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.

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.