Least Restrictive Means and censorware - Peter Junger analysis

[This was the best message I ever saw, concerning the argument over censorware and the "least restrictive means"]

[Note this is historical, the positions described below are no longer those of EFF]

From: "Peter D. Junger" <junger@samsara.LAW.CWRU.Edu>
To: Mike Godwin <mnemonic@well.com>
Cc: "Michael Sims" <jellicle@inch.com>, j.s.tyre@worldnet.att.net,
sethf@MIT.EDU, fight-censorship@vorlon.mit.edu, mech@eff.org, farber@eff.org, eff-staff@eff.org, eff-board@eff.org, eff-interns@eff.org, telstar@wired.com, beeson@aclu.org, chrisaclu@aol.com, brock@well.com, junger@samsara.LAW.CWRU.Edu
Subject: Re: If Constitutional Law Were First-Grade Arithmetic
Date: Sun, 29 Jun 1997 12:03:34 -0400

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: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists