have been in 1996. This change is because of two categories of speech that have become the bane of existence to many on the Net: spam and porn.
By “spam” I mean unsolicited commercial e-mail sent in bulk. “Unsolicited”, in the sense that there’s no relationship between the sender and recipient; “commercial” in a sense that excludes political e-mail; “e-mail” in the sense not restricted to e-mail, but that includes every medium of interaction in cyberspace (including blogs); and “bulk” meaning many (you pick the number) missives sent at once.
By “porn”, I mean not obscenity and not child porn, but what the United States Supreme Court calls sexually explicit speech that is “harmful to minors[33]”. This is the category of legally permitted erotic speech — for adults, at least, not for kids. Obscenity and child porn are permitted to no one.
These two types of speech — porn and spam — are very different, but they are similar in the structure of regulation that each demands. Neither kind of speech should be banned by regulation: There are some who are happy to receive spam; there are some who are constitutionally entitled to access porn. But for both kinds of speech, there is a class of individuals who would like the power to block access to each: most of us with respect to spam; parents with respect to porn. This is a desire for a kind of “speech regulation.” The question is how, or whether, the law can support it.
I’m all for this form of speech regulation, properly architected. “But how”, anti-regulation sorts might ask, “can you so easily embrace the idea of regulation? Have you forgotten the important values of free speech? ”
But if the lovers of this form of speech regulation have been reading carefully, they have a quick answer to this charge of censorship. It is clear, upon reflection, that in the sense of Chapter 7, spam and porn have always been regulated in real space. The only question for cyberspace is whether the same effect of those real space regulations can be achieved in cyberspace.
Real-Space Regulations: Spam and Porn
Think first about spam in real space. In the sense of Chapter 7, spam, in real space, is regulated extensively. We can understand that regulation through the four modalities.
First law: Regulations against fraud and misrepresentation constrain the games bulk mailers can play in real space. Contests are heavily regulated (just read the disclaimers on the Publishers’ Clearing House Sweepstakes).
Second, norms regulate bulk mail in real space. There’s a sense of what is appropriate to advertise for; advertisement outside that range is almost self-defeating.
Third, markets regulate bulk mail in real space. The cost of real space mail is high, meaning the returns must be significant before it pays to send bulk mail. That radically reduces the range of bulk mail that gets sent in real space.
And finally, architecture regulates bulk mail in real space. We get our mail just once a day, and it’s fairly simple to segregate bulk from real. It’s also simple to dump the bulk without ever even opening it. The burdens of real-space spam are thus not terribly great.
These factors together restrict the spread of spam in real space. There is less of it than the spammers would like, even if there is more than the rest of us like. These four constraints thus regulate what gets made.
A similar story can be told about porn.
Pornography, in real space, is regulated extensively — again not obscenity and not child porn, but what the Supreme Court calls sexually explicit speech that is “harmful to minors.” Obscenity and child porn are regulated too, but their regulation is different: Obscenity and child porn are banned for all people in real space (United States); porn is banned only for children.
We can also understand porn’s regulation by considering the four modalities of regulation. All four are directed to a common end: to keep porn away from kids while (sometimes) ensuring adults’ access to it.
First, laws do this. Laws in many jurisdictions require that porn not be sold to kids[34]. Since at least 1968, when the Supreme Court decided Ginsberg v. New York[35], such regulation has been consistently upheld. States can require vendors of porn to sell it only to adults; they can also require vendors to check the ID of buyers.
But not only laws channel. Social norms do as well. Norms restrict the sale of porn generally — society for the most part sneers at consumers of porn, and this sneer undoubtedly inhibits its sale. Norms also support the policy of keeping porn away from kids. Porn dealers likely don’t like to think of themselves as people who corrupt. Selling porn to kids is universally seen as corrupting, and this is an important constraint on dealers, as on anyone else.
The market, too, keeps porn away from kids. Porn in real space costs money. Kids do not have much money. Because sellers discriminate on the basis of who can pay, they thus help to discourage children from buying porn.
But then regulations of law, market, and norms all presuppose another regulation that makes the first three possible: the regulation of real-space architecture. In real space it is hard to hide that you are a child. He can try, but without any likely success. Thus, because a kid cannot hide his age, and because porn is largely sold face to face, the architectures of real space make it relatively cheap for laws and norms to be effective.
This constellation of regulations in real space has the effect of controlling, to an important degree, the distribution of porn to kids. The regulation is not perfect — any child who really wants the stuff can get it — but regulation does not need to be perfect to be effective. It is enough that these regulations make porn generally unavailable.
Cyberspace Regulations: Spam and Porn
Spam and porn are regulated differently in cyberspace. That is, these same four modalities constrain or enable spam and porn differently in cyberspace.
Let’s begin with porn this time. The first difference is the market. In real space porn costs money, but in cyberspace it need not — at least not much. If you want to distribute one million pictures of “the girl next door” in real space, it is not unreasonable to say that distribution will cost close to $1 million. In cyberspace distribution is
