Is it possible that the technology that helps us to claim the CDA is not the least restrictive means to accomplish the gvt's (disputed) goal of protecting junior *also* helps the gvt argue it's easier to comply? In other words, if the justices disagree with us on the LRM argument (perhaps saying that kiddies can log in from the mall or at a friend's house w/out censorware) -- then censorware *helps* the gvt claim a revised CDA is constitutional? David Sobel, a lawyer at EPIC and co-counsel in the CDA suit, told me the Justice Department could use this combination to argue just that: "I think if there were a large installed base of technology that could make compliance with a CDA-type statute feasible, then a court might not have the same problems with it. If you were looking at a technological environment where there's a large installed base of PICS-compliant browsers, then the argument would be that to comply with the CDA you have to self-rate your stuff." -Declan On Thu, 20 Mar 1997, Bill Stewart wrote:
One of the main arguments about technology for the good guys is that the CDA's infringements on free speech are not the least restrictive means for accomplishing their (claimed) objective - technology gives us some options today (like censor-filters) - and advances in technology _strengthen_ the pro-free-speech case, because they provide more alternatives that are less restrictive than the censorship approach.
At 06:45 PM 3/19/97 -0500, Declan wrote:
http://cgi.pathfinder.com/netly/editorial/0,1012,744,00.html Justice Scalia, who noted that he uses a computer, pointed out that technology is rapidly changing. "So much of your argument is based on what's currently available," he said to Ennis. "This technology is changing so quickly. Is it possible that this statute is unconstitutional now but could be [constitutional] in four or five years?" Ennis replied: "Not as it's written."
During a subsequent press conference, Ennis added that indeed, the technology is changing, and is giving parents more control over what their children do and see online. "Precisely because the technology is changing, the government should not be trying to enforce this law," he said. The ACLU attorneys who joined Ennis were grinning: the justices appeared to understand the nature of communications online, noted that teens have rights, and focused on free speech, not porn.
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