What does that mean? A screen name is just a label for identifying who you are when you are on the system. It need not (indeed, often cannot) be your own name. If your screen name is “StrayCat,” then people can reach you by sending e-mail to “straycat@aol.com.” If you are online, people can try to talk to you by paging StrayCat on the AOL system; a dialogue would then appear on your screen asking whether you want to talk to the person who paged you. If you enter a chat room, the list of residents there will add you as “StrayCat.”

But who is StrayCat? Here is a second dimension of control. StrayCat is who StrayCat says she is. She can choose to define herself as no one at all. If she chooses to place a description of herself in the members’ directory, that description can be as complete or incomplete as she wishes. It can be true or false, explicit or vague, inviting or not. A member stumbling across StrayCat, then, in a chat room set up for stamp collectors could get her profile and read that StrayCat lives in Cleveland and is single and female. What happens next is anyone’s guess.

Yet this need only be one of StrayCat’s five identities. Let’s say there is a different persona that StrayCat likes to have when she wanders through chat rooms. She can then select another screen name and define it in the directory as she wishes. Perhaps when StrayCat is having a serious discussion in a newsgroup or political list she prefers to speak as herself. She could then select a screen name close to her own name and define it according to who she really is. At other times StrayCat may like to pretend to be a man—engaging in virtual cross-dressing, and all that might bring with it. One of her screen names could then be a man’s. And so on. The point is the multiplicity that AOL allows, and the freedom this multiplicity permits.

No one except StrayCat needs to know which screen names are hers. She is not required to publish the full list of her identities, and no one can find out who she is (unless she breaks the rules). (After revealing to the U.S. Navy the name of one of its members so that the Navy could prosecute the person for being a homosexual, AOL adopted a very strict privacy policy that promises never to allow a similar transgression to happen again.)¹

So in AOL you are given a fantastic power of pseudonymity that the “code writers” of real space simply do not give. You could, of course, try in real space to live the same range of multiple lives, and to the extent that these lives are not incompatible or inconsistent, you could quite often get away with it. For instance, you could be a Cubs fan during the summer and an opera buff during the winter. But unless you take extraordinary steps to hide your identity, in real space you are always tied back to you. You cannot simply define a different character; you must make it, and more important (and difficult), you must sustain its separation from your original identity.

That is a first feature of the constitution of AOL—a feature constituted by its code. A second is tied to speech—what you can say, and where.

Within the limits of decency, and so long as you are in the proper place, you can say what you want on AOL. But beyond these limits, speech on AOL is constrained in a more interesting way. Not the constraint of rules. My point instead is about the range of permissible speech governed by the character of the potential audience. There are places in AOL where people can gather; there are places where people can go and read messages posted by others. But there is no space where everyone gathers at one time, or even a space that everyone must sooner or later pass through. There is no public space where you could address all members of AOL. There is no town hall or town meeting where people can complain in public and have their complaints heard by others. There is no space large enough for citizens to create a riot. The owners of AOL, however, can speak to all. Steve Case, the “town mayor,” writes “chatty” letters to the members.² AOL advertises to all its members and can send everyone an e-mail. But only the owners and those they authorize can do so. The rest of the members of AOL can speak to crowds only where they notice a crowd. And never to a crowd greater than twenty-three.

This is another feature of the constitution of the space that AOL is, and it too is a feature defined by code. That only twenty-three people can be in a chat room at once is a choice of the code engineers. While their reasons could be many, the effect is clear. One can’t imagine easily exciting members of AOL into public action. One can’t imagine easily picketing the latest pricing policy. There are places to go to complain, but you have to take the trouble to go there yourself. There is no place where members can complain en masse.

Real space is different in this respect. Much of free speech law is devoted to preserving spaces where dissent can occur—spaces that can be noticed, and must be confronted, by nondissenting citizens.³ In real space there are places where people can gather, places where they can leaflet. People have a right to the sidewalks, public streets, and other traditional public forums. They may go there and talk about issues of public import or otherwise say whatever they want. Constitutional law in real space protects the right of the passionate and the weird to get in the face of the rest. But no such design is built into AOL.⁴

This is not to romanticize the power of real-space public forums. We have become such a nonpolitical society that if you actually exercised this constitutionally protected right, people would think you a nut. If you stood on a street corner and attacked the latest tax proposal in Congress, your friends would be likely to worry—and not about the tax proposal. There are exceptions—events can make salient the need for protest—but in the main, though real space has fewer controls through code on who can speak where, it has many more controls through norms on what people can say where. Perhaps in the end real space is much like AOL—the effective space for public speech is limited, and often unimportant. That may well be. But my aim here is to identify the feature and to isolate what is responsible for it. And once again, it turns out to be a feature built into the code.

Footnotes

¹ Swisher, Aol.com, 314–15. Edit Delete

² Ibid., 96–97. Edit Delete

³ See Robert C. Post, Constitutional Domains: Democracy, Community, Management (Cambridge, Mass.: Harvard University Press, 1995), 199–267. Edit Delete

⁴ See CyberPromotions, Inc. v America Online, Inc., 948 FSupp 436 (EDPa 1996) (holding that a company has no free speech right under the United States, Pennsylvania, or Virginia Constitutions to send unsolicited e-mail over the Internet to a competitor’s customers). Edit Delete