February 9, 1999

ERODING FIRST AMENDMENT PRECEDENTS NEED STRUCTURAL FIX

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—Well, we squeaked by again and still have an Internet free of content restrictions. But for how long? Two experts in computer science and law have found that the court cases over Internet controls expose the rusting and inflexible joints of First Amendment precedent, and that a more clear-cut use of existing precedent will do free speech a service.

Like most knowledgeable lawyers, all the parties in the Child Online Protection Act—the Justice Department, the plaintiffs, and the courts—did their best to stick to existing precedent and doctrine. Judge Lowell A. Reed, Jr.’s decision was almost a point-by-point recapitulation of the historic ruling that overturned the Communications Decency Act in 1997; this ruling in turn cited doctrines set down during decades of previous censorship cases. (Another successful lawsuit against the CDA was brought by the publisher of the American Reporter.)

Judge Reed’s unusual statement of sympathy for the losing side, his admission that, “the hard fact is that sometimes we must make decisions that we do not like,” his expression of “personal regret that this preliminary injunction will delay once again the careful protection of our children”—all these show how strong the First Amendment remains.

Essentially, the judge overruled his gut feelings by his reverence for the powerful tradition of protecting speech between adults. His dedication may be a clue to how First Amendment doctrine can be strengthened against attack while being simplified for application in lower courts.

First Amendment precedent has been extensively re-examined by Professor Eugene Volokh of UCLA Law School, who can also cite a bachelor’s degree in computer science and 12 years’ experience as a professional programmer. More recently, computer science professor Max Hailperin contributed a short discussion of how the doctrine applies to COPA. Hailperin’s commentary appeared in the computer journal Communications of the ACM. Both Volokh and Hailperin would like to see COPA struck down, but warn that it’s much harder to defeat than the CDA.

In the cases of both the CDA and COPA, court decisions rested on three basic doctrines that have appeared in historic cases upholding or rejecting censorship.

First, the laws are unconstitutional because they impose a “substantial burden” on protected speech.

The CDA would have essentially removed lots of useful material from the Internet because the burden of checking IDs is too great. COPA, while much narrower, was found by Reed to impose too much of a burden on adults and Web sites. Although the target of COPA is commercial pornography, it could also cover socially valuable speech such as sites discussing safe-sex practices. Furthermore, Reed found credible evidence that sites with such socially valuable material would lose readers if they imposed the burden of submitting a credit card number.

The “substantial burden” doctrine is praised by Volokh and Hailperin as a strong basis for applying the First Amendment; they suggest it be the basis for future decisions.

Second, the courts rejected the Internet laws because less restrictive means could be found that would be equally effective in protecting children. This doctrine is much more risky than the first.

Aside from the failings of these “less restrictive means”—software filters—which make them highly distasteful to most free-speech proponents, the evidence that these means are “equally effective” can easily be challenged. Volokh, for instance, points out in one article that parents might not install filters, that sites can’t rate all Web pages, and that children can go to computers outside their homes.

But Hailperin points to an even more dangerous result that could emerge from the “less restrictive means” doctrine. Suppose some law passes court scrutiny—either COPA in a higher court or something new—and children still manage to find pornography. COPA itself left plenty of holes; since it covered only the Web, for instance, it could not be used against chat rooms, electronic mail, or simple file-transfer connections.

If that were to happen, Congress and the Justice Department could demonstrate to a court that an even stricter law is needed. They can claim they tried a “less restrictive” law and it was not “equally effective.” Stronger and stronger laws can be passed over time as clever Internet users find ways around old ones.

In this nightmare, the “less restrictive” doctrine ceases being a protection for the First Amendment and instead turns into a battering ram against it.

Third—according to court rulings—the laws proposed so far wouldn’t be effective because there are too many ways to work around them. For instance, children can find their parents’ credit card numbers and pretend to be adults.

This final doctrine is a compelling argument, but encourages a search for technical measures to track and identify people. Furthermore, courts know that they can’t expect a law to be 100% effective (after all, minors get cigarettes and alcohol all the time, as well as porno magazines). If the defendants persuade the court that a law is somewhat effective, the third doctrine is not strong enough to overrule it.

Current First Amendment precedent, in short, rests on three doctrines that reinforce each other to some extent, but that leave open some avenues for attack.

It is tempting to see current doctrine as one of balancing different interests—how important is it to protect children, and how much freedom can we sacrifice to do so?

In this view, the reason that states can’t ban the distribution of pornography everywhere at any time (Butler v. Michigan, 1957) is that they would force the population to give up too much. But you can ban the sale of pornography to minors in bookstores because it imposes a relatively small burden on adults to show identification proving their age (Ginsberg v. New York, 1968).

Volokh warns strongly against reducing First Amendment law to one of balance. Such a viewpoint leaves mushy precedents that lower courts have trouble interpreting, and that some communities are sure to abuse. Each prosecutor can use personal judgment in bringing someone to court; nervous content providers can guess neither what the prosecutor or what the judge will think. Since the Internet crosses all boundaries, one can’t rely on community standards to regulate it in the way they can be used to regulate top-less dance joints and adult book stores.

Instead, Volokh calls for a “normative” ruling that would uphold the absolute right of adults to unburdened free speech. Such a ruling would not be a new doctrine; it’s just a strong statement of the first doctrine I listed in this article.

One can see the doctrine in the statements repeated by the Supreme Court in striking down the CDA. The government cannot “reduce the adult population . . . to . . . only what is fit for children”; and “the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”

A reliance on the “substantial burden” doctrine does not mean anything goes. Courts can still limit very precisely defined infractions such as libel, threats of violence, and child pornography. But it will ensure that a “compelling interest” to protect children cannot infringe on the rights declared to be protected.


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