These possibilities should trouble us only if we have reason to question the value of filtering generally, and upstream filtering in particular. I believe we do. But I must confess that my concern grows out of yet another latent ambiguity in our constitutional past.
There is undeniable value in filtering. We all filter out much more than we process, and in general it is better if we can select our filters rather than have others select them for us. If I read the New York Times rather than the Wall Street Journal, I am selecting a filter according to my understanding of the values of both newspapers. Obviously, in any particular case, there cannot be a problem with this.
But there is also a value in confronting the unfiltered. We individually may want to avoid issues of poverty or of inequality, and so we might prefer to tune those facts out of our universe. But it would be terrible from the standpoint of society if citizens could simply tune out problems that were not theirs, because those same citizens have to select leaders to manage these very problems[51] .
In real space we do not have to worry about this problem too much because filtering is usually imperfect. However much I’d like to ignore homelessness, I cannot go to my bank without confronting homeless people on the street; however much I’d like to ignore inequality, I cannot drive to the airport without passing through neighborhoods that remind me of how unequal a nation the United States is. All sorts of issues I’d rather not think about force themselves on me. They demand my attention in real space, regardless of my filtering choices.
Of course, this is not true for everyone. The very rich can cut themselves off from what they do not want to see. Think of the butler on a 19th-century English estate, answering the door and sending away those he thinks should not trouble his master. Those people lived perfectly filtered lives. And so do some today.
But most of us do not. We must confront the problems of others and think about issues that affect our society. This exposure makes us better citizens[52]. We can better deliberate and vote on issues that affect others if we have some sense of the problems they face.
What happens, then, if the imperfections of filtering disappear? What happens if everyone can, in effect, have a butler? Would such a world be consistent with the values of the First Amendment?
Some believe that it would not be. Cass Sunstein, for example, has argued quite forcefully that the framers embraced what he calls a “Madisonian” conception of the First Amendment[53]. This Madisonian conception rejects the notion that the mix of speech we see should solely be a function of individual choice[54]. It insists, Sunstein claims, on ensuring that we are exposed to the range of issues we need to understand if we are to function as citizens. It therefore would reject any architecture that makes consumer choice trump. Choice is not a bad circumstance in the Madisonian scheme, but it is not the end of the matter. Ithiel de Sola Pool makes a very similar point:
What will it mean if audiences are increasingly fractionated into small groups with special interests? What will it mean if the agenda of national fads and concerns is no longer effectively set by a few mass media to which everyone is exposed? Such a trend raises for society the reverse problems from those posed by mass conformism. The cohesion and effective functioning of a democratic society depends upon some sort of public agora in which everyone participates and where all deal with a common agenda of problems, however much they may argue over the solutions[55].
On the other side are scholars such as Geoffrey Stone, who insists just as strongly that no such paternalistic ideal is found anywhere in the conception of free speech embraced by our framers[56]. The amendment, he says, is merely concerned with banning state control of private choice. Since enabling private choice is no problem under this regime, neither is perfect filtering.
This conflict among brilliant University of Chicago law professors reveals another latent ambiguity, and, as with other such ambiguity, I do not think we get far by appealing to Madison. To use Sunstein against Sunstein, the framers’ First Amendment was an incompletely theorized agreement, and it is better simply to confess that it did not cover the case of perfect filtering. The framers couldn’t imagine a PICS-enabled world; they certainly didn’t agree upon the scope of the First Amendment in such a world. If we are to support one regime over another, we must do so by asserting the values we want to embrace rather than claiming they have already been embraced.
So what values should we choose? In my view, we should not opt for perfect filtering[57]. We should not design for the most efficient system of censoring — or at least, we should not do this in a way that allows invisible upstream filtering. Nor should we opt for perfect filtering so long as the tendency worldwide is to overfilter speech. If there is speech the government has an interest in controlling, then let that control be obvious to the users. A political response is possible only when regulation is transparent.
Thus, my vote is for the regime that is least transformative of important public values. A zoning regime that enables children to self-identify is less transformative than a filtering regime that in effect requires all speech to be labeled. A zoning regime is not only less transformative but less enabling (of other regulation) — it requires the smallest change to the existing architecture of the Net and does not easily generalize to a far more significant regulation.
I would opt for a zoning regime even if it required a law and the filtering solution required only private choice. If the state is pushing for a change in the mix of law and architecture, I do not care that it is pushing with law in one context and with norms in the other. From my perspective, the question is the result, not the means — does the regime produced by these changes protect free speech values?
Others are obsessed with this distinction between law and private action. They view regulation by the state as universally suspect and regulation by private actors as beyond the scope of constitutional review. And, to their credit, most constitutional law is on their side.
But as I’ve hinted before, and defend more below, I do not think we should get caught up in the lines that lawyers draw. Our question should be the values we want cyberspace to protect. The lawyers will figure out how.
The annoying skeptic who keeps noting my “inconsistencies” will like to pester me again at this point. In the last chapter, I embraced an architecture for privacy that is in essence the architecture of PICS. P3P, like PICS, would enable machine-to-machine negotiation about content. The content of P3P is rules about privacy practices, and with PICS it is rules about content. But how, the skeptic asks, can I oppose one yet favor the other?
The answer is the same as before: The values of speech are different from the values of privacy; the control we want to vest over speech is less than the control we want to vest over privacy. For the same reasons that we disable some of the control over intellectual property, we should disable some of the control over speech. A
