Focusing on the Essentials

One of the key ideas that I took away from this week’s reading was something that Tribe said at the end of his explanation of his third Constitutional axiom. Tribe is discussing the debate regarding free speech in cyberspace and the problems that arise when the government selects which types of speech should be permitted and which are not protected. He draws a parallel between cyber viruses and yelling “fire” in a movie theatre to illustrate the flexible nature of Constitutional principles and their ability to evolve as new technological or cultural circumstances arise. I agree with a lot of what Tribe says, especially his emphasis on the importance of extracting the essential features from Constitutional values and ensuring those live on, while not getting bogged down in the superficialities and unnecessary aspects of the law. Of course, many examples can be found in gray areas, such as the Maryland court case regarding the right of the accused to “confront” his accuser. I happen to fall on the side of the dissenting opinion, as I read the Constitutional guarantee to value the physical real-life confrontation between accuser and defendant and all the truth-telling implications/emotional closure that such a meeting connotes.

Meanwhile, in one of the other readings, Barlow evokes an image of an oppressed cyber warrior who has been stripped of his freedoms. I don’t know if my problem with Barlow is a result of his piece having been written more than thirteen years ago (over a century in Internet years), but the obvious interconnectedness of the real and virtual world is extremely problematic for his argument. Reese already covered many of the problems with Barlow, but his declaration that “your legal concepts of property [and] expression…do not apply,” are just fundamentally flawed and not based in the reality of today’s digital age. Our Constitution has adapted and hopefully will continue to adapt to the Internet by focusing on the principles that the Founders put forth.