Speech and Spillover
The Supreme Court probably will overturn the notorious Communications Decency Act. But the issues are not as cut-and-dried as some might suggest.
Still, the court was willing to tolerate some spillover; after all, even the alternatives it suggested would deny access to some adults. And it also hinted that it might even allow a total ban if such alternatives could be shown to be inadequate. Denver Consortium followed the same pattern: It struck down a restriction on indecent speech because there were other effective alternatives available; but it suggested that such a restriction might be constitutional if it were, in fact, the only effective way to shield children.
Sable and Denver Consortium make clear that the court won't tolerate unnecessary spillover onto adults. But on the tough question--what happens if it's impossible to shield minors without burdening adults?--there's an unresolved tension. Butler says that the speech must be allowed. Pacifica, Sable, and now Denver Consortium suggest that the speech may be restricted.
On the Internet, is it possible to shield children without restricting adults? Parents can get software--SurfWatch is one popular brand--that keeps their computers from accessing any place that's on a list of "dirty" locations, a list selected and frequently updated by the software designers. If the government wanted to, it could buy SurfWatch (for a fraction of what it would cost to enforce the CDA) and give it away to parents. Could this be the "less restrictive alternative" that the government could use instead of CDA's total ban? Well, it depends on how much shielding of children you're willing to sacrifice. The SurfWatch solution is limited by the software designers' ability to keep up with the latest "dirty" places. Dozens of Web sites are being added daily, and you never know what will get posted tomorrow even on existing sites or newsgroups. Some things will inevitably be missed.
The purely technological fix, then, is less restrictive than the CDA, but it's also less effective. The CDA, of course, won't be perfect, either--many will flout it, and Web sites in other countries won't be bound by it--but the ban plus the technological fix probably will shield children better than the technological fix alone. Does this extra protection justify the considerable spillover? The precedents don't answer this.
There's a hybrid technological and legal approach that might be more effective, and thus more likely to be the sort of "less restrictive alternative" that would make the total ban invalid. The law might demand that online material be rated--that any sufficiently sexually explicit text or image be marked "dirty" in a way that computers can easily recognize. Parents could then set up their children's computers to block access to these pages. Alternatively, the software could assume that any page is dirty unless it's labeled "clean," with the law making it illegal to falsely mark "clean" a page that's actually dirty.
Many people, of course, might misrate their material--intentionally or accidentally. But the CDA will be intentionally or accidentally violated, too. In fact, a rating requirement might be more effective than a total ban. People may be more willing to comply with the rating law, since it would let them continue selling their wares or expressing their views. Still, ratings won't shield children using computers that don't have the rating software turned on. And no one knows how often this will happen.
The CDA is now in the hands of the Supreme Court. Some say the justices should simply rule that sexually explicit material isn't as dangerous for children as it's cracked up to be, and therefore, free speech should prevail. But many people, probably including the justices, are willing to accept that sexually explicit material is indeed harmful to children. Other CDA critics assert that the technological alternatives will shield children every bit as well as a total ban would, and that the CDA therefore is entirely unnecessary. But that too will be hard to prove.
Ultimately, then, the justices will have to make a hard choice: sacrifice some shielding of children in order to protect the freedom of grownups, or sacrifice some access by grownups in order to shield children. My guess is that the marginal benefit of the CDA over the technological alternatives is small enough, and the burden that the law creates is large enough, that the CDA will be overturned. But it's a closer question than many might think.
Eugene Volokh teaches constitutional law at UCLA School of Law and runs the Volokh Conspiracy Weblog.