THE INTERNET: IT'S BOTH UNLEASHED AND UNSTOPPABLE

Recent congressional attempts to regulate the Internet are doomed to fail -- not because bills like Sen. James Exon's banning obscene and indecent speech will never be enacted, but because laws that prohibit speech on the Internet will be unenforceable from day one.

The world of interactive telecommunications knows no boundaries. In it, the technical and legal separations that have divided audio, video, data, broadcast, telephone and cable communications collapse in a sea of digital bits that are inherently fungible. The Internet is an elusive genie, now out of the regulatory bottle. Its ultimate master is each human mind, not law. On the net, it is power of thought, of emotion, of reason and of persuasion that determines who wins and loses, not the threat of regulation. While the net is ungovernable, it needs no government.

We each possess a final check on net speech that may offend. We can accept or reject any speech offering that we greet while surfing the net. We can each edit and transmit information received and set without a power or right to deny any other the freedom to do the same. The net is an extraordinary experiment in liberty that cannot be restrained because it is so diffuse and popular.

Just five years ago, electronic and print media publishers numbered in the tens of thousands. By the year 2000, electronic media publishers will number in the hundreds of thousands, if not millions. In a very short time, the vast majority of those who own personal computers will be in the business of publishing over the net, sending all manner of audio, video and data transmissions over the worldwide web.

This mass diffusion will transform the free-speech environment from a regulable few to an unregulable many. The transformation of the net to a popular medium for mass communications is an FCC commissioner's nightmare. It forecloses the political feasibility of a government role in controlling the net.

Speech police who hope to control net communication they dislike find the worldwide web an inhospitable and mind-boggling place. Speech they wish to suppress may be transmitted from another country to people in the United States within a second or two and then lost without a trace. Most such speech passes without notice. There are simply not enough police, even in the most oppressive state, to monitor the millions of messages transmitted daily over the Internet.

The Internet evades speech police on many levels. Communication over the net is hard to identify. Technologically metamorphic, its digital bits fly across the web at near light speed and can assume any combination of audio, video, or data forms.

Communication over the net is hard to track. It is quite difficult to tell who is sending a message if the sender elects not to reveal his or her true identity. A communication can originate from one point and go to another, like a telephone. It can originate from one point and be broadcast to many others, like a radio or television station. It can originate from many points and converge on a single point, like a town meeting.

Communication over the net exceeds the jurisdictional limits of governments. The net links people from around the world, making the web naturally resistant to the governance of any single nation.

The net transforms everyone into a publisher and thereby disarms governments by the force of numbers. To stifle free expression, content regulators must enact controls before a medium gains mass acceptance. In the case of Internet, the regulators are too late. The medium is unleashed and unstoppable. Public use of the medium is expanding so rapidly that those who want to enact laws limiting what can be said find themselves facing a daunting, if not impossible, regulatory task.

Since King Henry VIII's time, content regulation has depended upon the political vulnerability of a select few publishers. By elevating to the status of publishers those who before were mere recipients of broadcast information the net promises to be the beginning of the end for state censorship.

There are those who lament the demise of governmental controls over electronic speech, fearing the absence of state paternalism will lead to a hedonistic society. The absence of controls is, however, a condition that the First Amendment dictates.

Although the constitutional die was cast in favor of freedom over 200 years ago, it is only now that this freedom long enjoyed by the print media is beginning to transcend the new modes of electronic communications.

In the print media, we have come to accept idea competition as a healthy state of affairs: one that has, in the aggregate, advanced the human condition in profound ways. We have come to believe that more information is better than less, that an informed electorate and informed customers make the best choices, and that the true test of truth is the power of thought to gain acceptance in the idea marketplace.

We have also witnessed the destructive effects of those regimes that depend upon government to decide in the first instance what speech is true, safe, and beneficial.

Those totalitarian regimes, like Maoist China described in Nien Cheng's "Life and Death in Shanghai," destroy the human spirit, rob society of the fruits of its most innovative and creative minds, enforce an official orthodoxy, and replace intellectual honesty with political corruption.

We have every reason to believe that the expansion of freedom into the net (and into all electronic media) will be, on balance, to the overwhelming benefit of mankind. We have every reason to suspect that freedom in the net will accelerate greatly the intellectual, social cultural and economic richness and diversity of the entire world.

We should thus celebrate that freedom and gladly accept the responsibility of exercising choice in the idea market, free of the paternalistic hand of government.

Jonathan W. Emord is a constitutional lawyer in Washington, D.C. He is the author of "Freedom, Technology and the First Amendment."