Are there other ways in which the government can shield children that are *less restrictive* than the CDA but still at the same time *pretty much as effective* as the CDA?
We believe that the answer is "Yes," which makes the CDA unconstitutional, though we don't think the matter is open and shut.
One key to this is *filters*: Programs (SurfWatch and Cyberpatrol are two examples that have gotten a lot of press) that parents could use to block access to certain kinds of sites. Using these filters, parents could shield their children from most of the supposedly harmful material. At the same time, people who do want to put up sites that contain patently offensive matter would be allowed to do so. This approach is less restrictive of speech, but at the same time pretty effective at shielding children.
But is it effective enough? Well, filters are pretty good at shielding children, but they aren't perfect. Their most important imperfection is that the filter authors are limited in their ability to manually check material. New Web sites get created all the time -- filter authors might not be able to keep up. And of course no filtering company can check through all newsgroup postings; the most they can do is exclude newsgroups that have historically had indecent material, and hope that the other newsgroups will stay entirely decent. (Some filters can scan for certain "dirty words" or allow access *only* to the material that the authors have recently checked, but these alternatives have their own limitations.)
Of course, the CDA is itself an imperfect solution. Like all laws, it will be violated, often with impunity. Still, a speech restriction need not be perfect to be constitutional. The government just has to show that the CDA will provide *some* protection, and that the alternatives -- here, the filters alone -- would be considerably less effective than the filters coupled with the CDA.
This is where *mandatory self-rating* comes in. If people were required to mark all sufficiently explicit Web pages or newsgroup posts with a special marker, filter programs could recognize that marker. That way, the filter could shield children from access to all the material that the filter operators find too explicit *plus* the material that's appropriately self-rated, even if the filter manufacturers haven't gotten to check it yet. Some people might violate the law and fail to properly mark their "indecent" material, but some people might equally violate the CDA. Compliance with the self-rating requirement will probably be at least as good as -- if not better than -- compliance with the CDA.
This approach would thus be *less restrictive* than the CDA, and probably pretty much as effective as the CDA; therefore, the existence of this "less restrictive alternative" should make the CDA's more restrictive ban unconstitutional.
Mandatory self-rating would still be a speech restriction: It would require people to self-rate their material, on penalty of criminal liability if they rate it "clean" when a court concludes it's "dirty." This is a substantial burden on some speakers. And there are potential First Amendment problems with the government telling people what they must say -- "compelling" their speech -- through this sort of rating system as well. Still, given that the Court has found there to be a compelling interest in shielding children from "indecent" material, this kind of restriction -- which is considerably less burdensome than a total ban -- would probably be constitutional. (We're not saying that we think it would be wise.) If Congress wants to shield children from indecent speech, it should do this (or perhaps stick with other alternatives, such as simply trying to make filters more widely available) rather than imposing the broader restriction embodied in the CDA.
What can the government say in response here?
Well, the weakest point in our argument is probably our claim that this filters-plus-mandatory-self-rating alternative is pretty much as effective as the CDA. This is our guess, but we might be wrong. It's conceivable that nothing will be as effective -- or even almost as effective -- as an out-and-out ban. For instance, if the material is available online at all (even properly rated), some kids might be able to see it on their friends' unshielded computers. Others might be savvy enough to be able to hack around the filtering software.
Our sense is that the Supreme Court will conclude that such avoidance, while possible, will be rare enough that the proposed alternatives will be pretty much as effective as the CDA. The Court has never demanded that the proposed alternatives be perfectly effective. In fact, in Sable Communications v. FCC, the Court struck down the ban on dial-a-porn because it thought that technology could provide some less restrictive alternatives -- it was clear that these alternatives wouldn't be *perfectly* effective, but the Court thought that they'd probably be good enough.
What are the government's other good arguments in support of the CDA? Our next message will attempt to lay them out for your consideration.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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