Freedom of speech, shielding children, and transcending balancing

Supreme Court Review

Volumn 1997, Issue 1, 1997, Pages 141-197

  Volokh, Eugene ^a  

^a NONE

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EID: 0002214677     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1997.3109741     Document Type: Article

References (197)

1. See, for example, Sable Communications v FCC, 492 US 115 (1989); Reno v ACLU, 117 S Ct 2329 (1997); Ginsberg v New York, 390 US 629, 649-50 (1968) (Stewart concurring) (distinguishing children's rights to access speech from adults' rights); Paris Adult Theatre I v Slaton, 413 US 49, 113 (1973) (Brennan dissenting, joined by Stewart and Marshall) (arguing that obscenity is constitutionally protected "at least in the absence of distribution to juveniles"); Pope v Illinois, 481 US 497, 513, 517 (1987) (Stevens dissenting, joined by Brennan and Marshall) ("government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors"); Sable Communications v FCC, 492 US 115, 134 (1989) (Brennan dissenting in part, joined by Marshall and Stevens) ("To be sure, the Government has a strong interest in protecting children against exposure to pornographic material that might be harmful to them."). But see Ginsberg, 390 US at 650 (Douglas, joined by Black, dissenting) (arguing against any such restrictions).
2. See cases cited in Part III.A.
3. 117 S Ct 2329 (1997).
4. For example: "Senator Patrick J. Leahy . . . who was an opponent of the legislation, said, '. . . This is a victory for the First Amendment.'" Supreme Court Strikes Down Communications Decency Act, Facts on File World News Digest 473 A1 (July 3, 1997). "Free speech scored an important victory last week, when the U.S. Supreme Court ruled that freedom of expression applies to the Internet." Editorial, Denver Post E4 (July 6, 1997). See also Michael Loftin, Victory for the First Amendment, Chattanooga Times A8 (July 14, 1997).
5. For example: "Senator Patrick J. Leahy . . . who was an opponent of the legislation, said, '. . . This is a victory for the First Amendment.'" Supreme Court Strikes Down Communications Decency Act, Facts on File World News Digest 473 A1 (July 3, 1997). "Free speech scored an important victory last week, when the U.S. Supreme Court ruled that freedom of expression applies to the Internet." Editorial, Denver Post E4 (July 6, 1997). See also Michael Loftin, Victory for the First Amendment, Chattanooga Times A8 (July 14, 1997).
6. Pub L No 104-104, 110 Stat 56 (1996), codified at 47 USC § 223(d). Two other provisions barred communicating indecency "knowing that the recipient of the communication is under 18 years of age" and communicating indecency "to a specific person or persons under 18 years of age." 47 USC §§ 223(a)(1)(B), (d)(1)(A). If these provisions were interpreted narrowly, to cover only speech to a particular person whom the speaker knows to be a minor, they might well be constitutional, at least as applied to indecent speech that is also "harmful-to-minors"; Justice O'Connor so argued in her dissent. ACLU, 117 S Ct at 2354-55 (claiming that this was the best reading, and that even if the ban on indecent speech was overbroad in including more than just "harmful-to-minors" speech, it was not substantially overbroad); see Part IV.B.2.a.i (discussing distinction between "harmful-to-minors" and "indecent"). The majority struck down the provisions because it thought they could not be so narrowly read. Id at 2348-50.
7. See ACLU, 117 S Ct at 2345 ("assum[ing] arguendo" that "indecent" was synonymous with "patently offensive [depiction or description] of sexual or excretory activities or organs"); FCC v Pacifica Foundation, 438 US 726, 740-41 (1978) (accepting a similar FCC definition of "indecent").
8. Free sites can't practically use credit card numbers for verification because the verification costs money, apparently about $1 per transaction. ACLU v Reno, 929 F Supp 824, 846 finding of fact no. 99 (ED Pa 1996). If there were a way in which a cyberspace speaker could, for free, check a would-be listener's age - perhaps by checking some reliable "cyber ID" that the listener could cheaply procure for himself - the matter might be different; a requirement that cyberspace speakers check such IDs would still allow them to provide their speech without charge to adults. The Court did not believe, however, that such a scheme was possible today, 117 S Ct at 2349-50, and from my knowledge of computer software, I'm not sure how it would be possible any time in the foreseeable future. The main proposal that I've heard - that adults pay a dollar or two for an "adult ID" that they can later use, with no charge, to access any adult Web site - just won't work. Even if speakers could check the listener's ID at no cost, the very absence of a charge means that "free speech activists" could buy adult IDs and then widely post them, encouraging any interested minors to use them. The only way to effectively deter such ID sharing is by making sure that the ID owner gets charged every time the ID is used, the very thing that adult IDs supposedly avoid.
9. Justice Stevens wrote for seven Justices; Justice O'Connor, joined by Chief Justice Rehnquist, concurred in the judgment on this point, and dissented on the question discussed in note 5.
10. See FCC v Pacifica Foundation, 438 US 726 (1978) (Stevens plurality); Young v American Mini Theatres, Inc., 427 US 50 (1976) (Stevens plurality).
11. See 117 S Ct at 2344. But see Pacifica, 438 US at 745-46 (Stevens plurality) (suggesting that "patently offensive words dealing with sex and excretion" are of "slight social value").
12. Compare R.A.V. v City of St. Paul, 505 US 377, 390 n 6 (1992) (stressing that the two opinions that most clearly urged different treatment for "low-value" speech - Justice Stevens's plurality opinions in Young and Pacifica - "did not command a majority of the Court").
13. City of Renton v Playtime Theatres, Inc., 475 US 41 (1986).
14. Forsyth County v Nationalist Movement, 505 US 123, 134 (1992); see also R.A.V. v City of St. Paul, 505 US 377, 394 (1992); Boos v Barry, 485 US 312, 321 (plurality), 334 (concurrence) (1988); ACLU, 117 S Ct at 2342 ("the purpose of the CDA is to protect children from the primary effects of 'indecent' and 'patently offensive' speech, rather than any 'secondary' effect of such speech").
15. Boos v Barry, 485 US 312, 321 (1988) (plurality).
16. Thus, the interest in providing the public with a balanced presentation of the issues has been held to trump the free speech rights of broadcasters but not of newspaper publishers Compare Red Lion Broadcasting Co. v FCC, 395 US 367 (1969) (broadcast radio and television) with Miami Herald Pub. Co. v Tornillo, 418 US 241 (1974) (newspapers). The interest in shielding people from unwanted exposure to profanity has been held to trump the free speech rights of broadcasters but not of people on the street. Compare FCC v Pacifica Foundation, 438 US 726 (1978) with Cohen v California, 403 US 15 (1971). See FCC v League of Women Voters, 468 US 364 (1984) (formally acknowledging that the broadcasting test is different from the test used for other media).
17. 117 S Ct at 2343.
18. 114 S Ct at 2445 (1994).
19. A four-Justice plurality in Denver Area Educ. Telecom. Consortium v FCC, 116 S Ct 2374 (1996), did speak favorably of the broadcast indecency rules in the cable context; and the references in some Denver Area opinions to the supposed "novelty" of cable television and the concomitant need to take small steps seemed to foreshadow a similarly cautious decision about the Internet. See id at 2402 (Souter concurring) ("And as broadcast, cable, and the cyber-technology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others. . . . In my own ignorance I have to accept the real possibility that 'if we had to decide today . . . just what the First Amendment should mean in cyberspace, . . . we would get it fundamentally wrong,'" quoting Larry Lessig, The Path of Cyberlaw, 104 Yale L J 1743, 1745 (1995)); id at 2398 (Stevens concurring) ("it would be unwise to take a categorical approach to the resolution of novel First Amendment questions arising in an industry as dynamic as this"). Still, even if the Denver Area Court was in a cautious mood about new technologies, this mood had seemingly dissipated by the time of ACLU.
20. As a general matter, the "free speech price" - the burden on constitutional rights imposed by a restriction - turns not only on the constitutional value of the restricted speech, but also on any collateral costs, such as the danger that the proposed restriction will be administered unfairly, Grayned v City of Rockford, 408 US 104 (1972), or that the restriction will skew public debate. For purposes of this discussion, though, I will focus primarily on the constitutional value of the lost speech.
21. See, for example, Burson v Freeman, 504 US 191, 198 (1992) (plurality); Austin v Michigan Chamber of Commerce, 494 US 652, 655 (1990); Boos v Barry, 485 US 312, 334 (1988) (plurality); Board of Airport Comm'rs v Jews for Jesus, Inc., 482 US 569, 573 (1987); Cornelius v NAACP Legal Defense and Educ. Fund, Inc., 473 US 788, 800 (1985); United States v Grace, 461 US 171, 177 (1983); Perry Educ. Ass'n v Perry Local Educators' Ass'n, 460 US 37, 45 (1983). Some readers have suggested that these cases do not truly represent the law, and that the Court's approach to content-based restrictions comes closer to an absolute ban, with a few narrow exceptions. I agree that the Court should follow that sort of more categorical approach, and that the Court in practice does sometimes seem to do so, paying only lip service to strict scrutiny. See Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Penn L Rev 2417 (1996). In fact, my goal in this article is to suggest that the Court should depart from strict scrutiny in cases such as ACLU. Nonetheless, the Court has repeatedly asserted that strict scrutiny is the official rule, and the ACLU opinion certainly speaks the language of strict scrutiny.
22. Compare Ginsberg v New York, 390 US 629, 652-55 (1968) (Douglas dissenting) (denying the government's right to ban even knowing distribution of sexually explicit material to specific minors).
23. Sable, 492 US at 126. Some have suggested that this statement may be dictum; I don't think it is, but even if it is, it's well-considered and forceful dictum, dictum that the Court seems to contemplate lower courts will follow, and that the lower courts have indeed followed. See Dial Information Services Corp. v Thornburgh, 938 F2d 1535 (2d Cir 1991); Information Providers' Coalition v FCC, 928 F2d 866 (9th Cir 1991).
24. The opinion stresses that the Court has "repeatedly recognized the governmental interest in protecting children from harmful materials," and calls this an "important purpose." 117 S Ct at 2346. A footnote says that the law's challengers "do not dispute that the Government generally has a compelling interest in protecting minors from 'indecent' and 'patently offensive' speech," id at 2340 n 30; another part of the opinion says that the Sable Court "agreed that 'there is a compelling interest in protecting the physical and psychological well-being of minors' which extended to shielding them from indecent messages that are not obscene by adult standards," id at 2343.
25. For a more detailed discussion of the uncertainty about exactly what speech the compelling interest covers, see Part IV.B.2.a.i. 25 117 S Ct at 2346.
26. All quotes in this paragraph are from Reno, 117 S Ct at 2348 (emphasis added).
27. Even if one reads "unnecessarily" more loosely, the other two quotes remain: The Court is suggesting that the test is whether there are alternatives that would be at least as effective.
28. Of course, even this shielding will be ineffective if Internet speakers fail to properly rate their materials; but this risk of noncompliance would have been no less present with the CDA than with the self-rating scheme.
29. If need be, the government might mandate that service providers make such filtering easily available, though the market would probably do the same without government intervention.
30. See http://www.glr.com/nurse.html, a Web page that purports to give this sort of information for various kinds of shielding software; see also Declan McCullagh, The CyberSitter Diaper Change, Netly News (Dec 20, 1996) (my thanks to Declan for pointing the www.glr.com Web page out to me). Putting such instructions online is not currently illegal; it is probably even constitutionally protected speech. See Brandenburg v Ohio, 395 US 444 (1969). Even if it is not constitutionally protected, it seems hard to stop, given the ease of anonymous communication online, and the possibility of people posting the instructions from foreign countries. I don't know whether these instructions are still effective; I imagine that software manufacturers would try to change their software to prevent these disabling techniques from working. Nonetheless, my 12 years as a computer programmer lead me to believe that there will always be some way for a user to disable software that's installed on a computer that is under his control. Shielding software that's installed on a service provider's computer (e.g., shielding that's done through America Online) is harder to disable, but easier to avoid: One need only sign on to the service through the account of a friend whose parents have not turned on the shielding option.
31. See http://www.glr.com/nurse.html, a Web page that purports to give this sort of information for various kinds of shielding software; see also Declan McCullagh, The CyberSitter Diaper Change, Netly News (Dec 20, 1996) (my thanks to Declan for pointing the www.glr.com Web page out to me). Putting such instructions online is not currently illegal; it is probably even constitutionally protected speech. See Brandenburg v Ohio, 395 US 444 (1969). Even if it is not constitutionally protected, it seems hard to stop, given the ease of anonymous communication online, and the possibility of people posting the instructions from foreign countries. I don't know whether these instructions are still effective; I imagine that software manufacturers would try to change their software to prevent these disabling techniques from working. Nonetheless, my 12 years as a computer programmer lead me to believe that there will always be some way for a user to disable software that's installed on a computer that is under his control. Shielding software that's installed on a service provider's computer (e.g., shielding that's done through America Online) is harder to disable, but easier to avoid: One need only sign on to the service through the account of a friend whose parents have not turned on the shielding option.
32. See http://www.glr.com/nurse.html, a Web page that purports to give this sort of information for various kinds of shielding software; see also Declan McCullagh, The CyberSitter Diaper Change, Netly News (Dec 20, 1996) (my thanks to Declan for pointing the www.glr.com Web page out to me). Putting such instructions online is not currently illegal; it is probably even constitutionally protected speech. See Brandenburg v Ohio, 395 US 444 (1969). Even if it is not constitutionally protected, it seems hard to stop, given the ease of anonymous communication online, and the possibility of people posting the instructions from foreign countries. I don't know whether these instructions are still effective; I imagine that software manufacturers would try to change their software to prevent these disabling techniques from working. Nonetheless, my 12 years as a computer programmer lead me to believe that there will always be some way for a user to disable software that's installed on a computer that is under his control. Shielding software that's installed on a service provider's computer (e.g., shielding that's done through America Online) is harder to disable, but easier to avoid: One need only sign on to the service through the account of a friend whose parents have not turned on the shielding option.
33. The interest in shielding children isn't just an interest in shielding them from unintentional exposure; it has always been understood as an interest in shielding children even from their own intentional attempts to get harmful material. See Ginsberg v New York, 390 US 629 (1968); ACLU, 117 S Ct at 2348 (listing proposed alternatives that aim to shield children against their own will).
34. As I point out in Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 U Chi Legal F 377, 434, tagging might have a countervailing strength: People may be more willing to comply with a tagging requirement than with a general prohibition, because the personal cost of compliance to them is lower. Someone may be unwilling to refrain from indecent speech altogether (especially if he can't be punished because he's posting from abroad or is reliably anonymous), but might be happy to tag his speech so long as this still lets him communicate to adults. If this conjecture is correct, then maybe in the aggregate tagging would indeed be at least as effective as a ban. But this is quite speculative; the greater compliance with a tagging requirement may easily be outweighed by the ease with which minors can find and use unshielded computers. (Since writing the Legal Forum article in late 1995, I have come to believe that this ease of avoiding the filters will indeed be a very big factor.) In any event, the Court, the lower courts, and the briefs never even mentioned this argument.
35. One could imagine the government doing both - going after both the Web site operators and the private users, for instance, to keep kids from passing along materials they got from Web sites that are overseas and thus outside the CDA's reach. But even if the government prosecutes private users, a combined restraint on both operators and private users would be much more effective than going after private users alone.
36. One reader suggested that the Court might be conceptualizing the interest not as shielding children from all indecency, but rather as returning the world to the way it was pre-cyberspace: a place where determined minors can find indecency, but where the task is hard enough that many minors will be dissuaded from it, or will at least realize that what they're doing is bad enough that adults have tried hard to stop it. But whether or not the Court was thinking this way, the opinion contains not a hint of this approach. Moreover, the compulsory tagging alternative would not return the world to its pre-cyberspace mode: As I discuss in the text, even with a tagging requirement, minors can access online indecency much more easily than they can access, say, dial-a-porn or print indecency, because online materials (unlike phone conversations or magazines) can easily be forwarded by one child to many others.
37. The CDA's opponents also argued that "[b]ecause so much sexually explicit content originates overseas, . . . the CDA cannot be 'effective.'" See 117 S Ct at 2347 n 45 (citing Appellee American Library Ass'n et al. Brief, 1997 WL 74380 at *33-34); ACLU v Reno, 929 F Supp 824, 882 (ED Pa 1996) (separate opinion of Dalzell) (accepting this approach). The Court declined to reach this argument, and I believe the argument is unsound. Few speech restrictions can eliminate all the harm at which they're aimed - consider, for instance, copyright law, libel law, and campaign contribution restrictions, all of which are in some measure underenforced and in some measure circumventable. But the Court has never held that "narrow tailoring" requires that the law entirely accomplish the interest it's trying to serve. The Court's cases that have upheld speech restrictions under strict scrutiny - Burson v Freeman, 504 US 191 (1992) (plurality), Austin v Michigan Chamber of Commerce, 494 US 562 (1990), and Buckley v Valeo, 424 US 1 (1976) - seem to suggest that it's enough that the law advance the interest to some degree, a sensible requirement. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2429 n 56 (cited in note 35) (discussing this point). The CDA did indeed seem likely to reduce the amount of indecent material available to children. It would have deterred U.S. residents, and perhaps even foreign corporations that have American affiliates, from posting indecent material either on U.S. sites or foreign sites (merely putting the material off-shore wouldn't immunize someone who is subject to U.S. jurisdiction from CDA liability). See Daniel E. Troy and David J. Goldstone, Foreign Entities Whose Web Sites Violate U.S. Laws Relating to Drug Advertising, Securities Offerings or Obscenity May Subject American Affiliates to Prosecution, Nat'l L J (Nov 18, 1996), at B9. To avoid the CDA, an American would have to actually move overseas (and perhaps even sell all his U.S. property), something few people are willing to do. Of course, where there's money to be made, foreign content providers might take up some of the slack caused by the decrease in U.S.-based supply. But precisely because this effect would be money driven, it would largely apply to for-sale material, which generally requires credit card payment and is thus less accessible to minors. (Some sellers of indecent material do put up free teasers, but in my limited experience these have tended to be - for obvious marketing reasons - rather tamer than the for-sale matter.) And the CDA might in the long term help reduce even entirely foreign indecency; implementing the CDA in the United States might make it easier for the U.S. government to lobby other countries to follow suit. See U.S. Reply Brief in ACLU v Reno, 1997 WL 106544, *16 ("Such a law sets an example for other countries and puts the United States in a position to urge them to establish effective controls."). The reduction of the total amount of indecent material should reduce the amount of material that's easily accessible to minors. Of course, determined and Net-skilled minors could still scour the Net search engines looking for all the indecency that's available without a credit card; it's hard to protect the highly motivated and intelligent from their own appetites. But less committed or knowledgeable minors might give up when their first few searches didn't find any free matter, or might end up seeing only a little indecent material rather than a lot. And by reducing the number of new free Web sites containing indecency, the CDA would help filter manufacturers keep up with newly created Web sites (see Part III.B.3), thus making the CDA-plus-filters a considerably better shield than filters alone. This doesn't mean that the CDA would have been a perfect or even a terribly powerful tool for shielding children; wise parents would have had to rely on both the CDA and shielding software, and even that would have been imperfect. But the CDA, despite its imperfections, would have served the government interest to a considerable degree.
38. The CDA's opponents also argued that "[b]ecause so much sexually explicit content originates overseas, . . . the CDA cannot be 'effective.'" See 117 S Ct at 2347 n 45 (citing Appellee American Library Ass'n et al. Brief, 1997 WL 74380 at *33-34); ACLU v Reno, 929 F Supp 824, 882 (ED Pa 1996) (separate opinion of Dalzell) (accepting this approach). The Court declined to reach this argument, and I believe the argument is unsound. Few speech restrictions can eliminate all the harm at which they're aimed - consider, for instance, copyright law, libel law, and campaign contribution restrictions, all of which are in some measure underenforced and in some measure circumventable. But the Court has never held that "narrow tailoring" requires that the law entirely accomplish the interest it's trying to serve. The Court's cases that have upheld speech restrictions under strict scrutiny - Burson v Freeman, 504 US 191 (1992) (plurality), Austin v Michigan Chamber of Commerce, 494 US 562 (1990), and Buckley v Valeo, 424 US 1 (1976) - seem to suggest that it's enough that the law advance the interest to some degree, a sensible requirement. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2429 n 56 (cited in note 35) (discussing this point). The CDA did indeed seem likely to reduce the amount of indecent material available to children. It would have deterred U.S. residents, and perhaps even foreign corporations that have American affiliates, from posting indecent material either on U.S. sites or foreign sites (merely putting the material off-shore wouldn't immunize someone who is subject to U.S. jurisdiction from CDA liability). See Daniel E. Troy and David J. Goldstone, Foreign Entities Whose Web Sites Violate U.S. Laws Relating to Drug Advertising, Securities Offerings or Obscenity May Subject American Affiliates to Prosecution, Nat'l L J (Nov 18, 1996), at B9. To avoid the CDA, an American would have to actually move overseas (and perhaps even sell all his U.S. property), something few people are willing to do. Of course, where there's money to be made, foreign content providers might take up some of the slack caused by the decrease in U.S.-based supply. But precisely because this effect would be money driven, it would largely apply to for-sale material, which generally requires credit card payment and is thus less accessible to minors. (Some sellers of indecent material do put up free teasers, but in my limited experience these have tended to be - for obvious marketing reasons - rather tamer than the for-sale matter.) And the CDA might in the long term help reduce even entirely foreign indecency; implementing the CDA in the United States might make it easier for the U.S. government to lobby other countries to follow suit. See U.S. Reply Brief in ACLU v Reno, 1997 WL 106544, *16 ("Such a law sets an example for other countries and puts the United States in a position to urge them to establish effective controls."). The reduction of the total amount of indecent material should reduce the amount of material that's easily accessible to minors. Of course, determined and Net-skilled minors could still scour the Net search engines looking for all the indecency that's available without a credit card; it's hard to protect the highly motivated and intelligent from their own appetites. But less committed or knowledgeable minors might give up when their first few searches didn't find any free matter, or might end up seeing only a little indecent material rather than a lot. And by reducing the number of new free Web sites containing indecency, the CDA would help filter manufacturers keep up with newly created Web sites (see Part III.B.3), thus making the CDA-plus-filters a considerably better shield than filters alone. This doesn't mean that the CDA would have been a perfect or even a terribly powerful tool for shielding children; wise parents would have had to rely on both the CDA and shielding software, and even that would have been imperfect. But the CDA, despite its imperfections, would have served the government interest to a considerable degree.
39. The CDA's opponents also argued that "[b]ecause so much sexually explicit content originates overseas, . . . the CDA cannot be 'effective.'" See 117 S Ct at 2347 n 45 (citing Appellee American Library Ass'n et al. Brief, 1997 WL 74380 at *33-34); ACLU v Reno, 929 F Supp 824, 882 (ED Pa 1996) (separate opinion of Dalzell) (accepting this approach). The Court declined to reach this argument, and I believe the argument is unsound. Few speech restrictions can eliminate all the harm at which they're aimed - consider, for instance, copyright law, libel law, and campaign contribution restrictions, all of which are in some measure underenforced and in some measure circumventable. But the Court has never held that "narrow tailoring" requires that the law entirely accomplish the interest it's trying to serve. The Court's cases that have upheld speech restrictions under strict scrutiny - Burson v Freeman, 504 US 191 (1992) (plurality), Austin v Michigan Chamber of Commerce, 494 US 562 (1990), and Buckley v Valeo, 424 US 1 (1976) - seem to suggest that it's enough that the law advance the interest to some degree, a sensible requirement. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2429 n 56 (cited in note 35) (discussing this point). The CDA did indeed seem likely to reduce the amount of indecent material available to children. It would have deterred U.S. residents, and perhaps even foreign corporations that have American affiliates, from posting indecent material either on U.S. sites or foreign sites (merely putting the material off-shore wouldn't immunize someone who is subject to U.S. jurisdiction from CDA liability). See Daniel E. Troy and David J. Goldstone, Foreign Entities Whose Web Sites Violate U.S. Laws Relating to Drug Advertising, Securities Offerings or Obscenity May Subject American Affiliates to Prosecution, Nat'l L J (Nov 18, 1996), at B9. To avoid the CDA, an American would have to actually move overseas (and perhaps even sell all his U.S. property), something few people are willing to do. Of course, where there's money to be made, foreign content providers might take up some of the slack caused by the decrease in U.S.-based supply. But precisely because this effect would be money driven, it would largely apply to for-sale material, which generally requires credit card payment and is thus less accessible to minors. (Some sellers of indecent material do put up free teasers, but in my limited experience these have tended to be -for obvious marketing reasons - rather tamer than the for-sale matter.) And the CDA might in the long term help reduce even entirely foreign indecency; implementing the CDA in the United States might make it easier for the U.S. government to lobby other countries to follow suit. See U.S. Reply Brief in ACLU v Reno, 1997 WL 106544, *16 ("Such a law sets an example for other countries and puts the United States in a position to urge them to establish effective controls."). The reduction of the total amount of indecent material should reduce the amount of material that's easily accessible to minors. Of course, determined and Net-skilled minors could still scour the Net search engines looking for all the indecency that's available without a credit card; it's hard to protect the highly motivated and intelligent from their own appetites. But less committed or knowledgeable minors might give up when their first few searches didn't find any free matter, or might end up seeing only a little indecent material rather than a lot. And by reducing the number of new free Web sites containing indecency, the CDA would help filter manufacturers keep up with newly created Web sites (see Part III.B.3), thus making the CDA-plus-filters a considerably better shield than filters alone. This doesn't mean that the CDA would have been a perfect or even a terribly powerful tool for shielding children; wise parents would have had to rely on both the CDA and shielding software, and even that would have been imperfect. But the CDA, despite its imperfections, would have served the government interest to a considerable degree.
40. The CDA's opponents also argued that "[b]ecause so much sexually explicit content originates overseas, . . . the CDA cannot be 'effective.'" See 117 S Ct at 2347 n 45 (citing Appellee American Library Ass'n et al. Brief, 1997 WL 74380 at *33-34); ACLU v Reno, 929 F Supp 824, 882 (ED Pa 1996) (separate opinion of Dalzell) (accepting this approach). The Court declined to reach this argument, and I believe the argument is unsound. Few speech restrictions can eliminate all the harm at which they're aimed - consider, for instance, copyright law, libel law, and campaign contribution restrictions, all of which are in some measure underenforced and in some measure circumventable. But the Court has never held that "narrow tailoring" requires that the law entirely accomplish the interest it's trying to serve. The Court's cases that have upheld speech restrictions under strict scrutiny - Burson v Freeman, 504 US 191 (1992) (plurality), Austin v Michigan Chamber of Commerce, 494 US 562 (1990), and Buckley v Valeo, 424 US 1 (1976) - seem to suggest that it's enough that the law advance the interest to some degree, a sensible requirement. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, 2429 n 56 (cited in note 35) (discussing this point). The CDA did indeed seem likely to reduce the amount of indecent material available to children. It would have deterred U.S. residents, and perhaps even foreign corporations that have American affiliates, from posting indecent material either on U.S. sites or foreign sites (merely putting the material off-shore wouldn't immunize someone who is subject to U.S. jurisdiction from CDA liability). See Daniel E. Troy and David J. Goldstone, Foreign Entities Whose Web Sites Violate U.S. Laws Relating to Drug Advertising, Securities Offerings or Obscenity May Subject American Affiliates to Prosecution, Nat'l L J (Nov 18, 1996), at B9. To avoid the CDA, an American would have to actually move overseas (and perhaps even sell all his U.S. property), something few people are willing to do. Of course, where there's money to be made, foreign content providers might take up some of the slack caused by the decrease in U.S.-based supply. But precisely because this effect would be money driven, it would largely apply to for-sale material, which generally requires credit card payment and is thus less accessible to minors. (Some sellers of indecent material do put up free teasers, but in my limited experience these have tended to be - for obvious marketing reasons - rather tamer than the for-sale matter.) And the CDA might in the long term help reduce even entirely foreign indecency; implementing the CDA in the United States might make it easier for the U.S. government to lobby other countries to follow suit. See U.S. Reply Brief in ACLU v Reno, 1997 WL 106544, *16 ("Such a law sets an example for other countries and puts the United States in a position to urge them to establish effective controls."). The reduction of the total amount of indecent material should reduce the amount of material that's easily accessible to minors. Of course, determined and Net-skilled minors could still scour the Net search engines looking for all the indecency that's available without a credit card; it's hard to protect the highly motivated and intelligent from their own appetites. But less committed or knowledgeable minors might give up when their first few searches didn't find any free matter, or might end up seeing only a little indecent material rather than a lot. And by reducing the number of new free Web sites containing indecency, the CDA would help filter manufacturers keep up with newly created Web sites (see Part III.B.3), thus making the CDA-plus-filters a considerably better shield than filters alone. This doesn't mean that the CDA would have been a perfect or even a terribly powerful tool for shielding children; wise parents would have had to rely on both the CDA and shielding software, and even that would have been imperfect. But the CDA, despite its imperfections, would have served the government interest to a considerable degree.
41. See Part IV.B.2.a.i for a more thorough discussion of whether the interest extends only to sexually explicit "obscene-as-to-minors" material or to indecent materially more generally.
42. See New York v Ferber, 458 US 747 (1982).
43. See Part IV.2.a.ii.
44. The trial court's opinion and the Supreme Court briefs did discuss "tagging," but in the context of a very different sort of tagging provision. The CDA provided a defense for content providers who used "reasonably effective" means of preventing minors from accessing their material; at trial, the government suggested that a provider's decision to tag its material might allow it to fit within that defense. The district court correctly rejected this contention: Tagging, standing alone, is not a reasonably effective way of preventing minors from accessing the page, because so many minors use computers that don't run filtering software. The district court never decided whether the different sort of tagging proposed by the Court - a compulsory tagging requirement - would be as effective as the CDA. 40 ACLU v Reno, 929 F Supp 824, 842 finding of fact no. 73 (ED Pa 1996).
45. Shea v Reno, 930 F Supp 916 (SDNY 1996).
46. Id at 941.
47. See for example, Bill Pietrucha, ACLU Wary of White House Censorship Goals, News-bytes (July 17, 1997), describing ACLU's hostility to even a noncompulsory universal self-rating system.
48. U.S. Brief, 1997 WL 32931, *40; see also id at *23.
49. U.S. Reply Brief, 1997 WL 106544, *13. See also Amicus Brief of Family Life Project, 1997 WL 22917, *19.
50. ACLU Brief, 1997 WL 74378, *36. But see American Library Ass'n Brief, 1997 WL 74380, *34-35 (arguing that filtering was indeed at least as effective as the CDA).
51. 117 S Ct at 2346.
52. Bose Corp. v Consumer Union, 466 US 485, 502 (1984); Ornelas v United States, 116 S Ct 1657, 1662 (1996) (same as to the Fourth Amendment); Thompson v Keohane, 116 S Ct 457, 466-67 (1995) (same as to Miranda cases).
53. For example, Burson v Freeman, 504 US 191, 198 (1992) (plurality); Simon & Schuster, Inc. v Members of the N.Y. State Crime Victims Board, 502 US 105, 118 (1991); Perry Education Ass'n v Perry Local Educators' Ass'n, 460 US 37, 45 (1983). See Board of Trustees v Fox, 492 US 469, 476 (1989) ("If the word 'necessary' is interpreted strictly, [a requirement that restrictions may be no more expansive than 'necessary'] would translate into the 'least-restrictive-means' test").
54. Burson v Freeman, 504 US 191, 206 (1992) (plurality); Buckley v Valeo, 424 US 1, 28 (1976) (disclosure of contributions is not an adequate means of preventing corruption or appearance of corruption because "Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption").
55. See, for example, Information Providers' Coalition v FCC, 928 F2d 866, 873 (9th Cir 1991) (concluding that a proposed alternative was inadequate because it "does not completey bar or totally impede" access by minors to indecency, and because it "'would be insufficient to achieve realistically the goal of the statute: the protection of children'"); Blount v SEC, 61 F3d 938, 944 (DC Cir 1995) (speech restrictions are constitutional if they effectively advance a compelling interest, and are "narrowly tailored to advance the compelling interests asserted, i.e., . . . less restrictive alternatives to the rule would accomplish the government's goals equally or almost equally effectively").
56. Maine v Taylor, 477 US 131 (1986) (upholding state law that discriminated against interstate commerce under strict scrutiny because there was "no reason to believe that [a less restrictive alternative] would protect [the government interest] as effectively as a ban"); American Party of Texas v White, 415 US 767, 781 (1974) (upholding ballot access restriction under strict scrutiny because the law was a measure "taken in pursuit of vital state objectives that cannot be served equally well in significantly less burdensome ways"); see also Hernandez v New York, 500 US 352, 377 (1991) (Stevens dissenting) ("the State cannot make race-based distinctions if there are equally effective nondiscriminatory alternatives"); Storer v Brown, 415 US 724, 761 (1974) (Brennan dissenting) ("Naturally, the Constitution does not require the State to choose ineffective means to achieve its aims"; applying strict scrutiny to ballot access restriction); Globe Newspaper Co. v Superior Court, 457 US 596, 606-09 (1982) (holding that right of access to criminal trials may "not be restricted except where necessary to protect the State's interest," and striking down the law because the "interest could be served just as well" by a less restrictive alternative).
57. See, for example, Dial Information Services Corp. v Thornburgh, 938 F2d 1535, 1541 (2d Cir 1991) ("in order for [challengers of a dial-a-porn restriction] to prevail, it must be determined that there are other approaches less restrictive than the [challenged law] but just as effective in achieving its goal of denying access by minors to indecent dial-a-porn messages"); In re NBC v Cooperman, 116 AD2d 287, 293, 501 NYS2d 405, 409 (1986) (prior restraints may not be imposed without "a determination that less restrictive alternatives would not be just as effective in assuring the defendant a fair trial").
58. Denver Area Educ. Telecom. Consortium v FCC, 116 S Ct 2374, 2392 (1996); ACLU's Brief in Reno v ACLU, 1997 WL 74378, *36.
59. 352 US 380 (1957); see Part III.E.
60. One reader suggested that the ACLU opinion should be read not for its literal language, but for its general "mood": Put together with the opinions handed down the same week in City of Boerne v Flores, 117 S Ct 2157 (1997), and Printz v United States, 117 S Ct 2365 (1997), ACLU sends Congress a general signal to pay more attention to what it's doing, and to not pass popular but ill-considered feel-good legislation that jeopardizes important constitutional principles. This, though, strikes me as an entirely unsound approach for the Court to take: I don't believe that anything in the Constitution gives the Court a license to strike down laws just because it thinks that Congress hasn't thought hard enough about them. Moreover, if the Court does this, it should at least explain that this is what it is doing, and give Congress some sense of just how much consideration and what kind of consideration Congress must give to statutes like this one. Even if Justice Stevens takes this sort of approach to constitutional adjudication, I would be amazed if all the other Justices in the majority - including Justices Scalia and Thomas - take the same view. Compare Sable Communications v FCC, 492 US 115, 133 (1989) (Scalia concurring) ("Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote.").
61. Denver Area, 116 S Ct at 2393. See also Blount v SEC, 61 F3d 938, 944 (DC Cir 1995) (speech restrictions are constitutional if they effectively advance a compelling interest, and are "narrowly tailored to advance the compelling interests asserted, i.e., . . . less restrictive alternatives to the rule would accomplish the government's goals equally or almost equally effectively"); and see, in another strict scrutiny context, Wygant v Jackson Board of Educ., 476 US 267, 280 n 6 (1986) (interpreting "narrowly tailored" as mandating an inquiry into whether there are less restrictive means that "promote the substantial interest about as well and at tolerable administrative expense").
62. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2418-24 (cited in note 20), which cites more cases that establish this as the test and explains the test in more detail. See also id at 2438-40 (responding to the argument that strict scrutiny includes a "balancing" component).
63. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2418-24 (cited in note 20), which cites more cases that establish this as the test and explains the test in more detail. See also id at 2438-40 (responding to the argument that strict scrutiny includes a "balancing" component).
64. Compare Dial Information Services Corp. v Thornburgh, 938 F2d 1535, 1541 (2d Cir 1991) ("in order for [challengers of a dial-a-porn restriction] to prevail, it must be determined that there are other approaches less restrictive than the [challenged law] but just as effective in achieving its goal of denying access by minors to indecent dial-a-porn messages"); In re NBC v Cooperman, 116 AD2d 287, 293, 501 NYS2d 405, 409 (1986) (prior restraints may not be imposed without "a determination that less restrictive alternatives would not be just as effective in assuring the defendant a fair trial").
65. See note 49.
66. 117 S Ct at 2348.
67. See, for example, Thomas Goetz, The CDA Next Time, Village Voice 33 (July 8, 1997).
68. Riley v National Federation of the Blind, 487 US 781 (1988). But see Meese v Keene, 481 US 465 (1987) (concluding, with no discussion of the compelled speech question, that a requirement that foreign-financed films he labeled "propaganda" does not violate the First Amendment). Meese v Keene seems to me to be an outlier. See Harry T. Edwards and Mitchell N. Berman, Regulating Violence on Television, 89 Nw U L Rev 1487, 1509-10 (1995) (suggesting that Meese is hard to square with the rest of compelled speech caselaw, and that it can best be read as a narrow support for "value-neutral and connotatively empty" tagging, which would not include ratings that "isolate and foreground one aspect or theme of a program"); Rodney A. Smolla, Smolla and Nimmer of Freedom of Speech § 19:7 (Clark Boardman Callaghan, 1994) (criticizing Meese as "deeply fraudulent").
69. Riley v National Federation of the Blind, 487 US 781 (1988). But see Meese v Keene, 481 US 465 (1987) (concluding, with no discussion of the compelled speech question, that a requirement that foreign-financed films he labeled "propaganda" does not violate the First Amendment). Meese v Keene seems to me to be an outlier. See Harry T. Edwards and Mitchell N. Berman, Regulating Violence on Television, 89 Nw U L Rev 1487, 1509-10 (1995) (suggesting that Meese is hard to square with the rest of compelled speech caselaw, and that it can best be read as a narrow support for "value-neutral and connotatively empty" tagging, which would not include ratings that "isolate and foreground one aspect or theme of a program"); Rodney A. Smolla, Smolla and Nimmer of Freedom of Speech § 19:7 (Clark Boardman Callaghan, 1994) (criticizing Meese as "deeply fraudulent").
70. Riley v National Federation of the Blind, 487 US 781 (1988). But see Meese v Keene, 481 US 465 (1987) (concluding, with no discussion of the compelled speech question, that a requirement that foreign-financed films he labeled "propaganda" does not violate the First Amendment). Meese v Keene seems to me to be an outlier. See Harry T. Edwards and Mitchell N. Berman, Regulating Violence on Television, 89 Nw U L Rev 1487, 1509-10 (1995) (suggesting that Meese is hard to square with the rest of compelled speech caselaw, and that it can best be read as a narrow support for "value-neutral and connotatively empty" tagging, which would not include ratings that "isolate and foreground one aspect or theme of a program"); Rodney A. Smolla, Smolla and Nimmer of Freedom of Speech § 19:7 (Clark Boardman Callaghan, 1994) (criticizing Meese as "deeply fraudulent").
71. Some filters have options - which I call "clean-list filtering" - that allow access only to material that's been explicitly found to be clean, and can thus shield children from any material that hasn't yet been checked. See Response of Appellees ALA et al, No 96-511, at 23. But precisely because a child can see a page only if it's been certified clean, any such program will give children access to only a fraction of the clean material on the Web. Screeners almost certainly couldn't check even close to all the existing Web resources, and any new resources, including new pages at existing sites, might go unchecked for a long time. Clean-list filters thus may shield children better than compulsory tagging, but only at the price of rendering Internet access largely useless to them. I don't think the government must accept such an access-crippling alternative as being pretty much equally effective. See Volokh, Freedom of Speech in Cyberspace from a Listener's Perspective, 1996 U Chi Legal F at 431 and n 183 (cited in note 32) (giving more detailed argument). But compare ACLU v Reno, 929 F Supp 824, 883 (ED Pa 1996) (Dalzell concurring in the judgment) (suggesting that parents could, as an alternative to the CDA, just "deny their children the opportunity to participate in the medium until they reach an appropriate age").
72. Sable, 492 US at 128 (mentioning credit card alternative); Information Providers' Coalition v FCC, 928 F2d 866 (9th Cir 1991) (discussing both alternatives in detail); Dial Information Services Corp. v Thornburgh, 938 F2d 1535 (2d Cir 1991) (same).
73. Of course, one could tape-record a dial-a-porn conversation, make copies, and hand them out to friends, but compare to this the ease with which one can download an image and then instantly forward it by e-mail. 68 Sable, 492 US at 130.
74. The estimates vary, and are likely to change considerably over time. The estimate to which I refer puts the number at 6.7 million. Kids Online: Evolving from a Niche, Jupiter Communications Interactive Content (June 1, 1997) ("Currently, 6.7 million or 11 percent of all children between the ages of two and 17 access the Internet from home. Jupiter projects that this number will swell to more than 20.3 million or 31 percent by 2002."). The same research firm estimated the number at 4 million in 1996. Lawrie Mifflin, New Guidelines on Net Ads for Children, NY Times D5 (April 21, 1997); see also Internet Working Group Meeting, National Association of Attorneys General Consumer Protection Report (July 1996) (using estimate of 3.8 million); David Haves, Child-Friendly Internet Sites: Fine Fun, or Sly Salesmanship? Kansas City Star A1 (March 29, 1996) ("as many as 4 million children have access to the Internet and 1 million use it regularly").
75. The estimates vary, and are likely to change considerably over time. The estimate to which I refer puts the number at 6.7 million. Kids Online: Evolving from a Niche, Jupiter Communications Interactive Content (June 1, 1997) ("Currently, 6.7 million or 11 percent of all children between the ages of two and 17 access the Internet from home. Jupiter projects that this number will swell to more than 20.3 million or 31 percent by 2002."). The same research firm estimated the number at 4 million in 1996. Lawrie Mifflin, New Guidelines on Net Ads for Children, NY Times D5 (April 21, 1997); see also Internet Working Group Meeting, National Association of Attorneys General Consumer Protection Report (July 1996) (using estimate of 3.8 million); David Haves, Child-Friendly Internet Sites: Fine Fun, or Sly Salesmanship? Kansas City Star A1 (March 29, 1996) ("as many as 4 million children have access to the Internet and 1 million use it regularly").
76. The estimates vary, and are likely to change considerably over time. The estimate to which I refer puts the number at 6.7 million. Kids Online: Evolving from a Niche, Jupiter Communications Interactive Content (June 1, 1997) ("Currently, 6.7 million or 11 percent of all children between the ages of two and 17 access the Internet from home. Jupiter projects that this number will swell to more than 20.3 million or 31 percent by 2002."). The same research firm estimated the number at 4 million in 1996. Lawrie Mifflin, New Guidelines on Net Ads for Children, NY Times D5 (April 21, 1997); see also Internet Working Group Meeting, National Association of Attorneys General Consumer Protection Report (July 1996) (using estimate of 3.8 million); David Haves, Child-Friendly Internet Sites: Fine Fun, or Sly Salesmanship? Kansas City Star A1 (March 29, 1996) ("as many as 4 million children have access to the Internet and 1 million use it regularly").
77. The estimates vary, and are likely to change considerably over time. The estimate to which I refer puts the number at 6.7 million. Kids Online: Evolving from a Niche, Jupiter Communications Interactive Content (June 1, 1997) ("Currently, 6.7 million or 11 percent of all children between the ages of two and 17 access the Internet from home. Jupiter projects that this number will swell to more than 20.3 million or 31 percent by 2002."). The same research firm estimated the number at 4 million in 1996. Lawrie Mifflin, New Guidelines on Net Ads for Children, NY Times D5 (April 21, 1997); see also Internet Working Group Meeting, National Association of Attorneys General Consumer Protection Report (July 1996) (using estimate of 3.8 million); David Haves, Child-Friendly Internet Sites: Fine Fun, or Sly Salesmanship? Kansas City Star A1 (March 29, 1996) ("as many as 4 million children have access to the Internet and 1 million use it regularly").
78. This may only be a small fraction of all children, but the important point is that it's a high number: If the interest in shielding children is indeed compelling, then the fact that 600,000 children out of 6 million are unshielded is a serious problem, even if the 5.4 million other children are being shielded.
79. 352 US 380 (1957).
80. Id at 383.
81. Sable Communications v FCC, 492 US 115, 126 (1989).
82. For example, Blount v SEC, 61 F3d 938 (DC Cir 1995).
83. 352 US at 383.
84. Butler didn't have to ask whether there were pretty much equally effective alternatives, because it was decided before the Court began to apply the strict scrutiny framework to speech restrictions.
85. 117 S Ct at 2346.
86. 492 US at 126. The "regulation" at issue in Sable was in fact a total ban on indecent speech in a particular medium.
87. Of course, the value lost by the speech restriction includes not just the value of the lost speech itself, but also the risk of unfair application of the restriction, the risk that public debate will be skewed by the restriction, and various other costs. See note 19.
88. An oversimplification, but close enough for our purposes.
89. See, for example, Grayned v City of Rockford, 408 US 104, 108 (1972) (condemning vague speech restrictions because they invite "arbitrary and discriminatory enforcement"); Smith v Goguen, 415 US 566, 574-76 (1974) (same).
90. 395 US 444 (1969). Of course, the Brandenburg formula itself has some play in its joints; I claim only that it's more concrete than simple "balancing," not that it's mechanical.
91. See Melville B. Nimmer, Nimmer on Freedom of Speech: A Treatise on the First Amendment § 2.02 (1984) (praising categorical balancing as a substitute for ad-hoc balancing in the First Amendment context); Kathleen M. Sullivan, The Supreme Court 1991 Term, Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 69, 83-95 (1992) (noting how the Court translates mushy abstract principles into more administrable, even if somewhat less theoretically satisfying, categorical rules); Alex Kozinski and Eugene Volokh, A Penumbra Too Far, 106 Harv L Rev 1639, 1644-45, 1651-53 (1993) (same).
92. See Melville B. Nimmer, Nimmer on Freedom of Speech: A Treatise on the First Amendment § 2.02 (1984) (praising categorical balancing as a substitute for ad-hoc balancing in the First Amendment context); Kathleen M. Sullivan, The Supreme Court 1991 Term, Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 69, 83-95 (1992) (noting how the Court translates mushy abstract principles into more administrable, even if somewhat less theoretically satisfying, categorical rules); Alex Kozinski and Eugene Volokh, A Penumbra Too Far, 106 Harv L Rev 1639, 1644-45, 1651-53 (1993) (same).
93. See Melville B. Nimmer, Nimmer on Freedom of Speech: A Treatise on the First Amendment § 2.02 (1984) (praising categorical balancing as a substitute for ad-hoc balancing in the First Amendment context); Kathleen M. Sullivan, The Supreme Court 1991 Term, Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22, 69, 83-95 (1992) (noting how the Court translates mushy abstract principles into more administrable, even if somewhat less theoretically satisfying, categorical rules); Alex Kozinski and Eugene Volokh, A Penumbra Too Far, 106 Harv L Rev 1639, 1644-45, 1651-53 (1993) (same).
94. See cases cited in Part II.B.
95. This approach actually represents a family of possible tests, which differ in the degree to which they would tolerate some sacrifice of shielding. One possible test would say that any restriction is constitutional so long as there are no alternatives that are less restrictive but genuinely equally effective. Other tests may say that a restriction is constitutional only it all the alternatives are substantially less effective, with different definitions of "substantial." Likewise, the other approaches I describe below also represent families of possible tests.
96. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
97. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
98. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
99. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
100. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
101. Gerald Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1, 8 (1972); compare Bernal v Fainter, 467 US 216, 219 n 6 (1984) (citing Gunther). See, for example, Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46, 53 (1987) ("Strict scrutiny almost invariably results in invalidation of the challenged restriction."); Roger Pilon, A Court Without a Compass, 40 NY L Sch L Rev 999, 1006 (1996) ("strict scrutiny . . . lead[s] almost invariably to a finding of unconstitutionality"); Richard G. Wilkins, Richard Sherlock, and Steven Clark, Mediating the Polar Extremes: A Guide to Post-Webster Abortion Policy, 1991 BYU L Rev 403, 420-21 (" 'strict scrutiny' [in, among other things, free speech cases] almost always results in a finding of constitutional invalidity"); Book Note, Freedom to Offend, 105 Yale L J 1415, 1417 (1996) ("strict scrutiny, a process that is almost always fatal to the regulation").
102. See Part III.A.
103. Some suggest that strict scrutiny includes a "cost-benefit weighing" as part of the test itself, but I do not believe this is so. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2438-40 (cited in note 20).
104. 424 US 1, 25-28, 45 (1976). Of course, most effective speech to a mass audience, except perhaps some kinds of cyberspace speech, costs far more than $1,000.
105. 494 US 652 (1990).
106. 504 US 191 (1992).
107. 487 US 781, 799 n 11 (1988) (dictum, but confident- and considered-sounding dictum, saying that it was permissible to compel fundraisers to disclose that they were professionals, though not permissible to compel them to disclose what fraction of the collected funds went to the charity). Compare id at 803-04 (Scalia concurring in part and in the judgment) (disagreeing with the Court's approval of such speech compulsions).
108. 492 US 115, 128-31 (1989) (pointing out that a total ban was unnecessary because lesser speech restrictions would do a pretty much equally good job).
109. Dial Information Service Corp. v Thornburgh, 938 F2d 1535 (2d Cir 1991) (upholding such restrictions under strict scrutiny); Information Providers' Coalition v FCC, 928 F2d 866 (9th Cir 1991) (same).
110. Bering v Share, 106 Wash 2d 212, 234, 241, 245, 721 P2d 918, 931, 935, 937 (1986), cert dismissed for want of jurisdiction, 479 US 1050 (1986).
111. State v Christian Action Network, 491 SE2d 61 (W Va 1997) (upholding, despite Riley, a requirement that all printed solicitations include the statement "West Virginia residents may obtain a summary of the registration and financial documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305. Registration does not imply endorsement.").
112. Griset v Fair Political Practices Comm'n, 8 Cal 4th 851, 884 P2d 116, 35 Cal Rptr 2d 659 (1994) (upholding a ban on anonymous mailings by candidates to prospective voters, on the grounds that this serves the compelling interest in "a well-informed electorate"), cert denied, 514 US 1083 (1995). The case was held pending McIntyre v Ohio Elections Comm'n, 514 US 334 (1995) - a decision that struck down a ban on anonymous fliers related to ballot measures - but the Court then denied cert. Note that Griset was not justified as a means of avoiding corruption of candidates; it involved speech by the candidate's own committee, not an anonymous contribution to the candidate.
113. Schirmer v Edwards, 2 F3d 117 (5th Cir 1993). Burson v Freeman upheld only a 100-foot buffer zone.
114. In re Kaiser, 111 Wash 2d 275, 288-89, 759 P2d 392, 399-400 (1988) (compelling interests in preserving the "good reputation of the judiciary" and the "integrity of the judiciary" justify restricting a judicial candidate's "statements of party affiliation [and] statements regarding the motives of [an opponent's] attorney supporters"); In re Complaint Against Harper, 77 Ohio St 3d 211, 225, 673 NE2d 1253, 1265 (1996) (holding that "truthful criticism of the judiciary in a dignified manner" is protected but only "so long as the criticism is done fairly, accurately, and upon facts, not false representations").
115. American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990); Crawford v Lungren, 96 F3d 380 (9th Cir 1996).
116. Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417, especially 2441-43 (cited in note 20).
117. Such rights are common in existing constitutional jurisprudence: The privilege against self-incrimination, the Double Jeopardy Clause, and the Ex Post Facto Clause, for instance, cannot be overcome by showing a compelling interest. Even if enforcing the Double Jeoppardy Clause will set some murderers free to kill again, the judgment embodied in the Clause prevails: The release of some who might be guilty is a harm that must be accepted in order to get the benefits that the constitutional guarantee provides. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2456 (cited in note 20).
118. I intentionally say "unsuitable for minors," instead of "indecent" or "obscene as to minors," to refer to whatever definition of unsuitability the Court chooses to use. I argue in Part IV.B.2.a.i that indecent (but not obscene-as-to-minors) speech should not be seen as unsuitable for minors; but my general "substantial burden is unconstitutional" framework can work no matter where the Court draws the unsuitability line.
119. See, for example Riley v National Federation of the Blind, 487 US 781 (1988) (using strict scrutiny to strike down requirement - which the Court treated as equivalent to a content-based restriction - that charitable fundraisers reveal the fraction of collected funds that are actually given to the charity); Carey v Brown, 447 US 455 (1980) (using strict scrutiny to strike down content-based restriction on nonlabor picketing, though the restriction applied only to residential picketing). I agree these restrictions should be viewed with serious, concern; I only suggest that these are fairly slight restrictions.
120. See Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2444-52 (cited in note 20).
121. 117 S Ct at 2344, 2347-48.
122. See, for example, Florida Star v B.J.F., 491 US 524, 532 (1989) (quoting Near v Minnesota, 283 US 697 (1931), for the proposition that "publication of the sailing dates of transports or the number and location of troops" might be unprotected); Haig v Agee, 453 US 280, 309 (1981) (revelation of the names of U.S. intelligence agents that has "the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel" is "clearly not protected by the Constitution"); United States v Progressive, Inc., 467 F Supp 990 (WD Wis 1979) (holding that instructions for creating H-bombs may be restrained). But see New York Times v United States, 403 US 713 (1971), striking down an injunction against publication of The Pentagon Papers; though this case theoretically left open the possibility that the Times might be criminally punished for the publication, many now assume that publications such as this are constitutionally protected.
123. See Brandenburg v Ohio, 395 US 444 (1969). One might argue that advocacy intended at producing imminent and likely unlawful conduct is constitutionally valueless, but I doubt it: It seems to me no less valuable in the abstract than advocacy aimed at producing unlawful Conduct at some future date. The Brandenburg exception seems to me to be justified by the gravity of the harm the speech can produce, rather than by its perceived lack of value. 109 Compare City of Richmond v J.A. Croson Co., 488 US 469, 520 (1989) (Scalia concurring) (proposing near-absolute ban on race classifications, but suggesting that "a social emergency rising to the level of imminent danger to life and limb - for example, a prison race riot, requiring temporary segregation of inmates - can justify an exception to the [color-blindness] principle"); Lee v Washington, 390 US 333, 334 (1968) (Black concurring) (taking a similar view).
124. I refer here only to restrictions imposed by the government as sovereign, rather than the government acting as employer, K-12 educator, proprietor of a nonpublic forum, and so on. For the usual reasons, I think the government properly has more power to control its own money and its own property than to control the behavior of private persons.
125. See Pacifica, 438 US at 767-75 (Brennan dissenting).
126. 505 US 833 (1992). Under Casey's substantial burden test, a law is unconstitutional if it has the effect of creating a substantial burden or if it was intended to create such a burden. I would not borrow the intent inquiry from Casey, because it seems both difficult to apply (perhaps even inherently indeterminate) and rarely dispositive.
127. Jimmy Swaggart Ministries v Board of Equalization, 493 US 378 (1990) (religious freedom); Roberts v U.S. Jaycees, 468 US 609 (1984) (right of expressive association); Zablocki v Redhail, 434 US 374 (1978) (right to marry). But see Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev at 2449-50 (cited in note 20) (suggesting that in some religious freedom contexts, the Court applies a rule of per se invalidation, rather than strict scrutiny).
128. See Gertz v Robert Welch, Inc., 418 US 323, 340 (1974) ("there is no constitutional value in false statements of fact"). But see New York Times Co. v Sullivan, 376 US 254, 291-92 (1964) (suggesting that even knowing falsehoods about the government generally, rather than about a particular government official, might be constitutionally protected).
129. See, for example, Sullivan; Gertz. ,
130. Sullivan, 376 US at 254; see also Gertz, 418 US at 323 (requiring "actual malice" for punitive or presumed damages even when the plaintiff is a private figure).
131. In this section, I assume that less-than-substantial burdens would be considered per se constitutional (or subjected to rational basis scrutiny, which if honestly applied is tantamount to the same thing). Nonetheless, the Court might also decide that even such slightly burdensome restrictions should be subjected to some serious scrutiny; this is explored in Pan IV.B.3.
132. Ginsberg v New York, 390 US 629 (1968). Ginsberg involved a somewhat different formulation of the obscenity standard than is now the law after Miller v California, 413 US 15 (1973); however, it seems fair to assume that Ginsberg still stands, but with the three prongs modified to match the three-prong Miller test. See, for example, ACLU, 117 S Ct at 2356 (O'Connor dissenting in part); Virginia v American Booksellers Ass'n, Inc., 484 US 383, 387 (1988) (discussing a state statute whose "definition of 'harmful to juveniles' is a modification of the Miller definition of obscenity, adapted for juveniles"). 119 Erznoznik v City of Jacksonville, 422 US 205, 213 and n 10 (1975 ).
133. Right or wrong, that's what Miller held.
134. Of course, the "obscene-as-to-minors" test poses formidable practical problems, because what's suitable for a 17-year-old may not be suitable for a 7-year-old. In theory, the proper approach would be to apply to each minor a test that's based on that minor's age: A bookseller selling to a 15-year-old would thus have to ask whether die material is "obscene as to 15-year-olds," and a Web page owner required to tag his page would have to tag it with something like "obscene as to 12-year-olds but permissible for 13-year-olds." Practically, though, such fine rating is extremely difficult, and imposes far too high a burden on speakers and distributors. An alternative is to have a uniform standard for all minors, but should the standard be what's suitable for 17-year-olds, which would underprotect younger children, or what's suitable for 7-year-olds, which would overrestrict speech to older children? These are difficult problems, and might counsel against having any sort of obscene-as-to-minors test. Ginsberg, though, seems to require us to muddle through with this inquiry as best we can.
135. 438 US 726, 739 (1978).
136. Sable, 492 US at 125.
137. Compare 117 S Ct at 2340 n 30 (stating that the CDA's challengers "do not dispute that the Government generally has a compelling interest in protecting minors from 'indecent' and 'patently offensive' speech") and id at 2343 (stating that Sable "agreed that 'there is a compelling interest in protecting the physical and psychological well-being of minors' which extended to shielding them from indecent messages that are not obscene by adult standards") with id at 2348 (neither accepting nor rejecting the argument that the First Amendment may tolerate "a blanket prohibition on all 'indecent' and 'patently offensive' messages communicated to a 17-year-old").
138. See Pacifica, 438 US at 749 (Stevens plurality) ("Bookstores and motion picture theaters . . . may be prohibited from making indecent material available to children").
139. 117 S Ct at 2344.
140. See Action for Children's Television v FCC 852 F2d 1332, 1340 n 13 (DC Cir 1988).
141. 390 US at 639 (stressing that "the prohibition against sales to minors does not bar parents who so desire from purchasing the [obscene-to-minors] magazines for their children").
142. 117 S Ct at 2341 (stressing that "the statute upheld in Ginsberg was narrower than the CDA [in part because] 'the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children'"); id at 2348 (describing "possible alternatives such as requiring that indecent material be 'tagged' in a way that facilitates parental control of material coming into their homes" and "providing some tolerance for parental choice"). But see id at 2356-57 (O'Connor dissenting in part) (suggesting that there is "no support [in the record] for the legal proposition that [e-mail between family members is] absolutely immune from regulation").
143. 390 US at 639-40. ACLU did not squarely confront this distinction, speaking generally of a "governmental interest in protecting children from harmful materials." 131 Meyer v Nebraska, 262 US 390 (1923); Pierce v Society of Sisters, 268 US 510 (1925).
144. This obviously involves a tough and subjective call about how harmful various behaviors are to children, but such calls are inevitable whenever one accepts the notion of broad but not unlimited parental rights. See, for example, Meyer v State of Nebraska, 262 US 390, 402-03 (1923); Pierce v Society of Sisters, 268 US 510, 534-35 (1925); Prince v Massachusetts, 321 US 158, 166-67 (1944). Compare Justice Holmes's thoughtful dissent in Bartels v Iowa, 262 US 404 (1923), a companion case to Meyer. 133 Ginsberg, 390 US at 644.
145. 117 S Ct at 2344.
146. Id at 2346 ("Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.").
147. Ginsberg, 390 US at 646, quoting N Y Pen L § 484-h(1)(g).
148. See Stone, Content-Neutral Restrictions, 54 U Chi L Rev at 105-09 (cited in note 86) (distinguishing incidental restrictions that aim at broad classes of conduct from restrictions that target speech); Arcara v Cloud Books, Inc., 478 US 697, 706-07 (1986) (same).
149. See Stone, Content-Neutral Restrictions, 54 U Chi L Rev at 105-09 (cited in note 86) (distinguishing incidental restrictions that aim at broad classes of conduct from restrictions that target speech); Arcara v Cloud Books, Inc., 478 US 697, 706-07 (1986) (same).
150. See text accompanying note 150.
151. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189, 225-27 (1983).
152. Pacifica, 438 US at 726, hinted that the rule might he different during the times of day when children are unlikely to be in the audience. Action for Children's Television v FCC, 932 F2d 1504 (DC Cir 1991), struck down a 24-hour ban on indecency; Action for Children's Television v FCC, 58 F3d 654 (DC Cir 1995) (en banc), held that it would be constitutional for the FCC to limit indecent broadcasts to the hours from 12 midnight to 6 A.M.
153. See Edwards and Berman, Regulating Violence on Television, 89 Nw U L Rev at 1509-10 (cited in note 64).
154. This general test should, I believe, be applicable to all media; nonetheless, it might play out somewhat differently in different contexts. Some media, for instance, might generally be less rime sensitive than others, so certain delays may be substantial burdens in one medium but not in another. See, for example, the text accompanying note 150. Likewise, in some new media, predicting the effect of a regulation may be hard enough that the magnitude of the burden would be even more uncertain than it usually is. In these situations, a court might choose to err on the side of striking the regulation down unless it's fairly clear that it will not be substantially burdensome.
155. 438 US at 760. See also id at 750 n 28 (plurality) ("Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words.").
156. 117 S Ct at 2350.
157. As this discussion suggests, I disagree with the Pacifica holding, and find it hard to reconcile with ACLU. Justice Stevens tried to distinguish Pacifica in ACLU by arguing that "The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities," id at 2347, but this is just plain wrong. The Ginsberg law was not limited to commercial speech: Sales of magazines do not qualify as commercial speech; see Virginia State Bd of Pharmacy v Virginia Citizens Consumer Council, Inc., 425 US 748, 761 (1976)). The Pacifica regulation was not limited either to commercial speech or commercial entities; in fact, the broadcast at issue in Pacifica was noncommercial speech carried by a nonprofit, noncommercial radio station. See FCC v League of Women Voters, 468 US 364, 370 (1984) ("Appellee Pacifica Foundation is a nonprofit corporation that owns and operates several noncommercial educational broadcasting stations"; I believe that Pacifica has been nonprofit since its founding, and know of no evidence that it changed character from 1978 to 1984)). Justice Stevens's other attempts to distinguish Pacifica from ACLU, 117 S Ct at 2342, are not as obviously factually wrong, but still strike me as unpersuasive.
158. American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990). See Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L J 867, 952 (1994); Gillian E. Metzger, Note, Unburdening the Undue Burden Standard: Orienting Casey in Constitutional Jurisprudence, 94 Colum L Rev 2025, 2064 (1994).
159. American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990). See Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L J 867, 952 (1994); Gillian E. Metzger, Note, Unburdening the Undue Burden Standard: Orienting Casey in Constitutional Jurisprudence, 94 Colum L Rev 2025, 2064 (1994).
160. American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990). See Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L J 867, 952 (1994); Gillian E. Metzger, Note, Unburdening the Undue Burden Standard: Orienting Casey in Constitutional Jurisprudence, 94 Colum L Rev 2025, 2064 (1994).
161. Compare Susan H. Williams, Content Discrimination and the First Amendment, 139 U Pa L Rev 615, 716-17 (1991); see also id at 642 ("[T]he Court believes that if adequate alternative channels of communication remain, then a regulation restricting a particular alternative will have no more than a minimal effect on speech. This test can also have degrees of strictness. The Court has sometimes described the requirement as one of ample alternative channels, which appears to set a high standard. In practice, however, the Court has often applied an 'adequate' alternatives test, not an 'ample' alternatives test.").
162. Compare Susan H. Williams, Content Discrimination and the First Amendment, 139 U Pa L Rev 615, 716-17 (1991); see also id at 642 ("[T]he Court believes that if adequate alternative channels of communication remain, then a regulation restricting a particular alternative will have no more than a minimal effect on speech. This test can also have degrees of strictness. The Court has sometimes described the requirement as one of ample alternative channels, which appears to set a high standard. In practice, however, the Court has often applied an 'adequate' alternatives test, not an 'ample' alternatives test.").
163. ACLU, 117 S Ct at 2348-49 (adequate alternative channels inquiry inapplicable to content-based restrictions); Stone, Content Regulation, 25 Wm & Mary L Rev 189 (cited in note 139).
164. Some commentators have suggested that a ban on broadcast indecency during afternoon hours would be permissible, on the grounds that "the public [is not] in any serious way restricted if the government requires that Carlin's monologue not be broadcast until after six o'clock or in the evening." C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 Vill Sports & Ent L J 45, 54 (1996). But it seems to me that even if the burden on listeners of having to wait until 6 P.M. is seen as insubstantial, the burden on the broadcaster is substantial indeed: There are many more listeners tuned in during the morning and late-afternoon drive-time hours than there are after 6 P.M. See, for example, A New Eastman Radio Study, Mediaweek 8 (April 29, 1996) (77% of radio listeners tune in during morning drive time and 81% during the afternoon drive time, but only 57% listen between 7 P.M. and midnight). Professor Baker's conclusion that the burden is slight may be based on his view that broadcasters' rights are not particularly significant by themselves, and are properly seen as derivative of the listeners' rights, id at 53-54; I do not share this view, and it's not entirely clear where the Court stands on this question. Compare Red Lion Broadcasting Co. v FCC, 395 US 367, 390 (1969) ("It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount") with FCC v League of Women Voters, 468 US 364, 378 (1984) ("Unlike common carriers, broadcasters are entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public duties") (internal quotation marks omitted).
165. Some commentators have suggested that a ban on broadcast indecency during afternoon hours would be permissible, on the grounds that "the public [is not] in any serious way restricted if the government requires that Carlin's monologue not be broadcast until after six o'clock or in the evening." C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 Vill Sports & Ent L J 45, 54 (1996). But it seems to me that even if the burden on listeners of having to wait until 6 P.M. is seen as insubstantial, the burden on the broadcaster is substantial indeed: There are many more listeners tuned in during the morning and late-afternoon drive-time hours than there are after 6 P.M. See, for example, A New Eastman Radio Study, Mediaweek 8 (April 29, 1996) (77% of radio listeners tune in during morning drive time and 81% during the afternoon drive time, but only 57% listen between 7 P.M. and midnight). Professor Baker's conclusion that the burden is slight may be based on his view that broadcasters' rights are not particularly significant by themselves, and are properly seen as derivative of the listeners' rights, id at 53-54; I do not share this view, and it's not entirely clear where the Court stands on this question. Compare Red Lion Broadcasting Co. v FCC, 395 US 367, 390 (1969) ("It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount") with FCC v League of Women Voters, 468 US 364, 378 (1984) ("Unlike common carriers, broadcasters are entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public duties") (internal quotation marks omitted).
166. Some commentators have suggested that a ban on broadcast indecency during afternoon hours would be permissible, on the grounds that "the public [is not] in any serious way restricted if the government requires that Carlin's monologue not be broadcast until after six o'clock or in the evening." C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 Vill Sports & Ent L J 45, 54 (1996). But it seems to me that even if the burden on listeners of having to wait until 6 P.M. is seen as insubstantial, the burden on the broadcaster is substantial indeed: There are many more listeners tuned in during the morning and late-afternoon drive-time hours than there are after 6 P.M. See, for example, A New Eastman Radio Study, Mediaweek 8 (April 29, 1996) (77% of radio listeners tune in during morning drive time and 81% during the afternoon drive time, but only 57% listen between 7 P.M. and midnight). Professor Baker's conclusion that the burden is slight may be based on his view that broadcasters' rights are not particularly significant by themselves, and are properly seen as derivative of the listeners' rights, id at 53-54; I do not share this view, and it's not entirely clear where the Court stands on this question. Compare Red Lion Broadcasting Co. v FCC, 395 US 367, 390 (1969) ("It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount") with FCC v League of Women Voters, 468 US 364, 378 (1984) ("Unlike common carriers, broadcasters are entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public duties") (internal quotation marks omitted).
167. Dial Information Services Corp. v Thornburgh, 938 F2d 1535 (2d Cir 1991) (upholding Helms Amendment, as implemented by FCC regulations); Information Providers' Coalition v FCC, 928 F2d 866 (9th Cir 1991) (same).
168. If cyberspace speakers could somehow automatically ask a would-be listener for a "cyber ID" - analogous to checking an ID under the Ginsberg v New York law - and this verification didn't cost any money, then the law might not substantially burden not-for-pay speech to adults. But to my knowledge no such scheme will be possible any time in the near future. See ACLU, 117 S Ct at 2549-50; note 7 above.
169. Some have argued that a tagging requirement, even if not very burdensome for people who are in the business of distributing speech, is quite burdensome for others, such as individuals or nonprofit organizations distributing such material for free. Compare ACLU, 117 S Ct at 2347-48 (seeming to distinguish professional speakers from amateurs). I m not sure this is true, but I agree that the substantial burden framework should at least in some measure be attentive to such nuances: A burden that's insubstantial in one medium or as to one class of speakers may well be substantial in other contexts.
170. See, for example, Riley v National Federation of the Blind, 487 US 781 (1988). But see Meese v Keene, discussed above in note 64.
171. For example, Ala Code §§ 13A-12-200.1(3), 13A-12-200.5 (1994) (probably prohibiting only display for sale); Am Rev Stat Ann § 13-3507 (West 1989) (prohibiting any display in any "place where minors are invited as part of the general public"); Fla Stat Ann § 847.0125 (West 1994) (prohibiting only display for sale); Ga Code Ann § 16-12-103(e) (Michie 1996) (prohibiting any display in any place "where minors are or may be invited as part of the general public"); Ind Code Ann § 35-49-3-3(2) (Burns 1994) (prohibiting any display "in an area to which minors have visual, auditory, or physical access"); Kan Stat Ann § 21-4301c(a)(1) (1995) (prohibiting display in commercial establishments only); La Rev Stat Ann § 14:91.11 (West 1995) (prohibiting any display "at a newsstand or any other commercial establishment which is open to persons under the age of seventeen years"); Minn Stat Ann § 617.293 (West 1987 & Supp 1996) (prohibiting commercial display); NM Stat Ann § 30-37-2.1 (1997) (prohibiting display only while offering for sale "in a retail establishment open to the general public," and "in such a way that it is on open display to, or within the convenient reach of, minors who may frequent the retail establishment"); NC Gen Stat § 14-190.14(a) (1993) (prohibiting display in commercial establishments only); 21 Okla Stat Ann §§ 1040.75, 1040.76 (West 1983 & Supp 1997) (prohibiting all display, "including but not limited to . . . commercial establishment[s]"); Tenn Code Ann § 39-17-914(a) (1991) (prohibiting display for sale or rent); Tex Penal Code Ann § 43.24 (Vernon 1994) (prohibiting all display, whenever person is "reckless about whether a minor is present who will be offended or alarmed by the display"); 13 Vt Stat Ann §§ 2801(8), 2804a (Equity 1974 & Supp 1997) (prohibiting display "for advertising purposes").
172. See, for example, Crawford v Lungren, 96 F3d 380 (9th Cir 1996) (upholding ban on unattended coin-operated newsrack sales of "harmful to minors" material); American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990) (upholding ban on display, in a place accessible to minors, of any material that's "harmful to minors"); Davis-Kidd Booksellers Inc. v McWherter, 866 SW2d 520 (Tenn 1993) (same).
173. See Frederick Schauer, Easy Cases, 58 S Cal L Rev 399 (1985).
174. I use the phrase "unsuitable for minors" advisedly here: Though I argue that the government should be able to burden - even insubstantially - only that speech which is "obscene as to minors," rather than merely "indecent," I recognize that others might take a different view. The "substantial burden" test is flexible enough to accommodate any definition of "unsuitability."
175. The dial-a-porn ban struck down in Sable may have been something of an exception; the alternatives eventually upheld in Information Providers' Coalition v FCC 928 F2d 866 (9th Cir 1991), and Dial Information Services Corp. v Thornburgh, 938 F2d 1535 (2d Cir 1991), did seem to be pretty much as effective as the ban. See the discussion in Part III.D. 159 Compare Crawford v Lungren, 96 F3d 380 (9th Cir 1996), which upheld such a newsrack restriction under a weighing approach.
176. Though the D.C. Circuit has in fact struck down such a total ban, see note 140, it didn't suggest that there were any pretty much equally effective alternatives to the ban. Its conclusion was instead based on the proposition that the total ban was just too grave a burden.
177. Actually, the new indecency restriction applied to the 6 A.M.-10 P.M. period for public broadcasters, and the 6 A.M.-12 midnight period for commercial broadcasters. The D.C. Circuit held this was impermissibly discriminatory, and that though a flat 6 A.M.-12 midnight ban would have been constitutional, the public broadcaster exemption had to be applied to all stations. Action for Children's: Television v FCC, 58 F3d 654 (DC Cir 1995) (en banc).
178. See, for example, C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 Vill Sports & Ent L J 15 (1996) (suggesting that while the Pacifica ban swept too broadly, a ban on daytime broadcasts might be permissible); Arnold H. Loewy, Obscenity, Pornography, and First Amendment Theory, 2 Wm & Mary Bill Rts J 471, 491 (1993) (suggesting that "a more carefully tailored effort at channeling, such as a prohibition of scatological speech on Saturday morning television," might be appropriate).
179. See, for example, C. Edwin Baker, The Evening Hours During Pacifica Standard Time, 3 Vill Sports & Ent L J 15 (1996) (suggesting that while the Pacifica ban swept too broadly, a ban on daytime broadcasts might be permissible); Arnold H. Loewy, Obscenity, Pornography, and First Amendment Theory, 2 Wm & Mary Bill Rts J 471, 491 (1993) (suggesting that "a more carefully tailored effort at channeling, such as a prohibition of scatological speech on Saturday morning television," might be appropriate).
180. See, for example, Shea v Reno, 930 F Supp 916, 941 (SDNY 1996) (asking whether "the benefits . . . achieved [by the CDA] would outweigh the burden . . . imposed on the First Amendment rights of adults"); Carlin Communications, Inc. v FCC, 837 F2d 546, 555 (2d Cir 1988) ("the State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations"); American Booksellers v Webb, 919 F2d 1493 (11th Cir 1990); Crawford v Lungren, 96 F3d 380 (9th Cir 1996).
181. 492 US at 132.
182. Pickering v Board of Education, 391 US 563, 568 (1968); see also Rankin v McPherson, 483 US 378, 388 (1987).
183. Connick v Myers, 461 US 138, 150 (1983).
184. See Waters v Churchill, 114 S Ct 1878, 1886-88 (1994) (plurality) (discussing differences in the First Amendment tests appropriate when the government is acting as sovereign and when the government is acting as employer).
185. Compare Ginsberg v New York, 390 US 629, 641-43 (1968) (expressing uncertainty about whether "obscene-as-to-minors" speech is really harmful to minors, but concluding that a restriction on such speech is permissible because the speech is constitutionally valueless).
186. In judging the sacrifice of shielding, the Court could also look at the efficacy of less restrictive alternatives: It might, for instance, say that if the less restrictive alternatives are equally effective, any burden is unconstitutional; if they are pretty much equally effective, substantial burdens are unconstitutional; and if they are not at all effective, only very large burdens (however defined) are unconstitutional. For the reasons explained in Part IV.B.3, though, I think this son of framework will probably not be that useful.
187. See Dun & Bradsreet, Inc. v Greenmoss Builders. Inc., 472 US 749 (1985) (private concern); Gertz v Robert Welch, Inc., 418 US 323 (1974) (public
188. Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U Pa L Rev 2417 (cited in note 20).
189. Thus, for instance, speech by political candidates in wartime is constitutionally protected even if it can gravely hurt the war effort, and even if banning it is the only effective way to win the war quickly and save soldiers' lives. Id at 2425-31. Speech that advocates violence is constitutionally protected even though it indeed tends to encourage future violence, and even though other means of preventing the future violence can't entirely, or even close to entirely, undo the damage that the speech has done. Id at 2432-36. Some kinds of disclosures by fundraisers cannot be compelled even though compelling them is the only effective way of preventing misperceptions on the contributors' part. Id at 2441-42. Independent expenditures advocating the election of a candidate are constitutionally protected despite the danger of corruption they unavoidably pose. Id at 2442. (Even those who disagree with Buckley v Valeo and conclude that the government should be able to restrict independent campaign-related expenditures would probably agree that same expenditures must be constitutionally protected despite their potential for causing corruption. Newspapers regularly spend many thousands of dollars in labor and newsprint explicitly endorsing candidates and sometimes quietly boosting them through favorable news coverage; and many politicians will think twice before saying no to a publisher whose efforts can mean so much in a future election. Nonetheless, I take it that a ban on endorsements by newspapers would be widely agreed to be unconstitutional, despite the risk of corruption that such assistance poses.) I don't want to repeat the entire explanation of my thesis here, but I hope my point about ACLU makes it more plausible: Strict scrutiny is a flawed approach for dealing with the constitutionality of content-based speech restrictions.
190. I speak here of restrictions imposed by the government as sovereign. The presumption might be considerably weaker (or perhaps even nonexistent) when the government is acting in other contexts, for instance as employer, K-12 educator, proprietor of a nonpublic forum, speaker, and so on.
191. Gertz v Robert Welch, Inc., 418 US 323 (1974).
192. Consider the expressive conduct test and the time/place/manner restriction test, which evolved separately, but have ultimately proven to be largely manifestations of the same principle. Ward v Rock Against Racism, 491 US 781 (1989).
193. The substantial burden framework might help explain the Buckley v Valeo distinction between contributions and independent expenditures: A restriction on contributions, as Buckley pointed out, poses a relatively modest burden on speech, precisely because independent expenditures are available as an alternative. On the other hand, a restriction on independent expenditures as well as contributions would be a tremendous burden on a person's ability to communicate his views about a candidate. Even if banning expensive speech about candidates is necessary to minimize corruption, such a broad restraint on speech cannot be justified. Likewise, the solution that I've proposed to the constitutional questions surrounding workplace harassment law, see Eugene Volokh, Freedom of Speech and Workplace Harassment Law, 39 UCLA L Rev 1791 (1992), may be best understood as focusing on the substantiality of the burden on speech. Restrictions on unwanted one-to-one speech, I argue, are not substantially burdensome on valuable communications, because they still allow people to freely speak to colleagues other than the unwilling listener. (In my view, continued communication that is received only by unwilling listeners is of relatively slight constitutional value.) On the other hand, restricting one-to-many speech, such as posters or overheard lunchroom conversations or company newsletters or department-wide e-mail, does indeed substantially burden people's ability to communicate with potentially willing listeners.
194. The substantial burden framework might help explain the Buckley v Valeo distinction between contributions and independent expenditures: A restriction on contributions, as Buckley pointed out, poses a relatively modest burden on speech, precisely because independent expenditures are available as an alternative. On the other hand, a restriction on independent expenditures as well as contributions would be a tremendous burden on a person's ability to communicate his views about a candidate. Even if banning expensive speech about candidates is necessary to minimize corruption, such a broad restraint on speech cannot be justified. Likewise, the solution that I've proposed to the constitutional questions surrounding workplace harassment law, see Eugene Volokh, Freedom of Speech and Workplace Harassment Law, 39 UCLA L Rev 1791 (1992), may be best understood as focusing on the substantiality of the burden on speech. Restrictions on unwanted one-to-one speech, I argue, are not substantially burdensome on valuable communications, because they still allow people to freely speak to colleagues other than the unwilling listener. (In my view, continued communication that is received only by unwilling listeners is of relatively slight constitutional value.) On the other hand, restricting one-to-many speech, such as posters or overheard lunchroom conversations or company newsletters or department-wide e-mail, does indeed substantially burden people's ability to communicate with potentially willing listeners.
195. See, for example, Eu v San Francisco County Democratic Central Comm., 489 US 214, 234 (1989) (Stevens concurring).
196. Simon & Schuster, Inc. v Members of the N.Y. State Crime Victims Board, 502 US 105, 124-28 (1991) (Kennedy concurring in the judgment); Burson v Freeman, 504 US 191, 213 (1992) (Kennedy concurring). I disagree with Kennedy's ultimate conclusion in Burson, compare Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U Chi Roundtable 223 (1996), but I generally agree with his overall framework.
197. Colorado Republican Fed. Campaign Cmmn. v FEC, 116 S Ct 2309, 2329 (1996) (Thomas concurring in part and dissenting in part).