But if the lovers of this form of speech regulation have been reading carefully, they have a quick answer to this charge of censorship. It is clear, upon reflection, that in the sense of Chapter 7, spam and porn have always been regulated in real space. The only question for cyberspace is whether the same effect of those real space regulations can be achieved in cyberspace.
Real-Space Regulations: Spam and Porn
Think first about spam in real space. In the sense of Chapter 7, spam, in real space, is regulated extensively. We can understand that regulation through the four modalities.
First law: Regulations against fraud and misrepresentation constrain the games bulk mailers can play in real space. Contests are heavily regulated (just read the disclaimers on the Publishers’ Clearing House Sweepstakes).
Second, norms regulate bulk mail in real space. There’s a sense of what is appropriate to advertise for; advertisement outside that range is almost self-defeating.
Third, markets regulate bulk mail in real space. The cost of real space mail is high, meaning the returns must be significant before it pays to send bulk mail. That radically reduces the range of bulk mail that gets sent in real space.
And finally, architecture regulates bulk mail in real space. We get our mail just once a day, and it’s fairly simple to segregate bulk from real. It’s also simple to dump the bulk without ever even opening it. The burdens of real-space spam are thus not terribly great.
These factors together restrict the spread of spam in real space. There is less of it than the spammers would like, even if there is more than the rest of us like. These four constraints thus regulate what gets made.
A similar story can be told about porn.
Pornography, in real space, is regulated extensively — again not obscenity and not child porn, but what the Supreme Court calls sexually explicit speech that is “harmful to minors.” Obscenity and child porn are regulated too, but their regulation is different: Obscenity and child porn are banned for all people in real space (United States); porn is banned only for children.
We can also understand porn’s regulation by considering the four modalities of regulation. All four are directed to a common end: to keep porn away from kids while (sometimes) ensuring adults’ access to it.
First, laws do this. Laws in many jurisdictions require that porn not be sold to kids[34]. Since at least 1968, when the Supreme Court decided Ginsberg v. New York[35], such regulation has been consistently upheld. States can require vendors of porn to sell it only to adults; they can also require vendors to check the ID of buyers.
But not only laws channel. Social norms do as well. Norms restrict the sale of porn generally — society for the most part sneers at consumers of porn, and this sneer undoubtedly inhibits its sale. Norms also support the policy of keeping porn away from kids. Porn dealers likely don’t like to think of themselves as people who corrupt. Selling porn to kids is universally seen as corrupting, and this is an important constraint on dealers, as on anyone else.
The market, too, keeps porn away from kids. Porn in real space costs money. Kids do not have much money. Because sellers discriminate on the basis of who can pay, they thus help to discourage children from buying porn.
But then regulations of law, market, and norms all presuppose another regulation that makes the first three possible: the regulation of real-space architecture. In real space it is hard to hide that you are a child. He can try, but without any likely success. Thus, because a kid cannot hide his age, and because porn is largely sold face to face, the architectures of real space make it relatively cheap for laws and norms to be effective.
This constellation of regulations in real space has the effect of controlling, to an important degree, the distribution of porn to kids. The regulation is not perfect — any child who really wants the stuff can get it — but regulation does not need to be perfect to be effective. It is enough that these regulations make porn generally unavailable.
Cyberspace Regulations: Spam and Porn
Spam and porn are regulated differently in cyberspace. That is, these same four modalities constrain or enable spam and porn differently in cyberspace.
Let’s begin with porn this time. The first difference is the market. In real space porn costs money, but in cyberspace it need not — at least not much. If you want to distribute one million pictures of “the girl next door” in real space, it is not unreasonable to say that distribution will cost close to $1 million. In cyberspace distribution is practically free. So long as you have access to cyberspace and a scanner, you can scan a picture of “the girl next door” and then distribute the digital image across USENET to many more than one million people for just the cost of an Internet connection.
With the costs of production so low, a much greater supply of porn is produced for cyberspace than for real space. And indeed, a whole category of porn exists in cyberspace that doesn’t in real space — amateur porn, or porn produced for noncommercial purposes. That category of supply simply couldn’t survive in real space.
And then there is demand. Porn in cyberspace can be accessed — often and in many places — for free. Thousands of commercial sites make porn available for free, as a tease to draw in customers. Even more porn is distributed in noncommercial contexts, such as USENET, or free porn websites. Again, this low price translates into much greater demand.
Much of this supply and demand is for a market that, at least in the United States, is constitutionally protected. Adults have a constitutional right in the United States to access porn, in the sense that the government can do nothing that burdens (perhaps unreasonably burdens) access to porn. But there is another market for porn in the United States that is not constitutionally protected. Governments have the right in the United States to block access by kids to porn.
As we saw in the previous section, for that regulation to work, however, there needs to be a relatively simple way to know who is a kid. But as we’ve seen throughout this book, this is an architectural feature that cyberspace doesn’t have. It’s not that kids in cyberspace can easily hide that they are kids. In cyberspace, there is no fact to disguise. You enter without an identity and you identify only what you want — and even that can’t be authenticated with any real confidence. Thus, a kid in cyberspace need not disclose that he is a kid. And therefore he need not suffer the discriminations applied to a child in real space. No one needs to know that Jon is Jonny; therefore, the architecture does not produce the minimal information necessary to make regulation work.
The consequence is that regulations that seek selectively to block access to kids in cyberspace don’t work, and they don’t work for reasons that are very different from the reasons they might not work well in real space. In real space, no doubt, there are sellers who want to break the law or who are not typically motivated to obey it. But in cyberspace, even if the seller wants to obey the law, the law can’t be obeyed. The architecture of cyberspace doesn’t provide the tools to enable the law to be followed.
A similar story can be told about spam: Spam is an economic activity. People send it to make money. The frictions of real space significantly throttle that desire. The costs of sending spam in real space mean that only projects expecting a significant return get sent. As I said, even then, laws and norms add another layer of restriction. But the most significant constraint is cost.
34.
Justice Sandra Day O'Connor listed more than 40 states with such law in her concur rence in