-E_ Spunk/bits_seizure.article (Italy); "Cyber Notes," The Christian Science Monitor, Sept. 21, 1995, p. 11.

[13] The Lüth Case, Judgment of Jan. 15, 1958, Federal Constitutional Court, 7 BVerfGE 198, translated in Donald P. Kommers. The Constitutional Jurisprudence of the Federal Republic of Germany. (Durham, N.C.: Duke University Press), 1989, p. 370.

[14] Grundgesetz {German Basic Law} Article 1.

[15] Outlawed are writings that "incite to race hatred or which describe cruel or other inhuman acts of violence against human beings in a manner expressing glorification or intentional minimization of such acts of violence or demonstrating the cruel or inhuman acts in a manner injuring human dignity . . . ." Strafgesetzbuch {German Penal Code} {StGB} '' 130, 131.

[16] In December, 1992, the German government banned the sale and distribution of neo-Nazi rock music advocating violence and death to foreigners to youths under the age of eighteen. By this measure the German government sought to staunch the precipitous rise of right-wing violence. Strafgesetzbuch {Penal Code} {StGB} '' 194, 86, 86a. "Recent Developments," Harvard International Law Journal 34:563 (1993).

[17] German Research and Technology Minister Juergen Ruettgers stated affirmed that Bonn respected free speech, but declared that the German government must do more to regulate the Internet. He stated that "[w]e cannot tolerate a situation in which anything goes" and suggested that the Group of Seven leading industrial countries take up the issue. "America Online Faces Probe over Alleged Nazi Material on Internet," The Jerusalem Post, Feb. 4, 1996, p. 2; "CompuServe Still Blocks Access to Internet," The Reuter European Community Report, Feb. 16, 1996. W. Boston. "Germans' Internet Crackdown A Sign of the Future," Reuters, Feb.4, 1996. Sieber, 1966, p. 429-42.

[18] Verbotsgesetz {Austrian Prohibition Act} ' 3.

[19] Burkhard Schröder. Neonazis und Computernetze. (Reinbek: Rowohlt), 1995, p. 41.

[20] Criminal Code, R.S.C. 1985, ch. C46 ' 319(2). See R. v. Keegstra, [1990] 3 S.C.R. 697 (Can.), wherein the statute was upheld in a case involving a teacher charged with willful promotion of hatred against an identifiable group for promoting anti-Semitism to his students and penalizing the grades of those who did not respond favorably to his ranting. See also R. v. Andrews, [1990] 3 S.C.R. 870 (Can.).See generally, Michel Racicot, Mark S. Hayes, Alec R. Szibbo, Pierre Trudel, The Cyberspace is Not a 'No Law Land', Industry Canada (1997).

[21] S.C. 1976-77, ch. 33, ' 13(1). This statute was upheld in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 Can.). It is not yet clear whether these provisions apply to electronic communications.

[22] See generally A. Michael Froomkin, Anonymity and Its Enmities, 1995 J. ONLINE L. art. 4, <http://www.wm.edu/law/publications/jol/froomkin.html> An issue concomitant to privacy concerns is the right to maintain anonymous communication on the Net. Whether a right to anonymous speech does -- or should -- exist is beyond the scope of this paper. For conflicting views, compare Tom W. Bell. "Anonymous Speech," Wired, Oct., 1995, p. 80 with Richard P. Klaus and Erik J. Heels. "Online," Student Lawyer, Sept., 1995, p. 33-36.

[23]See Rohan Samarajiva, Cybercontent Regulation: From Proximate-Community Standards to Virtual-Community Standards?, The Virtual Institute of Information, (last visited April 14, 1997) <http://www.ctr.columbia.edu/vi/papers/citirs.htm>.

[24] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 194 (1983).

[25] See Dennis v. United States, 341 U.S. 494, 544-46 (1951)(Frankfurter, J., concurring). See also Brandenburg, 395 U.S. at 447-48 (1969)

[26] See Miller v. California, 413 U.S. 15, 20-35 (1973).

[27] See New York v. Ferber, 458 U.S. 747, 754-64 (1982).

[28] See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Cf. Henry v. Collins, 380 U.S. 356 (1965) and New York Times, 376 U.S. at 265 (both holding that defamatory content is not sufficient to remove First Amendment protection). See generally, Joel D. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 VA. L. REV. 1349 (1975); Melville B. Nimmer, The Right to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935 (1968); Harry Kalven, Jr., The New York Times Case: A Note on the Central Meaning of the First Amendment, 1964 SUP. CT. REV. 191 (1964);.

[29] Fighting words are not inherently menacing in a constitutional sense, but become so only when such words "by their very utterance inflict injury or tend to incite a breach of the peace." Chaplinsky, 315 U.S. at 572. See also R.A.V., 505 U.S. at 382-85.. Chaplinsky and its fighting words doctrine, similar to obscenity and defamation, seems to raise many more questions than it answers. For example, Chaplinsky addressed his epithets "God damned racketeer" and "Fascist" to a city marshall who had interrupted Chaplinsky's soap box speech. Chaplinsky, 314 U.S. at 569. Why should this outburst not be construed as a cry of frustration at the overweening power of government, and therefore as protected political or civic speech? Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 626 (1982). What of the emotive content of protected First Amendment speech? See Cohen, 403 U.S. at 18 (finding that state lacks power to censure underlying content of a "fighting words" message). Could Chaplinsky be convicted for uttering fighting words had he written the same phrases on a poster that he carried while walking the public streets? It has been suggested that the fighting words doctrine's distinction between suppressible rough language and protected provocative words -- both of which might stir a listener to anger -- operates more to repress "low value" speakers than "low value" speech. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 33-34. It is interesting that since Chaplinsky, no conviction for uttering fighting words has been sustained by the Court. See, e.g., Plummer v. City of Columbus, 414 U.S. 2 (1973); Brown v. Oklahoma, 408 U.S. 914 (1972); Lewis v. New Orleans, 408 U.S. 913 (1972); Gooding v. Wilson, 405 U.S. 518 (1972). Yet, the fighting words doctrine retains technical validity. See R.A.V., 505 U.S. 377. A number of commentators have criticized the continuing constitutional validity of Chaplinsky, and called for its modification or elimination. See Toni M. Massaro. Equality and Freedom of Expression: The Hate Speech Dilemma, 32 WM. & MARY L. REV. 211 (1991); Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42 RUTGERS L. REV. 287 (1990); Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment, 106 HARV. L. REV. 1129 (1993).

[30] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 728 (1976). Commercial speech was once utterly vulnerable to regulation. See Valentine v. Chrestensen, 316 U.S. 52 (1942). However, the Burger Court, and now the Rehnquist Court, have enhanced the respectability afforded to speech that proposes a commercial transaction. Unlike the aforelisted categories of vulnerable speech, the validity of commercial speech is assessed by means of a balancing test not unlike that used by the Court to evaluate incidental regulations on otherwise protected communication. Posadas De Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).

[31] Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Miller v. California, 413 U.S. 15 (1973). In Roth v. United States, 354 U.S. 476, 484 (1957), Justice Brennan opined:

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

[32] Child pornography is a special case. Materials depicting children in sexual poses or activities can be criminalized, even if the same materials depicting adults would pass First Amendment muster. New York v. Ferber, 458 U.S. 747, 756, 773 (1982). Moreover, mere possession of child pornography, even in the privacy of one's own home, can be criminalized, despite the contrary holding of Stanley v. Georgia, 394 U.S. 557 (1969), concerning possession of adult pornography. Osborne v. Ohio, 495 U.S. 103 (1990). But see Jacobson v. United States, 503 U.S. 540 (1992)(conviction for receiving child pornography in the mail overturned where defendant, the target of a government "sting" operation, was entrapped into the purchase).

[33] United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). Mark L. Gordon & Diana J.P. McKenzie, A Lawyer's Roadmap of the Information Superhighway, 2 J. MARSHALL J. COMPUTER & INFO. L 177, 203 (1995).

[34] The materials "depicted images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination." Thomas, 74 F.3d at 705.

[35]See also Samarajiva, Cybercontent Regulation, supra note 24.

[36]United States v. Baker, 890 F. Supp. 1375 (E.D.Mich. 1995).

[37] Baker also posted to an Internet newsgroup, alt.sex.stories, a story that graphically described the torture, rape and murder of a woman, who was designated by the name of one of Baker's classmates at Michigan. This story was the basis for a superseded indictment, but was not mentioned by the Government in the later indictment that was the subject of this case. Id. The court declared:

While new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in this instance qualitatively change the analysis under the statute or under the First Amendment. Whatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C. § 875(c).

[38] 47 U.S.C.A. § 609 et seq (1996).

[39] Leslie Miller, New Law May Silence On-Line Chat, AOL Says, USA TODAY, Apr. 2, 1996, Life, at 6D.

[40] American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. June 11, 1996). See Shakespeare, Bible Restricted?, COMMUNICATIONS DAILY, March 25, 1996, at 4; America Online Says Censors in Some Cases, Reuters Financial Service, Apr. 1, 1996; Matt Godbey, Internet "Smut" Law Challenged, PENNSYLVANIA LAW WEEKLY, Apr. 1, 1996, State Court Rulings, at 12; Richard Gehr et. al., Best of the Net, THE VILLAGE VOICE, Apr. 2, 1996, Cyber, at 21.

[41] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[42] Id.

[43] "The on-line world's lack of respect for state and national borders is making a mockery of outdated laws." Attempts to erect national barriers against subversive or culturally-polluting information are readily circumvented. On-Line Boundaries Unclear: Internet Tramples Legal Jurisdictions, COMPUTERWORLD, June 5, 1995, News, at 1.

[44] However, the United States has occasionally, and with some degree of success, extended its territorial reach. For example, in United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court upheld the United States' assertion of jurisdiction over a Mexican national who had been forcibly kidnapped and brought to the United States to stand trial for the murder of a Drug Enforcement Agent in Mexico.

[45] Support Democracy in China <http://christusrex.org/wwwl/sdc/sdchome.html>.

[46] Statement of the Tibetan Women's Delegation Fourth World Conference on Women, NGO Forum 95 Huairou, China - September 2, 1995 <http:// www.grannyg.bc.ca/tibet/tibetpr3.html>.

[47]See, e.g.,The official Tupac Amaru Homepage can be found at <http://www.cybercity.dk/users/ccc17427>, for an US Tupac Amaru Solidarity Page, see <http://burn.ucsd.edu/~ats/mrta.htm>. For an Italian one see <http://vivaldi.nexus.it/commerce/tmcrew/news/mrta1.htm>.

[48] The Institute for Historical Review, an organization denying the Holocaust, is present on the WWW through a server in the United States. Its internet offerings include "Auschwitz myths and facts" and "What is a Holocaust denial?" and include outrageous quotes presented in a quasi-scientific context. The Stormfront magazine is a fascist publication operating servers in the United States and Canada. It maintains the White Nationalist Resource Page and contains explicit references to notorious Nazi Gary Lauck. Lauck has used electronic and conventional mail to massively disseminate Nazi propaganda in Germany. He was arrested in Denmark while on a lecture tour and later extradited to Germany, where he is currently awaiting trial for violation of the German Penal Code prohibiting national socialist propaganda. Other web sites include The White Nationalist Page and the Counter-Revolutionary Resource Page. Electronic mailing lists are available a well. For extensive information, see Schröder, supra note 20, at 41 and see also Maier-Rabler, supra note 1, at 72.

[49] The most well-known anonymous remailer is operated without charge by Johan Helsingius in Finland. His remailer can be reached at anon.penet.fi. A Usenet discussion group on remailers can be found at alt.privacy.anon-server; see Andre Bacard, Anonymous Remailer FAQ <http://www.well.com/ user/abacard/remail.html>.

[50] David Chaum, Achieving Electronic Privacy, SCI. AM., Aug. 1992, at 96-101.

[51] "Flags of convenience" defines a situation where registration of foreign-owned and foreign-controlled vessels is permitted by certain countries under conditions that are convenient and opportune for the registrant. Flags of convenience have been variously referred to as "flags of necessity," "cheap flags," and "free flags." R. Tali Epstein, Should the Fair Labor Standards Act Enjoy Extraterritorial Application? A Look At the Unique Case of Flags of Convenience, 13 U. PA. J. INT'L BUS. L. 653, 655 (1993).

[52] Consuelo Lauda Kertz & Lisa Boardman Burnette, Telemarketing Tug-of-War: Balancing Telephone Information Technology and the First Amendment with Consumer Protection and Privacy, 43 SYRACUSE L. REV. 1029, 1053-55 (1992). To be effective, any regulation of speech -- on the net, as well as In conventional communicative forums -- must focus on the party who disseminates the communicative act. Attempts to focus on the party that delivers or receives the message have proven to be ineffective, cumbersome or plain wrong in the past, and no necessity dictates a resurrection of such plans. For example, a telephone carrier is not culpable for a fraudulent 900-service transmitted, and media are not responsible for the accuracy or good faith of advertisements carried unless the publisher undertakes to guarantee the soundness of the advertisement or the product it describes. Pittman v. Dow Jones & Co., Inc., 662 F. Supp. 921, 922 (E.D. La. 1987).

[53] Cornelius F. Murphy, Jr., The Grotian Vision of World Order, 76 AM. J. INT'L L. 477 (1982).

[54] Id. at 480.

[55] See Mayer-Schönberger & Foster, supra note 5, at 90-96 (extensive discussion of the jus cogens doctrine).

[56] Alfred von Verdross, Forbidden Treaties in International Law, 31 AM. J. INT'L L. 571 (1937).

[57] In 1945, the concept of jus cogens was applied and extended in the Nuremberg trial of major war criminals. Steven Fogelson, Note, The Nuremberg Legacy: An Unfilled Promise, 63 S. CAL. L. REV. 833 (1990). The Allied court not only concluded that Germany had violated peremptory norms of International Law, but also extended the concept of jus cogens from the realm of states to the level of the individual. Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 AM. U. L. REV. 1 (1982). See Charter of the International Military Tribunal in TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (Andronicus Pub. Co. 1946) 11. Since Nuremberg, jus cogens prohibits not only states from engaging in certain conduct, but also holds individuals accountable for conduct that violates jus cogens. The Nuremburg Legacy, 63 S. CAL. L. REV. at 868-870. See also Articles 7 & 8, Charter of the International Military Tribunal (1946). This acceptance of peremptory norms of International Law is the significant legacy of the Nuremberg trials, and since Nuremburg, jus cogens has become a widely accepted mainstream principle. The Nuremburg Legacy, 63 S. CAL. L. REV. at 883.

[58] Vienna Convention on the Law of Treaties, 63 AM. J. INT'L L. 875 (1969), signed and ratified to date by 48 nations. During the drafting process, 43 out of 44 nations commented positively on the proposed jus cogens regulation. Comments by Governments, ILC Reports on 2nd part of its 17th Session and on its 18th Session, General Assembly, 21st Session, Official Records, Supp. No. 9 (A/6309/Rev.1), Annex.

[59] For the Socialist view, see Geoffrey Hazard, Book Review of Aleksidze, Some Theoretical Problems of International Law: Peremptory Norms: Jus Cogens, 78 Am. J. Int'l L. 248 (1984); for a western view, see W.Paul Gormley, The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens, THE RIGHT TO LIFE IN INTERNATIONAL LAW (B.G. Ramcharan ed., 1985). For a general treatise of jus cogens see LAURI HANNIKAINEN, PEREMPTORY NORMS IN INTERNATIONAL LAW (Finnjish Lawyers Pub. Co. 1988).

[60] Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).

[61] Mayer-Schönberger and Foster, supra note 5, p. 90-96.

[62] Id. at 97-102.

[63] For example, The Genocide Convention of 1948, 78 U.N.T.S. 227, has been ratified by more than 100 nations. Persons charged with genocide, an offense against the community of nations, can be tried by any nation.

[64] A possible, albeit dramatic, consequence of continuous, open and systematic non-enforcement of the international agreement by one nation could be the restriction of access for information flows from that country, or by that particular government. For example, these domains could be temporarily disabled in the network domain name files.