ArticleIP_3835.txt

   
   
      
         
            

            
               (posted Wednesday, Aug.
14)
            

            Click here
to see letters to our tech guy. You can send any technical questions to
[email protected], and
all other mail to [email protected].

            
               Foul
Ball
            

            I still
puzzle over stadium economics ("Diamonds
in the Rough," by John Pastier). If stadiums are such a good business deal,
why aren't they readily funded by private enterprise without major municipal
support? The funds are out there and available when companies, banks, and
venture capitalists need a few billion to buy up some competitor. My suspicion
is that the absence of private capital proves that stadiums are not a good deal
except for the select few on the inside who are subsidized by other people's
money.

            --Jim
Cerny

            
               No Rain,
No Gain
            

            One of
John Pastier's assertions ("Diamonds
in the Rough") leaves me perplexed. He states that Seattle "has the driest
weather in MLB outside California." Is this the same Seattle I know? Is this
the same Seattle described in a past issue of Newsweek , which featured
SLATE's editor on the cover in a rain slicker? Have I missed something?

            --Kent
Wosepka

            
               Sucker
Pitches
            

            Your story
on new ball parks ("Diamonds
in the Rough," by John Pastier) failed to mention their blatant
commercialism in the form of billboards and other intrusive enticements to buy
products totally unrelated to the game. Improvements in architecture, regaining
intimate space and scale and all the rest, won't disguise the ugliness of
advertising the local bank, Chevy dealer, and chain retailer as a backdrop for
baseball.

            --John
Miller

            
               Creaming
DeMuth
            

            I read
last week's "Committee of Correspondence: Advice for Dole," with some interest
and not a little amazement. Chris DeMuth's contribution is an outstanding
illustration of the ideological dead weight carried by Bob Dole's campaign so
far. The stable of think-tank hobby horses being promoted (school choice,
abortion, and missile defenses) is as bloated as the government DeMuth decries.
Borrowing from DeMuth, I ask, "Is Dole any less constrained than Bill Clinton
'by powerful constituency groups within the [Republican] Party'?" So far, the
answer is an unqualified "Yes!" These inside-the-Beltway issues and their
small, but vocal, constituencies make this election Bill Clinton's to lose.

            --Bob
Bammerlin

            
               Click
Here to Snooze
            

            Over the past few weeks the
"Committee
of Correspondence" has covered several topics. Each has been boring. The
root of the difficulty is most probably the format rather than the
discussants.

            But the result is becoming
predictable.

            You have invented a piece of
writing that is created from conversation. This guarantees the outcome will be
tiresome and seemingly self-indulgent. And hard to read--impossible to read. I
am interested in all the topics discussed so far, yet have been unable to read
through more than a third of any offering.

            I applaud
your willingness to experiment, and yes, all well-designed experiments are
successful. Please declare this experiment completed and move on.

            --Ned
Fagan

            
               Left
Out
            

            Herbert Stein is a senior
fellow at the American Enterprise Institute ("Committee of
Correspondence: Advice for Dole"), Robert Bartley is editor and vice
president of the Wall Street Journal , Christopher DeMuth is president of
the American Enterprise Institute for Public Policy Research, Frank Keating is
the Republican governor of Oklahoma, and Mary Matalin was the deputy campaign
manager for the Bush/Quayle '92 ticket.

            Maybe
fairness isn't an aim of your electro-rag, but how about an occasional
committee member who stands to the left of Atilla the Helms?

            --Dick
Paddock

            

               Pedestrian Crossing
            

            I have been very disappointed
by what I've seen of SLATE thus far. The economics articles, while a good idea,
have proven fairly trivial and even pedestrian. Steven E. Landsburg's comments
on the national debt ("Kwitcherbellyachin'") were neither enlightening nor humorous,
leading me to wonder why you bothered running the piece.

            SLATE clearly seems to have
already taken a political slant to the right. Its content is proof enough.
Clinton's affiliation with a labor leader is hardly surprising ("The Clintons and
the Mob," by Jodie T. Allen), even less so to one who supported his
position on NAFTA. What is surprising is the temerity of running an article
titled "The Clintons and the Mob" when the "mobster" in question has neither
been convicted of nor indicted for racketeering. Indeed, the author only
establishes a connection between Coia and the first family; evidence of
organized criminal activities was weakly presented. This smacks of
irresponsible journalism.

            In another article, "The
Warlords of Democracy," by Paul Goble, you offer a link to a Ronald Reagan
speech, at the end of which is a command to "go back." Dutifully following
instructions, I find myself in a GOP Web site endowed with the collected wisdom
of such luminaries as Newt Gingrich and Rush Limbaugh.

            I
understand that this publication is still developing. I certainly hope it
develops into a well-balanced, responsible journal, but that is not the
direction I perceive.

            --Craig Schultz

            
               War and
Remembrance
            

            Paul
Goble is not the first person to discover that even the best forms of
government are prone to engage in war ("Warlords
of Democracy"). Nor is his analysis more penetrating than that of others
who have made the same discovery. Goble's suffers by comparison to K.N. Waltz's
in his 1959 book, Man, the State, and War . Nevertheless, Goble's point
is one that bears repeating, if only because it seems to be so easily
forgotten.

            --Rendell
Davis

            
               C+ for
Democracy
            

            It's no surprise that
democracy isn't perfect ("Warlords
of Democracy," by Paul Goble). It is essentially an averaging of the
people, and like any average, it falls somewhere between the best and the
worst. The decisions a democracy arrives at won't be as good as those the best
people in the country would have made, but neither will they be as bad as what
the worst would have done. The second part is the most important side of the
equation.

            A
benevolent dictatorship would be the best form of government, except for one
distressing fact. Nobody's figured out how to make sure the dictator will
actually be benevolent before giving him the reins of power. And you generally
can't trade them in later without a whole lot of bloodshed.

            --John
Hawkins

            
               Freedom
Fighters
            

            I was a bit surprised by
Paul Goble's position in his article titled "Warlords
of Democracy." The term "peaceful democracy" is almost a contradiction in
terms. The justification of democracy is that it provides the greatest level of
freedom to its citizens. There is an old saying, "You can have peace or you can
have freedom. But never count on having both at the same time." There will
always be threats to democracy and freedom from people who want more power,
land, etc., and who are willing to use force to achieve their goals.

            
Democracies have always preferred peace to war. War is expensive and wasteful
in terms of human life as well as economics. If the alternative is to lose our
freedom, then we must be warlike to preserve it.

            --Joseph
Biener

            
               Right
In
            

            I'm a far right, reactionary,
radical, mean-spirited, child-starving, Limbaugh-loving ditto-head Republican
(who for years thought Goldwater was a Commie, and was proved right). I'm also
a born-again Christian and I'm studying apologetics, along with Hawking and
other "Black Hole" evolutionists. Thank God I'm a Bluegrass picker too, so I
can take my banjo and go into another world when need be.

            Watching
Michael Kinsley on Crossfire used to make me see red. But I really do
try to look at all sides, and SLATE is a great help. You have a reader in
me.

            --Dean A. Bahr

            
               Feeling
Their Pain
            

            Stephen Chapman ("What's
Wrong With 'Victims' Rights' ") expresses some practical concerns
regarding the Victims' Rights Amendment. However, there is great danger in the
amendment's subtext.

            There are several
justifications for taking a convicted criminal's freedom away. The most
neglected rationale, but the one closest to our spiritual traditions, is
rehabilitation. Other legitimate objectives include removing predators from the
general population and setting an example to deter potential criminals. The
impulse animating the Victims' Rights Amendment, however, is different. It
seeks to assuage the pain of victims by allowing them to participate in the
suffering of those who hurt them.

            This cannot be called wrong.
How can one tell parents that they should not want to see the person who raped
and killed their child punished? Nevertheless, it is not a principle that
should be honored with a place in the Constitution. It does not consider the
greater good of broad society; the amendment is a revenge wish, pure and
simple.

            The real
problem with the Victims' Rights Amendment is that it undermines the moral
authority of justice.

            --William
Gadea

            
               Kill and
Ask Questions Later
            

            Reading
Robert Wright's piece about the prospects for human cooperation ("Interdependence Day"), I wonder how he might incorporate fear into
the theory of strategic bonding. It seems to me that the instinct for survival
plays as much a role in the trust or distrust among the races as genetics. I've
always felt that a chief cause of racial strife is that on a primal,
instinctive level, we distrust something new or different from what we know. If
we encounter this new, different animal when we are alone, our instinct tells
us to run away. If we outnumber this alien being, our instinct tells us to kill
it and ask questions later (or, at the very least, discriminate against it and
keep it in a manageable place). Only by understanding the alien being, and
feeling unthreatened by its presence, will the instinct to control it be
neutralized.

            --Dale
Kutzera

            
               Bad
Judgment Call
            

            I was surprised by "The
Bull Street Journal." My reaction while reading it was to be
embarrassed for SLATE, because the whole feature smells like a juvenile attempt
to slam a competitor via the most unprofessional means. The kind of SLATE I was
coming to enjoy reading was one that would rip the Wall Street Journal
apart using facts, ideas, and finely honed reasoning. There is no place in that
kind of SLATE for this kind of high-school parody of a competing
publication.

            SLATE is still new, so
perhaps this is the kind of thing that can be written off as inexperience.

            I'll keep
reading, but no longer will I assume that SLATE will always exercise good (or
even average) editorial judgment in its selection of features.

            --Terry
O'Neill

            
               Save Room
for Dessert
            

            I was
rather annoyed to find that both the theater and art reviews in this week's
SLATE ("Quel Drag!" by Larissa MacFarquhar, "New York State of
Mind," by Louis Menand") cover minor events in Manhattan. I hope this isn't
a sign that SLATE will follow the lead of many of its print counterparts by
licking every crumb from New York's cultural plate while completely ignoring
major events that occur elsewhere.

            --Robert
Lauriston

            
               Facts
and Filters
            

            Professor Eugene Volokh may
have created more confusion than he dispelled in SLATE ("Speech
and Spillover"). Not only does Volokh blur the constitutional issues raised
by legislation like the Communications Decency Act, but he also misinforms
readers about the function and effectiveness of software-content filters--facts
that are central to understanding the public debate about regulating content on
the Net.

            There are many problems with
Volokh's First Amendment discussion, but most seem to follow from two basic
errors. First, Volokh fails to note that the Supreme Court has conditioned the
scope of the government's authority to broadly regulate constitutionally
protected content (such as nonobscene sexual content) on the specific
character of the medium distributing that content. At the risk of
oversimplifying, we may say that the court has allowed the government greater
authority to regulate "indecent" content either when broadcast (e.g., radio
broadcasting in the Pacifica case) or delivered in a manner
indistinguishable in character--to the audience, at least--from broadcasting
(e.g., cable television in this year's Denver Consortium case).

            Second, Volokh conflates
three distinct (if overlapping) categories of content: "indecent," "sexually
explicit," and (by implication) "pornographic." In doing so, he reinforces a
common confusion about the Communications Decency Act--namely, that its reach
was limited only to pornographic material. But as the judges in ACLU vs.
Reno noted, the terms of the CDA criminalized a far broader range of
speech--speech that is "indecent" or "patently offensive"--much of which is not
"sexually explicit" as those words are normally understood. (Not all speech
that's indecent or patently offensive is about sex, Howard Stern
notwithstanding.)

            The judges also observed
that the plaintiffs in ACLU vs. Reno (ranging from Microsoft and
Wired magazine to organizations such as Human Rights Watch and the
National Writers Union) were easily distinguishable from the commercial
pornographers whose dial-a-porn services were at issue in Sable
Communications vs. FCC (1989). That's why it's particularly troubling to
see Volokh cite Sable, a case about regulating minors' access to
commercial pornography, in support of a more general claim that government
has broad power to regulate nonpornographic "indecent" or "sexually explicit"
content in the interest of protecting children. (Justice White, writing for the
court in Sable, does not go so far. Instead, he relies on two cases that, like
Sable, involve pornography and minors. White never expressly states in
Sable that the government has constitutional authority to
regulate--regardless of the medium--the far broader category of speech called
"indecency.")

            These two basic legal errors
give rise to other problems with Volokh's constitutional analysis. Most
notably, he suggests compulsory labeling of online content without mentioning
the First Amendment problem of "compelled speech" that clearly would arise, and
without discussing whether such compulsory labeling would be constitutional if
imposed on books and newspapers. (Medium-specific analysis suggests it wouldn't
be, and factual record in ACLU vs. Reno seems to entail the same
conclusion about compulsory labeling on the Internet.)

            But perhaps the single most
disturbing error in his article has to do with the facts, not the law. In order
to support his thesis that technical solutions will never resolve what he sees
as a perennial "spillover" problem, Volokh attempts to raise doubts about the
effectiveness of selection/filtering software such as SurfWatch:

            
               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.
            

            What Volokh implies here
(that filters rely solely or primarily on a list of "dirty places") is wholly
false--not just about SurfWatch, but about filtering software and filtering
paradigms generally. We know of no product that operates as Volokh suggests
SurfWatch does--while many such programs do include specific lists of
objectionable sites, this is not the primary approach any of these programs
rely on to filter content . This is true even though filtering paradigms may
differ among products: SurfWatch uses multiple approaches, including keyword-
and pattern-matching algorithms; the company uses its "blocked site" list as a
supplement to its core filtering technologies. NewView's Specs for Kids
program, in contrast, doesn't use a "blocking" strategy at all--instead it
reviews and rates sites (147,000 as of this writing), and admits minors only to
those pre-approved sites. SurfWatch's continuing success during a period in
which the total number of Web sites has boomed undercuts Volokh's
generalization about the effect of the boom on these filters' effectiveness.
This makes sense--block the word "sex" in a Web address, and it doesn't matter
if the number of Web addresses including the word "sex" has increased tenfold
since last year. And it's difficult to see how the effectiveness of the Specs
for Kids approach can be diminished by the boom, even in theory.

            Volokh's analysis of
filters, together with his mandatory-labeling suggestion, also shows a lack of
awareness of the labeling infrastructure that software vendors and the rest of
the network industry are increasingly accepting as a standard--the Platform for
Internet Content Selection. PICS was developed by a cross-industry working
group coordinated by the World Wide Web Consortium, and is described in the
paper "PICS: Internet Access Controls Without Censorship," by Paul Resnick and
James Miller. This paper (to appear in Communications of the ACM ) as
well as other material on PICS can be found on the Web.

            PICS is a set of conventions
that describe formats for labeling Internet content and methods for how labels
are distributed. PICS does not dictate what the labels should say or how they
should be used. To quote Resnick and Miller, PICS is "analogous to specifying
where on a package a label should appear, and in what font it should be
printed, without specifying what it should say."

            The intent of this
flexibility is to support a wide variety of labeling systems and selection
methods. For instance, one might configure a Web browser to screen out material
that carries certain labels. This is the system imagined by Volokh, but it is
only one approach. As an alternative, one might make accessible only those Web
pages that are labeled in a particular way, for example, Web pages that carry
the "seal of approval" of various organizations. This second approach,
functionally similar to that of Specs for Kids, would address Volokh's concern
about "keeping up" with new Web sites.

            And these are only the
simplest applications; PICS was expressly designed to be an open-ended system
that permits multiple labeling services and multiple ways of using labels;
unlike the CDA, PICS can be used for purposes other than screening out sexual
or offensive content. In creating a standard for interoperability, the PICS
designers envisioned the growth of a competitive market in third-party rating
services, where the pressures of competition will help assure that current and
future labels are timely and accurate. They also envisioned a competitive
market in selection software, leading to increasingly sophisticated techniques
for using those labels. As Resnick and Miller write:

            
               Around
the world, governments are considering restrictions on on-line content. Since
children differ, contexts of use differ, and values differ, blanket
restrictions on distribution can never meet everyone's needs. Selection
software can meet diverse needs, by blocking reception, and labels are the raw
materials for implementing context-specific selection criteria. The
availability of large quantities of labels will also lead to new sorting,
searching, filtering, and organizing tools that help users surf the Internet
more efficiently.
            

            The free-market evolutionary
approach may not be perfect, but it is counterintuitive to assume, as Volokh
apparently does, that saddling the system with CDA-derived regulations could
make it more effective or efficient. If anything, such a regulation is likely
to have the opposite effect. Imposing a single, federally approved standard for
the kinds of constitutionally protected content that government can banish from
public forums in the name of protecting minors seems likelier to skew the
market. It would diminish the ability parents now have to decide for themselves
which solution is most effective. (And the marketplace of ideas wouldn't
exactly be enhanced, either.)

            
Ironically, those who rely on either Volokh's constitutional "spillover"
analysis or his assessment of software filters may feel compelled to craft laws
that ensure we never escape from the "spillover" problem: laws that needlessly
pit adults' First Amendment rights against the state's interest in protecting
children. That would be a shame, since the technical solutions that Volokh
dismisses carry the promise of avoiding his "spillover" problem altogether.
Thanks to these inexpensive and highly adaptable tools, two important social
interests--the protection of children and the preservation of First Amendment
rights--need no longer be viewed as opponents in a zero sum game.

            --Mike Godwinstaff
counsel, Electronic Frontier Foundation

            --Hal
Abelsonprofessor of computer science and engineering, Massachusetts Institute
of Technology

            
               Eugene
Volokh replies:
            

            Godwin and Abelson raise some
interesting legal points. I stand by my legal analysis, which I believe is
based on the most natural reading of the cases; I do not believe I am guilty of
any "basic legal errors" that Godwin and Abelson ascribe to me. I recognize,
though, that reasonable minds can differ on the questions involved here, much
as they generally can with regard to most genuinely contested legal
questions.

            My brief responses to their
points:

            1. As I mentioned in my
original article, it's true that one of the key
cases-- Pacifica --contained language that limited it to the broadcasting
medium. But it seems to me that Sable Communications and the relevant
part (Part III) of Denver Consortium allow the government to restrict
speech in other media, so long as the restriction is the least restrictive
means of shielding children from improper material. The Internet would, I
think, be no exception.

            2. My article expressly
pointed out that the CDA's ban on indecency does indeed apply to more than just
pornography. This is one of the things that troubles me about the CDA.

            Nonetheless, the Supreme
Court's decision in Denver Consortium seems to me to firmly stand for
the proposition that the government has a compelling interest in shielding
children from "indecent" speech: Speech that depicts or describes "sexual or
excretory activities or organs" in "patently offensive terms," whether the speech is pornographic or
not.

            3. The court's decisions seem
to me to be equally applicable to commercial distributors of indecency and
noncommercial ones. Perhaps the court can ultimately be persuaded to draw a
distinction between the two; it would, I think, be an uphill battle, but
perhaps a winnable one, and I wish free-speech hawks all the best on it. I
should note, though, that the recent federal court decision in Shea vs.
Reno (released after Godwin and Abelson's letter was written) rejected such
a distinction--whether rightly or wrongly--in the closely related context of a
vagueness analysis.

            4. Whether one looks at a
rating requirement as a speech compulsion (you must self-rate any indecent
speech) or as a speech restriction (you may not say certain things unless you
self-rate them), a rating requirement is indeed a burden on speech; I don't
believe I suggested the
contrary. But such a burden might still be upheld if it's the least
restrictive means of shielding children. I think one can make a considerably
stronger case on this score for the constitutionality of the rating requirement
than of the CDA itself. As I mentioned in my original article, I think the CDA
would probably be struck down, but my guess is that some form of self-rating
requirement would probably be upheld.

            5. As to the factual points
Godwin and Abelson raise, I refer the reader to my response to the letter from
Jay Friedland of SurfWatch. In that response, I agree that my discussion of
what SurfWatch does was an oversimplification--for which I apologize--but
explain why I believe it doesn't appreciably affect the legal analysis: The
other technological alternatives, in my view, will not constitute the "less
restrictive alternatives" needed to make the CDA unconstitutional. (The
earlier
response does not discuss in detail the PICS model, but I believe that the
points it raises are generally applicable to PICS.)

            6. Finally, as a policy
matter, I am no fan of the CDA, or even of a rating requirement. My article
focused on whether the CDA was constitutional, not on whether it was wise.
Given the choice, I'd much rather stick with private choice of privately
administered screening mechanisms.

            The heart of my argument,
though, is that none of these alternative mechanisms "carr[ies] the promise of
avoiding [the] spillover problem altogether" (in Godwin's and Abelson's words).
They doubtless decrease the problem. As I said in the article, they may
decrease it enough to make the CDA unconstitutional: "The best guess seems to
be 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
seems to me that the spillover will always be there, and the court will always
have to make the same "hard choice: sacrifice some shielding of children in
order to protect grownups, or sacrifice some access by grownups in order to
shield children." Private screening mechanisms may make the choice somewhat
easier; but I'm not persuaded that they can eliminate it entirely.

            
               But We
Got a Good Price
            

            Microsoft in the content
business? Does Bill Gates hope to buy out the top guns in the journalism field,
or is he trying to do something new here.

            I think the motto that comes
to mind is, "If you can't beat them, buy them." Congratulations, sellouts. You
have done nothing to advance the status quo. You had the opportunity to create
something unique, but SLATE is the same old stuff.

            Your
crime is going for market share, rather than creating a new market. This is not
strange, coming from Microsoft. If only you had the slightest notion of how
demented the idea of Microsoft pushing the Internet is. Buy an upgrade for your
head, before it's too late!

            --John
Williams

            

               Digislate
            

            As a silicon-enhanced
knowledge serf suffering from chronic time-deficit disorder, I just don't seem
to find enough bandwidth in a day to properly digest enlightened journalism,
much less to enjoy a little poetry. But as I slavishly grind away at the
keyboard coding my assigned arcana, I often observe my neuronic (or is it
neurotic?) operating system engaged in symmetric multitasking.

            Suppose all of SLATE's
articles featured the authors reading their visionary musings into digital
audio format. One convenience of a paper magazine that will take the digital
variety a while to match is portability. However the paper variety will never
be able to read itself to the subscriber.

            Fast-forwarding a bit to see
where this might lead, presume for a moment that the average automobile will
one day be equipped with a cellular-linked PC brain box (global positioning
system included, no extra charge). The proposed "HearSLATE" could then offer
discriminating commuters and professional drivers some intellectual refuge from
the endless tirade of mindless drivel currently broadcast by the common
carriers.

            In blunt summary (I'm running
out of time), perhaps asking us (the unwashed masses) to shell out 20 bucks a
year for the privilege of staring longer at this stinkin' monitor for an hour
or two more a week, when we'd rather bail outta this rotten sweatshop before
the sun goes down, won't be as appealing an expenditure for our meager
discretionary income as say, three pitchers of beer or a couple of baseball
game tickets. There's more free stuff available online to fill up the time when
the boss isn't around than the proxy-censor will ever let us read.

            Give us
some content-rich brainfood stereophonically fed through the audio ports while
our lower cortex is busy arranging electrons on the screen. And so you have
SLATE 's suggested revenue-enhancement for today, and as for tomorrow, see
above--and let your imagination run wild.

            --Brandon (Dilbert)
Nichols