[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Re: FC: Larry Lessig responds to CyberTimes article
Another list to which I am subscribed has also been discussing the NYT
Cyberjournal article we talked about in class today. Attached is Larry
Lessig's response to the article in which he was quoted. Thought you
may find it interesting to hear his side of the story from the horse's
own mouth.
Stephanie
--
Stephanie Lyn Beck stephb@interpath.com
http://blake.oit.unc.edu/~steph/
"Funny how we feel so much, but cannot say a word
We are screaming inside, but we can't be heard"
-Sarah McLachlan, "I Will Remember You"
>
> ---------
>
> Subject:
> Larry Lessig Responds
> Date:
> Tue, 4 Nov 1997 10:52:55 -0800
> From:
> "--Todd Lappin-->" <telstar@wired.com>
> To:
> fight-censorship@vorlon.mit.edu
>
> Professor Lessig sent me this clarification to my inquiries about his
> article on the virtues of a modified CDA vs. PICS, as described in
> Cybertimes at: http://www.nytimes.com/library/cyber/law/103097law.html
>
> Forwarded with permission.
>
> --Todd-->
>
> Date: Tue, 4 Nov 97 08:12:54 -0500
> X-Sender: lessig@law.harvard.edu
> From: larry lessig <lessig@pobox.com>
> To: "Todd Lapin" <telstar@WIRED.COM>
> Mime-Version: 1.0
>
> Todd:
>
> My article is trying to make a small, and what I thought, obvious point
> about which, between two strategies for dealing with "indecency" on the
> net, would be more protective of free speech values. The first point that
> should be clear, however, is that I would prefer that *neither* strategy
> be pursued by the government. My first preference is that the government
> do nothing. But the article proceeds on the assumption that the
> government will do something, and I was attempting to work out which, of
> two strategies, better protects free speech values.
>
> PICS and private blocking are the first. The complaints against both are
> becoming well known, though my energy is focused against PICS. The
> essence of the point that I make against both is that they inevitably
> filter far more than the category of speech that the government has a
> "legitimate interest" in filtering. The argument against PICS is more
> targeted. In its present design, PICS (were it adopted generally) would
> lower the cost of centralized filtering. And, in its present design, it
> there is nothing to inhibit "blind" filtering - filtering that fails to
> report that material has been filtered. Both of these flaws in its
> present design are, it seems to me, fatal.
>
> I contrasted that system with a modified CDA. The modifications were two.
> First, the speech targeted by this modified CDA would be *much narrower*
> that the speech targeted by the original CDA. In lawyers' talk, it would
> be the speech spoken of in a case called Ginsberg v. NY - roughly, speech
> that is legally "obscene as to minors" but not as to adults. As I argue,
> this is the only category of speech that the government can (in my view)
> legitimately regulate as to kids. And it is a category of speech that is
> already regulated by the laws of 48 states. This category of speech would
> not reach things like Carlin's 7 dirty words; or discussions of sex, etc.
> It would, again, be much narrower than the absurd category of speech
> regulated by the CDA. The second modification was about IDs. The
> government would subsidize, in some form, the production of IDs, which
> would simply be certificates to authenticate that the user was over the
> age of 17, without identifying necessarily who someone was. The
> modifications together would result in a system that would force
> providers of "Ginsberg Speech" to implement a screening device, that
> would verify the age of the user through this subsidized age verification
> system. My assumption is that the effective cost of such a system would
> have to be quite low for it to be constitutional, but that properly
> implemented, it could be made to be quite low.
>
> This modified CDA would be more protective of free speech values, I
> argued, simply because the class of speech burdened by filtering devices
> would be much less than the class that could be expected to burdened by
> private blocking systems, or PICS. The latter would (if pushed or
> required by the government) certainly in effect filter much more speech
> than the modified CDA; and that, I suggested, was its problem.
>
> The essay Kaplan wrote about was expressly characterized as a "first
> draft." I thought his reporting about it was extremely fair, and the
> simplification he added understandable. I obviously didn't see a draft of
> his article before he published it. Had I done so, I would have suggested
> he use a word other than "hard-core pornography" to refer the class of
> speech I called "regulable". When he and I spoke, I spoke of the class as
> "Ginsberg speech" but for understandable reasons, he apparently thought
> that was not a useful description. But on balance, I think his essay did
> fairly represent that the class of speech that could be regulated is far
> narrower than the class of speech the CDA tried to regulate, and more
> importantly, that governmental steps that bring about the regulation of a
> broader class of speech, whether directly or indirectly, are themselves
> suspect.
>
> Mike Godwin's energetic responses to my article have helped me clarify
> the argument lots, and I appreciate the substance of his comments. In the
> next draft, I will certainly do more to make sure no one can believe that
> I believe that "indecency" is a category of speech that can be regulated;
> I tried to indicate that in the essay, but apparently failed. More
> importantly, an issue I didn't discuss but which should be discussed is
> the place of criminal penalties: I certainly don't think that any speech
> law should have criminal penalties attached. That was another fatal flaw
> in CDA.
>
> But finally, Godwin asked whether a modified PICS wouldn't be better than
> this modified CDA. That is a great point. The whole point of my attacks
> on PICS has been to force the question of its implicit policy choices
> onto the table; to ask the question whether its design couldn't embrace
> different policy choices. A PICS that (whether technically or through
> licensing rules) required "truth in filtering" or that inhibited
> centralized filtering (at the ISP level or higher) would, in my view, be
> a kinder and gentler PICS. Or maybe just the sort of devil I could like.
> I certainly will explore this idea in greater depths, before I send the
> essay off to the depths of oblivion that we call "law reviews."
>
> I hope this helps clarify things.
>
> Lessig
> Harvard Law School, G502
> 1525 Massachusetts Ave
> Cambridge, MA 02138
>
> 617.495.8099 (w)
> 617.495.1110 (fx)
>
> --------------------------------------------------------------------------
> This list is public. To join fight-censorship-announce, send
> "subscribe fight-censorship-announce" to majordomo@vorlon.mit.edu.
> More information is at http://www.eff.org/~declan/fc/