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Again, the government could also use other techniques . . . The government could fund filters if it thought parents were insufficiently adopting filters or . . . finances were preventing parents from adopting filters. The government could create their own list of sites, and make it available to parents.
Most significantly, again, the government could create civil or regulatory devices for protecting children or, alternatively, only reach images rather than text as well as images. The government has chosen to do none of those. Instead, a device that will be ineffective, in part, because of overseas sites, and significantly less effective than filters and other techniques.
Now, finally, in response to all of this, we get to the third big primary issue that is before the court, and that is the defenses. The government may well say that, even if I'm right about all of what I have just said, the defense solves the problem. They don't. The government has identified two techniques that web operators can use in order to protect themselves under COPA. First, they can use payment cards, such as credit cards or debit cards or prepaid cards. Second, they can use what we call DVS products, data-verification products. Neither of these is a satisfactory solution. Both will have a significant negative effect on the speech that is available to adults.
With respect to payment cards, the notion that payment cards are a substitute for age is simply false. It is false. So false that at least one of the credit-card companies prohibits its merchants from saying that a credit card can be used as a surrogate for age.
Minors have credit cards. Your honor will hear from Professor Mann about the number and ease with which minors get access to payment cards. There are adults that don't have payment cards. Your honor will hear from Mr. Mann about the number of adults that were not able to get access to payment cards.
In addition, payment cards will still not do zero-dollar transactions. In other words, if I'm a website operator, I'm putting up a credit card screen or a payment-card screen at the front of my website, somebody is going to have to pay for it. A public card service is [not] going to validate a credit card number unless there is a sale that takes place. And the plaintiffs don't want to sell their speech, but make it as a matter of business and principle for free. The payment card solution does not work.
Data-verification services are the second option the government offers. With a data-verification service, you give the websites a whole lot of information about yourself, your name, your address, your social security number. Then they send that off to a third party, the data-verification service, who then determines whether that information matches up with other databases that the services have collected. It is sort of like a credit check. The more information you give to the data-verification service, the more likely they will be able to find other records about you, which means that in order to get access to the speech, you are going to have to give up an awful lot of personal information about yourself. But even under those circumstances, it is not going to work. First of all, it does not work for a lot of adults, because there are no records for a lot of adults that the data-verification service can check.
Second, particularly, it does not work for young adults because young adults have had less of an opportunity to create a record about themselves.
Third, it does not work for anybody not in the United States. Large parts of the audience for the plaintiffs are people overseas. They would have to be all barred, because we could not verify through the data-verification services.
Finally, very significantly, costs are attached for each person that must be verified. Neither data-verification services will provide an effective defense for those people who want to make their speech for free.
Finally, both payment cards and DVS options will deter people from going to websites. Your honor will hear from all of the plaintiffs, and many of the other website witnesses, that they have specific and concrete experience with putting up barriers. It is their experience that the more barriers you put up, the more people go away, the less successful you can be, both as a business and a speaker, because people simply don't want to have to get speech on the internet only after they have gone through some sort of screen.
Those are the principal factual issues that your honor is going to hear about. That there is value speech that is chilled. There are less restrictive and more effective alternatives, and defenses under COPA don't work. The effect of COPA will be to deprive adults of speech to which they are entitled. The effect of COPA is to violate the First Amendment.
Thank you, your honor.
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©2006 Chris Hansen and Nerve.com
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