When it comes to Comedy Central's The Daily Show, there is very little that it is verboten to joke about. And yet, even a show that routinely shows reckless abandon for the taboo has rules about its humor. In a journal on Slate, show writer Allison Silverman says that jokes that won't run include those ``with references deemed to obscure,'' ones ``that are considered hack,'' and ``jokes written for the room [of writers].'' She also says that, ``The Church of Scientology is not the subject of jokes on The Daily Show.'' Why would a comedy show avoid one church when others are fair game? Church of Scientology jokes are listed under the category of ``jokes that could start a lawsuit'' (Silverman). In fact, Scientology does have a litigious reputation, and in recent years the recipients of its attention have often been individuals publishing on the Internet. In 1995 and 1996, the Church of Scientology became involved in one of the first major Internet copyright cases, when it sued Internet Service Provider (ISP) Netcom to force the removal of materials the church claimed were under its copyright. And thus the seemingly unconnected laws of copyright and free speech came crashing together, forming the lines in an issue that still rages on today. Increasingly, seemingly harmless laws such as copyright are being used to censor valid speech. In order for Americans to be assured the ability to disseminate controversial viewpoints, free speech must not only remain free from legislation, it must also be protected from non-traditional attack via other laws.
Before the Netcom case, the Church was involved in a variety of smaller cases dealing with the Internet. In 1991, a year in which most individuals had never even heard of the Internet, the alt.religion.scientology newsgroup (a.r.s) was created on Usenet. Started in academic circles, Usenet was the open forum of the new Internet, a place where anyone could share his or her views on any topic in thousands of different newsgroups. For those who were able to access it, the a.r.s. group served as a forum for the exchange of information related to Scientology, an organization whose practices were largely shrouded in secrecy. As the Internet and Usenet started gaining in popularity, the Church started using its various arms to try and shut down the group and limit the talk it contained. In December of 1994 a.r.s. was plagued with a series of forged cancel messages. As the Harvard Computer Review explained,
Cancels are special messages that cause other usenet messages to be deleted; legitimate cancels are from the original author of a message or the author's system administrator. However, these cancels of articles critical of the CoS and articles containing quotes of copyrighted materials owned by the CoS were forged (Kadel).In January of 1995 Helen Kobrin, a lawyer for the Church, took matters one step further and issued an ``rmgroup'' command, attempting to get a.r.s. deleted from Usenet servers. She justified her efforts by claiming that ``the sole reason for requesting a.r.s. be shut down is to put a stop to the unlawful postings of copyright and trade secret materials'' (Kobrin). The Church's stated concern was that a.r.s. was being used for the exchange of copyrighted documents that were not intended to be spread beyond select Church members, but many of those critical of Scientology felt that the Church was interested in preventing negative views from being spread.
Kobrin maintained that the documents in question were ``copyrighted Church materials, including both published materials and unpublished, confidential materials, which are also judicially recognized as trade secrets.'' (Kobrin). The validity of these claims to copyright was never questioned by critics, who instead claimed that fair use laws granted them the right to post portions of copyrighted documents in order to promote discussion. In touching on Scientology's lawsuit against a critical website sued for copyright infringement, intellectual property lawyer Lloyd Rich points out that the site's purpose ``was to advance an understanding of issues involving the Church.'' He says that therefore ``the court concluded that this factor weighed in favor of fair use since the purposes of criticism, comment and research all fall within the fair use doctrine'' (Rich). The court summed up its refusal to grant an injunction by saying that
Public interest lies with the free exchange of dialogue on matters of public concern. The injunction sought would silence the Defendants as participants in an ongoing debate involving matters of significant public controversy. Relief of this kind does not serve the public interest (Kane).Despite such setbacks, the Church continued to hold to a strategy of copyright enforcement as a means of restricting information flow. Since copyright is such an established concept, few who aren't versed in its methods would look at it as a means of prohibiting speech. In the context of enforcement like that carried out by Scientology, however, that is exactly what it is being used for.
In the Netcom case of 1995, the Church took their copyright enforcement strategy to the next level. The Church was having varying degrees of success persuading individuals to refrain from posting their materials, but this was bringing with it the undesired side-effect of each case inciting additional infringement by others. A Los Angeles Daily News article noted that ``avid users of the Internet tend to get involved in any argument they run across, and [...] many ended up taking up the fight'' (Weise 1). Clearly, wide individual pursuit with limited reward was an unsustainable proposition. What was needed was a larger entity to attack, one which would be forced to put business ahead of the desire to fight for speech. Netcom, a large ISP, was the provider of bandwidth for an online bulletin board on which Church documents were posted. Along with the individual who posted the documents, the Church also included Netcom as a defendant in their suit. They argued that since the material reached the Internet via Netcom, the ISP should be liable. This philosophy stood in direct opposition to common thought at the time, which was that ISPs, like telephone companies, should have ``common carrier'' status. This special class of providers are not liable for their content because they merely act as a conduit, having no control over what passed through their lines. In an article on CNN, Netcom attorney Randolph Rice argued that ISPs are simply not able to effectively control content. ``Netcom does not prescreen and does not normally control content,'' he said, ``To require us to control content will stifle speech, be a tremendous economic burden, and will reduce the Internet's utility to all of its users" (Knapp). However, after eighteen months Netcom and the Church ended up settling, with Netcom announcing ``it will investigate all future complaints over copyright issues. While exploring these cases, Netcom will either remove the challenged material or deny subscribers access to it'' (Huffstutter 1). Internet analysts and free speech advocates alike were displeased by the potential chilling effects of such policy. Since no actual infringement is required for access to be denied, only the mere accusation of it, one Internet administrator asks, ``What's to prevent me from saying, 'Hey, I own that. Pull it off.' At that rate, nothing will be safe on line'' (Huffstutter 2).
Despite protest of carrier status, the model adopted by Netcom in 1996 is now law due to the passage of the Digital Millennium Copyright Act, or DMCA. Recently under fire for many controversial protections given to copyright holders, the DMCA includes verbiage specifying how an ISP must respond when notified of a potential copyright violation. Recently the Church came into the news again using the same strategies with the new laws, serving a DMCA notification to Internet search engine Google. The Church claimed that two sites were violating Scientology's copyright on church documents, and therefore must be removed from Google's Internet index. In order to avoid a lawsuit, Google complied with the notification and removed the sites, causing an uproar in Internet circles. ``Google should be a fair and accurate representation of what's on the Internet," said Don Marti, a free speech advocate who took his concerns straight to Google headquarters (Abreu). Particularly troubling to some advocates was the fact that through the silencing of search engines, it has now been shown that it is possible to use the DMCA to prevent Internet users from finding a foreign site. Regardless of the site's legality in its host country, companies are now able to use US legislation to control its availability to a large percentage of its potential audience.
Many people have strong opinions about the legislation of hate speech, but few are aware of stronger threats to speech that are establishing themselves under a very innocuous guise. No longer is it enough to simply confirm the status quo when it comes to the recognition of free speech rights. Instead, in order to preserve the ideals of speech upon which this country was founded, it is now necessary to be proactive in the pursuit of freedom. The path of legislating speech is a slippery slope, as is the path of allowing corporate lawyers to twist seemingly unrelated acts in order to fit their fancy. Free speech must be protected in order to promote the free exchange of ideas in our country. For this speech to merely not be legislated is proving to be inadequate, therefore active steps must be taken to protect speech from attack under other legislation.