Re: Justice Department recruiting anti-filter folk to testify for

[Seth Finkelstein <sethf@MIT.EDU>]

        This is the whole issue of Censorware-Is-Our-Savior.

        Peter Junger wrote the best *legal* analysis I've ever seen, which
I repost below. Note, to lay a frequent canard to rest, it doesn't agree
100% with what I say, but I'm digging it out and resending it with approval.


   Message-Id: 199706291603.maa3008-@samsara.law.cwru.edu
   To: Mike Godwin mnemoni-@well.com
   Cc: "Michael Sims" jellicl-@inch.com, j.s.tyr-@worldnet.att.net,
        seth-@mit.edu, fight-censorshi-@vorlon.mit.edu, mec-@eff.org,
        farbe-@eff.org, eff-staf-@eff.org, eff-boar-@eff.org,
        eff-intern-@eff.org, telsta-@wired.com, beeso-@aclu.org,
        chrisacl-@aol.com, broc-@well.com, junge-@samsara.law.cwru.edu
   Subject: Re: If Constitutional Law Were First-Grade Arithmetic
   Date: Sun, 29 Jun 1997 12:03:34 -0400
   From: "Peter D. Junger" junge-@samsara.law.cwru.edu


The trouble with the analogy between Constitutional Law and First-
Grade Arithmetic is that the practice of law (constitutional or
otherwise) is about as different from the practice of first grade
arithmetic as one can get.

When one has a legal problem the answer is not determined.  If the answer
is determined one does not have a legal problem (except, if you do not
like that answer, to find another question).  So, unlike arithmetic,
the practice of law, as no one knows better than Mike Godwin, always
involves tactical considerations and seldom, if ever, involves the
type of formalizable logic that is pushed upon innocent six year olds
by teachers who have never been exposed to the theorems of Goedel, Church,
and Turing (or who, if they have been exposed to those proofs, have enough
tactical sense not to try to explain them to a bunch of six year old
children).

Thus in arguing the CDA case there were certain tactical decisions that
had to be made.  One of the decisions was whether to go for broke and
argue only that the CDA was unconstitutional because it violated the
plaintiff's (and everyone else's) first amendment rights, period, or to
also argue that, even if something like the act could be constitutionally
justified by the interests that the government was seeking to protect,
the act would still be unconstitutional because the government had
less restrictive means of accomplishing its goals, i.e., that the
government might mandate censorware (though always being sure not to call
those filtering programs ``censorware'').

One can hardly blame the lawyers for the plaintiffs for making the
decision to make the less restrictive means argument, although there were
a couple of flaws with that argument, such as the fact that censorware
would not work, the possibility that mandatory filtering would be more,
not less, restrictive (as the Australian case suggests), and the fact
that almost all the plaintiffs believed, or at least hoped, that mandatory
filterware is also unconstitutional.

But this last point is a tricky one, because of the fact that mandatory
filtering, government mandated filtering, would almost certainly be
some sort of licensing scheme that would be absolutely unconstitutional
under Near (and Pocket Books) even if it were the least restrictive means
of accomplishing the governments goal.  Now if one were to be logical
about that point one would be confronting the court with an interesting
problem in logic:  can something be the least restrictive means when it
is not available to the government because it is absolutely
unconstitutional without regard to overbreadth or vagueness or any of those
other considerations that might justify applying the least restrictive
means analysis?

But the last thing that a good legal tactician wants to do is supply the
courts with an interesting logical question.  So the obvious solution is
to obfuscate.  Which I think the plaintiffs' lawyers in the CDA case did
very well, particularly by ignoring the distinction between parent mandated
censorware and government mandated censorware.  (And it is a good argument
---although not the least restrictive means argument---that the government
had no overriding interest in protecting children, because the parents
could do it themselves by filtering (though there is the problem that the
filters do not work).)

But now the CDA case has been won with the Court paying little or no
deference to the least restrictive means argument and the next case,
which might come out of a public library in Ohio or Massachusetts or
Texas and probably will not involve federal legislation, is going to
raise a new set of tactical considerations.  The plaintiffs in the coming
case are not going to want to suggest that there are any virtues to
censorware, and certainly not to governmentally mandated censorware.
They will almost certainly put their major reliance on the licensing
aspects of the case, but, as a tactical matter, they may also want
to argue that any law mandating censorware is overly broad because
something like the CDA---though that is not the way the plaintiffs would
describe it---is the least restrictive means of accomplishing the
government's ends.

We owe a tremendous debt of gratitude to the plaintiffs in the CDA case,
and especially to their lawyers.  And, though we will never know the
truth of the matter---except as a matter of formal logic, where the
truth value of all contrafactual propositions, including the negations of
those propositions, is TRUE---it seems to me quite possible that they
would not have won the CDA case had they not raised the least restrictive
means argument, even though the Court ultimately did not make any
appreciable use of that argument in the opinion justifying its decision.

But as a tactical matter the plaintiffs in the coming case are going to
have to look at the victors in the CDA case and say:  ``But what have
you done for us lately?''

I know that lawyers, like generals, love to refight their old battles
and always prepare for the last war.  But still, if EFF is going to
keep on distributing press releases about how good the least restrictive
means argument was, when the least restrictive means was the very
governmentally mandated censorware that is going to be the enemy in
the next case, one can see why those who are planning for the next battle
might hope that the old soldiers will just fade away.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junge-@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
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