IP: If Constitutional Law Were First-Grade Arithmetic

[David Farber <farber () cis upenn edu>]

Date: Sat, 28 Jun 1997 17:13:17 -0700
From: Mike Godwin <mnemonic () well com>




I'm going to try a different strategy to explain why all the
civil-liberties groups in ACLU v. Reno argued that software filters (a.k.a.
"censorware") are a less restrictive means than the CDA, yet maintain that
they do not endorse the use of software filters.


This time, I'm going to analogize it to first-grade math, which, unlike the
first year of law school, we can assume that most readers of this posting
have in common.


If constitutional law were arithmetic:


1) The Congress would have passed, based on their belief that it helps
children to overestimate distances when trying to avoid playing near
(information) highways, a requirement that we all work under the constraint
that "2 + 2 = 10".


2) The Supreme Court and the Constitution would require that Congress's
arithmetic be as close to correct as is possible, consistent with the
health of society and Congress's valid interest in protecting children.
Think of this as the "least incorrect answer" requirement.


3) The civil-liberties groups would say privately and publicly that "2 + 2
= 4".


*4) The challengers to the Computation Decency Act would argue in their
briefs that "2+2=4", but would also argue that existing software that
dictates that 2+2=8  (and that is customizable by parents to change the
answer to the equation)  is a solution to the equation that is *closer to
the correct answer* than the government's solution is. It follows, then,
that the CDA should be struck down, they'd argue, either on the first basis
or the second basis or both.


"Look," the civil-liberties plaintiffs would say, "Even if you buy the
government's premise that protecting children requires that they
overestimate how far they need to be from the highway, 2+2=8 achieves that
goal and is *closer to correct* than the government's solution to the
equation.


"Ergo, the Least Incorrect Answer principle requires that the Court strike
down the government's solution."


5) Seth Finkelstein would say "You evil sellouts are *endorsing* the 2+2=8
equation, *which is just plain wrong*.


6) I'd explain that, no, we're not endorsing that solution -- we're simply
saying that even if the Court accepts the government's premise, it has to
throw out the government's solution because, from a constitutional law (and
gut-level-intuitive) standpoint, 2+2=8 is closer to the right answer than
2+2=10 is.


7) Michael Sims would say "You SECRETLY WANT 2+2 to equal 8, DON'T YOU?" He
would "translate" various EFF documents to show that they secretly mean
we're in love with the idea that 2+2=8.


8) Declan McCullagh would say: "Look, this is a question of absolutes. From
a mathematical standpoint, all wrong answers are equally wrong, and 2+2=8
is just as wrong as 2+2-10."


9) I would say "I agree with you. But the Supreme Court has long held that
the doctrine of Least Incorrect Answer is valid, and therefore we are
framing this *contingent* argument, consistent with the longstanding rules
of constitutional law challenges, that there is a "closer to correct" or
"less incorrect" answer than the Government's. And if we do so, all we've
done is point out a flaw in the government's reasoning -- it doesn't mean
we endorse the alternative reasoning ourselves or that we have adopted it
as a policy.


10) Michael Sims would say: "Okay, but even if you make this argument in
your briefs, you shouldn't say it in public, since to those of us who don't
pay attention to how these challenges work, it looks very much as if you're
endorsing 2+2=8.  And, by the way, when you keep asserting that we don't
understand the rules, you're just engaging in ad hominem attacks!"


11) I would say, "Look, we could pretend that we had never made the
argument, and we could pretend that we didn't engage in an effort to show
the illogic of the government's own position by assuming for the sake of
argument that their premises were correct but then reasoning to a different
result. But that would be lying. And at some point we think Americans ought
to take the leap of understanding necessary to see how the rules of
Constitutional Law work -- and labor to change them if they think the rules
need changing.


"But most of the people who stand outside and heckle us flatly assume that
every time we say something they don't believe, it's because we are lawyers
and have no principles. And if, in order to make them happy, we
misrepresented how we'd framed the arguments, we'd be proving them right."






--Mike








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'Indeed, the Government's asserted "failure" of the Internet rests on the
implicit premise that too much speech occurs in that medium, and that
speech there is too available to the participants.  This is exactly the
benefit of Internet communication, however.  The Government, therefore,
implicitly asks this court to limit both the amount of speech on the
Internet and the availability of that speech.  This argument is profoundly
repugnant to First Amendment principles.'
   --Judge Stewart Dalzell, ACLU v. Reno.


      Mike Godwin, EFF Staff Counsel, can be reached at mnemonic () eff org
                   or at his office, 510-548-3290.
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