This should set off alarms for those keen to protect First Amendment values — even though the protocol is totally private. As a (perhaps) unintended consequence, the PICS regime not only enables nontransparent filtering but, by producing a market in filtering technology, engenders filters for much more than Ginsberg speech. That, of course, was the ACLU’s legitimate complaint against the original CDA. But here the market, whose tastes are the tastes of the community, facilitates the filtering. Built into the filter are the norms of a community, which are broader than the narrow filter of Ginsberg. The filtering system can expand as broadly as the users want, or as far upstream as sources want.
The H2M+KMB solution alternative is much narrower. It enables a kind of private zoning of speech. But there would be no incentive for speakers to block out listeners; the incentive of a speaker is to have more, not fewer, listeners. The only requirements to filter out listeners would be those that may constitutionally be imposed — Ginsberg speech requirements. Since they would be imposed by the state, these requirements could be tested against the Constitution, and if the state were found to have reached too far, it could be checked.
The difference between these two solutions, then, is in the generalizability of the regimes. The filtering regime would establish an architecture that could be used to filter any kind of speech, and the desires for filtering then could be expected to reach beyond a constitutional minimum; the zoning regime would establish an architecture for blocking that would not have this more general purpose.
Which regime should we prefer?
Notice the values implicit in each regime. Both are general solutions to particular problems. The filtering regime does not limit itself to Ginsberg speech; it can be used to rate, and filter, any Internet content. And the zoning regime, in principle, is not limited to zoning only for Ginsberg speech. The <H2M> kids-ID zoning solution could be used to advance other child protective schemes. Thus, both have applications far beyond the specifics of porn on the Net.
At least in principle. We should be asking, however, what incentives are there to extend the solution beyond the problem. And what resistance is there to such extensions?
Here we begin to see the important difference between the two regimes. When your access is blocked because of a certificate you are holding, you want to know why. When you are told you cannot enter a certain site, the claim to exclude is checked at least by the person being excluded. Sometimes the exclusion is justified, but when it is not, it can be challenged. Zoning, then, builds into itself a system for its own limitation. A site cannot block someone from the site without that individual knowing it[50].
Filtering is different. If you cannot see the content, you cannot know what is being blocked. Content could be filtered by a PICS filter somewhere upstream and you would not necessarily know this was happening. Nothing in the PICS design requires truth in blocking in the way that the zoning solution does. Thus, upstream filtering becomes easier, less transparent, and less costly with PICS.
This effect is even clearer if we take apart the components of the filtering process. Recall the two elements of filtering solutions — labeling content, and then blocking based on that labeling. We might well argue that the labeling is the more dangerous of the two elements. If content is labeled, then it is possible to monitor who gets what without even blocking access. That might well raise greater concerns than blocking, since blocking at least puts the user on notice.
These possibilities should trouble us only if we have reason to question the value of filtering generally, and upstream filtering in particular. I believe we do. But I must confess that my concern grows out of yet another latent ambiguity in our constitutional past.
There is undeniable value in filtering. We all filter out much more than we process, and in general it is better if we can select our filters rather than have others select them for us. If I read the New York Times rather than the Wall Street Journal, I am selecting a filter according to my understanding of the values of both newspapers. Obviously, in any particular case, there cannot be a problem with this.
But there is also a value in confronting the unfiltered. We individually may want to avoid issues of poverty or of inequality, and so we might prefer to tune those facts out of our universe. But it would be terrible from the standpoint of society if citizens could simply tune out problems that were not theirs, because those same citizens have to select leaders to manage these very problems[51].
In real space we do not have to worry about this problem too much because filtering is usually imperfect. However much I’d like to ignore homelessness, I cannot go to my bank without confronting homeless people on the street; however much I’d like to ignore inequality, I cannot drive to the airport without passing through neighborhoods that remind me of how unequal a nation the United States is. All sorts of issues I’d rather not think about force themselves on me. They demand my attention in real space, regardless of my filtering choices.
Of course, this is not true for everyone. The very rich can cut themselves off from what they do not want to see. Think of the butler on a 19th-century English estate, answering the door and sending away those he thinks should not trouble his master. Those people lived perfectly filtered lives. And so do some today.
But most of us do not. We must confront the problems of others and think about issues that affect our society. This exposure makes us better citizens[52]. We can better deliberate and vote on issues that affect others if we have some sense of the problems they face.
What happens, then, if the imperfections of filtering disappear? What happens if everyone can, in effect, have a butler? Would such a world be consistent with the values of the First Amendment?
Some believe that it would not be. Cass Sunstein, for example, has argued quite forcefully that the framers embraced what he calls a “Madisonian” conception of the First Amendment[53]. This Madisonian conception rejects the notion that the mix of speech we see should solely be a function of individual choice[54]. It insists, Sunstein claims, on ensuring that we are exposed to the range of issues we need to understand if we are to function as citizens. It therefore would reject any architecture that makes consumer choice trump. Choice is not a bad circumstance in the Madisonian scheme, but it is not the end of the matter. Ithiel de Sola Pool makes a very similar point:
What will it mean if audiences are increasingly fractionated into small groups with special interests? What will it mean if the agenda of national fads and concerns is no longer effectively set by a few mass media to which everyone is exposed? Such a trend raises for society the reverse problems from those posed by mass conformism. The cohesion and effective functioning of a democratic society depends upon some sort of public agora in which everyone participates and where all deal with a common agenda of problems, however much they may argue over the solutions[55].
50.
This claim, of course, is too strong. The site could block deceptively, making it seem as if the user were gaining access but actually not giving her access to what she believes she is gaining access to.
51.
See Richard Thompson Ford ("The Boundaries of Race: Political Geography in Legal Analysis,"
52.
See Regents of the
53.
See Sunstein,
55.
Ithiel de Sola Pool,