Speech and Spillover

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July 19 1996 3:30 AM

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.

The Supreme Court probably will overturn the notorious Communications Decency Act. But the issues are not as cut-and-dried as some might suggest.

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By Eugene Volokh

(1,777 words; posted Thursday, July 18; to be composted Thursday, July 25)

One of the great recurring problems in free-speech law is spillover. Free speech, the Supreme Court has held, has limits: Some speech is so harmful and so lacking in redeeming value that it may be restricted. Threats, blackmail, and false advertising are obvious examples. There's no right to say, "Your money or your life" to a stranger in a dark alley; there's no right to spread intentional falsehoods about your product or your enemy's character.

The Supreme Court likewise has held, rightly or wrongly, that minors have no right to see very sexually explicit material, and that people (except, perhaps, the minors' parents) have no right to distribute such material to them. Psychologists and philosophers can debate this, but as a constitutional matter, the question is settled.

But it's often impossible to keep such materials from children without also denying them to adults. Bookstores can check customers' ages, but TV broadcasters, muralists, or people who post things on the Internet can't. The law can allow public display of this material, protecting adults' access but also making it available to children; or the law can prohibit public display, insulating children but also restricting adults. Either way there's spillover. Either the restriction spills over onto speech that should be free, or the freedom spills over onto speech that, in the judgment of most legislators, voters, and judges, should be restricted.

This spillover problem is a recurring question in First Amendment law. The law cannot restrict all harmful, valueless speech and at the same time protect all valuable speech. A classic illustration of the spillover problem is the Communications Decency Act, passed earlier this year in an attempt to stop "indecency" on the Internet. A three-judge federal court was probably correct in striking down the CDA June 11. But the judges' opinions don't squarely face the spillover problem. Perhaps--contrary to the suggestions of some Supreme Court cases--spillover questions should always be resolved in favor of free speech. Perhaps children's increased vulnerability is a price worth paying for extra freedom for adults. But it's important to confront honestly both what's being lost and gained in the process.

The most controversial part of the CDA prohibits anyone from

"us[ing] an interactive computer service"

"to display in a manner available to a person under 18 years of age"

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