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.
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"
"any
comment, request, suggestion, proposal, image, or other communication"
"that, in
context, depicts or describes,"
"in terms
patently offensive as measured by contemporary community standards,"
"sexual or excretory
activities or organs."
Virtually any sort of speech in the public areas of
cyberspace is available to minors, so the law really applies to all such areas,
including Web sites, Internet newsgroups, e-mail discussion lists, chat rooms,
and bulletin boards.
And
"patently offensive" can cover a lot of territory. Many profanities might be
considered "patently offensive" descriptions of "sexual or excretory activities
or organs," especially under the standards of some conservative communities.
Putting a David Mamet play on your Web site, thus, might be a crime. The term
"patently offensive" is vague enough that no one knows for sure, but the wise
user will take a conservative approach. Given some recent Supreme Court
decisions, it seems unlikely that the vagueness alone would make the act
unconstitutional. But there's no doubt that the law's vagueness does indeed
make it more likely to stifle someone's freedom of expression.
The CDA, though ostensibly intended to protect children,
clearly has a spillover effect on adults. Adults generally have the right to
see material that's "patently offensive." There are two exceptions to this:
child pornography (sexually explicit pictures made using child models) and
"obscenity"--but both are much smaller categories than the CDA's "indecency."
May the government, in its quest to shield children, restrict the online
choices of grownups? Or to look at it the other way: Must the courts, in order
to protect the freedom of grownups, restrict the government's ability to shield
children?
The
Supreme Court precedents are unclear. In a 1957 case called Butler vs.
Michigan , a state law barred distribution of material that might be
unsuitable for minors. The court concluded that such a ban was
unconstitutional. The law, it said, "reduce[d] the adult population of Michigan
to reading only what is fit for children. ... Surely, this is to burn the house
to roast the pig." The court agreed that the state could bar distribution of
such stuff directly to children. But clearly, such limited restrictions don't
work as well as a total ban. The court apparently was willing to tolerate some
perceived harm to children in order to protect the freedom of adults.
But in some recent cases, the court has taken a different
approach. One such case is the oft-criticized FCC vs. Pacifica
Foundation (1978). The Pacifica court upheld a ban on
"indecency"--George Carlin's "Seven Dirty Words" monologue--on radio and
television broadcasts "when there is a reasonable risk that children may be in
the audience." The spillover was clear: Adults were deprived of access to
certain materials on certain media (radio and television) during most hours.
But the justices were willing to allow such a restriction of adults' access to
speech in order to shield children.
Pacifica is a narrow decision, and there's language in it suggesting
that it only applies to over-the-air broadcasting. But in this year's cable
indecency case, known as Denver Consortium , four Supreme Court justices
were willing to use Pacifica as a guide for cable television as well as
over-the-air broadcasting. (The CDA court's decision was written before
Denver Consortium was handed down.) And during the last 10 years, some
lower courts have upheld bans on public display of sexually explicit material
that's not technically "obscene" on the grounds that the law may shield
children even if this keeps, say, a would-be muralist from communicating to
adults. The Supreme Court hasn't spoken on these specific statutes.
Another important, though somewhat ambiguous, precedent is
Sable Communications vs. FCC (1990), in which the court struck down a
ban on dial-a-porn. The government argued the ban was needed to protect
children. But the court pointed out that there might be "less restrictive
alternatives" that would insulate children without entirely banning the medium.
For example, the court said, the government could require services to take
credit-card numbers, or require phone companies to let parents block
area-code-900 phone calls.
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.
