explain to me how the IP suit even came up. i can't figure it out, it just seems...unthinkable that it would even be proposed, much less upheld...?

I completely disagree that striking down COPA was the right thing to do. All COPA required was visitors to web sites with adult content show the same verification that they would have to show if they went down to the corner store to buy the latest copy of, say, Playboy if you're classy, or Gent if you're Paul. That being said, the whole inclusion of pornography into the First Amendment is an absolutely atrocious series of acts of judicial activism over the last 50 years no one has the guts to point out. How is a picture of someone with a cock up their ass speech? What is that saying? Ow? If we're prepared to call that speech, why isn't everything anyone does speech? If fucking has symbolic content protected under the First Amendment, why doesn't me punching you in the jaw? Or me jacking off in public?

Also, good work EFF. I actually co-wrote a memo for them in the fall. It can be found on their website at http://www.eff.org/IP/P2P/parental_liability.pdf. It's old news, but it's about individual lawsuits filed by the RIAA.

I think it's naive to imagine that we can define the boundaries of what constitutes meaningful speech. If that were the case we could just draw up a few volumes of symbols and meaning, then shut down this whole "art" business altogether. Can ass-fucking be art? That's for the viewer to decide. You might not like some media that I like; it may even disgust you. That's fine, but don't start trying to legislate it out of existence. If you choose to do that, you're reducing my freedom just to make yourself feel better knowing that something you wouldn't consume anyway no longer exists.

Now, as to your punching and public masturbation examples: clearly the punching example is just hyperbole -- you're obviously violating my rights with such an expression of "speech". Your other example -- masturbating in public -- is not as simple a case. I think a distinction between fora needs to be made here: when speech occurs in a public space such that it cannot reasonably be avoided, or over a public medium that constitutes a limited shared resource, then restricting speech makes perfect sense. You should have the right to consciously avoid objectionable material, and public commodities should be utilized according to whatever rules we can best agree upon to get the most use out of them. So keep your pants on in the park, and refrain from using the F word on public broadcasts.

I don't think the internet constitutes such a space any more than your magazine rack example does. It's a technology that's fundamentally based on requesting information you want, not being subjected to a third party "push". Nor does putting up a site doesn't reduce the ability of other sites to publish, so there is no reason to restrict it to maximize utility.

So it's just about protecting the children. And let's face it, we can't sanitize the world for the benefit of the young -- and if we could, I wouldn't want to. The justices were completely right in pointing out that filtering software is the best solution for parents who want to protect their children from obscenity. In fact, I'd be all for spending some money to pay for the FTC to maintain a thorough porn blacklist, to be used by filtering companies. Finally, let's not forget that no one is making anybody log onto the internet. It's a voluntary service, the same as pay cable.

I think it's laughable that restricting the internet was even proposed as a solution. Some people are allergic to peanuts, you know. We don't outlaw peanuts as a result; we just make sure that those who need to can avoid them as easily as possible.

You don't actually think it's naive to define what is constitutional speech, you just have a much broader view of it than I do. Which you go on to prove by dismissal of the punching example. You clearly define that as not speech, because the First Amendment doesn't say anything about freedom of speech being limited by other people's rights; it is an absolute. If it weren't, then we might allow the police to stop communists from speaking in public because it could cause a public disturbance.

The First Amendment also doesn't say anything about place or time. Again, it is an absolute. You can't just say the First Amendment says whatever you want it to, you have to actually read it.

Furthermore, you misread my analogy to the magazine rack. I'm saying they're similar, which you appear to agree with. The question then is, why do you have to show ID to the guy by the magazine rack, but not to the guy on the internet?

What it comes down to is simply a matter of preference. You don't want me to limit your freedom to choose material to browse. I don't want you to limit my freedom to live in a society where that kind of crap isn't all around me.

And let's note that I'm not entirely speaking for myself here. I mean, I love porn. But if the good people of Utah want to completely ban it, that's absolutely fine by me. We live in a democracy. Majority rules. Tyranny of the majority, you say? It's a lot better than tyranny of the minority.

Well, if you reread what I said I state that the magazine rack does not meet my criteria of being a public medium with a limited bandwidth. So my position would be that, technically, you cannot justify requiring that magazine stand owner to police speech by IDing kids.

With that said, let's take a step back and follow the justices' example: be reasonable. We can let parents have their non-pornographic cake and eat ours, too. Obviously, it's not going to be that onerous for a newsstand owner to eyeball who might be under 18, and ID them. So while I think legislating that the newsstand owner must restrict the distibution of porno isn't -- let's say, philosophically correct (you're the lawyer) -- it is more or less a favor to parents that can best be formalized through legislation. It's unfortunate that this is the only way to do it, but we're not restricting any adult's access to information. It's too bad the kid will have to beat off to Britney Spears videos instead, but thems the breaks.

This scenario does not apply to people wishing to publish on the internet. IDing people reliably on the net is basically impossible, and setting up any even mildly plausible sort of validation system is beyond the skills of most people. To require it would put up a significant and artificial financial barrier to publishing a number of types of information, and I don't think that's okay. The reasonable solution -- as the justices pointed out -- is for parents to take control of the issue and buy filtering software.

All things being equal, I'd say it's always preferable to put parents in charge of filtering what their children see rather than setting these standards in the law.

Also, I realize I neglected to react to the punching example -- if you want to debate that, I will, but my point was basically that I don't think you can dismiss conventional speech -- images, text or public speaking -- as meaningless based on their content (the sodomy example). I hope we can all agree there are "fire in a crowded theater" type situations. I am made uneasy by it, but I think there has to be a tiny, tiny spot of level ground at the top of the slippery slope.

Just 2 quick responses:

1) We DO require newsstands to ID customers for pornography, so your position above is not really tenable in that regard. All I'm saying is, why not allow a similar requirement on the Internet?

2) A picture is not speech, it's a picture. You can't just declare that conventional speech covers all the categories that you think speech should cover. Furthermore, like it or not, pornography certainly doesn't fall under the category of what ordinary people would think of as traditional speech. I'm all for a freedom of art, pictures, etc., but that's not in the Constitution. Free speech is. If you want to pass a constitutional amendment saying you have a right to art, that's fine with me. I'm on board. But when you just reinterpret the Constitution to agree with you, that sets a bad precedent. A precedent that could logically be used to interpret "person" in the 14th Amendment to include fetuses. And that, I trust, you would NOT like.

1) Because it isn't a reasonable requirement -- it's an unreasonable burden on content publishers in order to achieve a goal that could be better accomplished in other ways. As I say, I don't think newstand IDing is the "right" thing, although it is the "practical" thing. Applying the same standard to the internet is neither.

2) Obviously the first amendment just talks about "speech" and "the press". I hope we can all agree that this requires interpretation -- I doubt anyone would say it extends only or universally to verbal speech (fire in a crowded theater, etc), or that journalists can print anything they'd like (libel laws).

I'm kind of amazed that you're questioning whether images count as speech, actually. I'm no paralegal -- it's tough to find references specifically affirming it. Frankly, I suspect this is because there has never been a challenge to images' ability to qualify as speech. But the Court found in Joseph Burstyn, Inc. v. Wilson that motion pictures are included under the definition of speech, saying that while "[e]ach method (of communication) tends to present its own peculiar problems", "the basic principles of freedom of speech and of the press, like the First Amendment’s command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule." If movies are included, I find it hard to imagine that still pictures are not. Adam Liptak, lawyer for the NY Times says here, when asked about first amendment protections for photography, says that "authentic artistic uses are pure speech as deserving of full First Amendment protection as news reporting is".

Basically, I think you'd be hard-pressed to find a lot of lawyers who don't think that inarguably non-obscene images are protected speech. When you say a picture of ass-fucking is inherently obscene, you're saying that it cannot convey meaningful speech -- that it purely or predominantly appeals to a prurient interest. I disagree. What if the fucker is dressed like Osama, and the fuckee dressed like uncle sam? It might be tasteless and stupid political speech, but I'd say it's political speech. Obviously when you try to draw lines around what constitutes obscene images, you run into a lot of problems.

Your fourteenth amendment example isn't a great one, since the amendment clearly states that it applies to citizens, which are defined as persons born or naturalized in the US -- which clearly doesn't include fetuses, since they haven't been born or attended any citizenship classes. The amendment later promises equal protection to "persons" within the US's control, not citizens, but I assume this "persons" has been interpreted to mean "citizens", given that detainees are currently being provided a limited set of rights and access to the laws. If not, you could of course make an argument based upon fetuses qulifying for "personhood", but I think this is a considerably shakier case than asserting that images count as speech. You might disagree.

1) I simply don't agree, I think it may be a reasonable requirement. I may not have made this clear earlier, but I don't even know how I think about this legislation from a policy point of view. So my defense of it comes more from a procedural basis. This law was passed by a bunch of duly elected legislators who have had time to look at the issue. It was overturned by a bare majority of unelected judges. I am a big fan of judicial restraint in general. When the will of the majority is expressed, I require a good reason to overturn it. And the right to pornography simply doesn't do it for me. And anyway, it seems easy as hell to get around for your average consumer. American porn companies may take a hit, but the fetish markets in Asia and South America will reap the benefit.

2) I'm not saying that courts haven't ruled that free speech encompasses all these other things (including, to some degree, pornography). They have. That's the crux of my bitch. I'm saying they SHOULDN'T have. That case you cite, claiming freedom of speech and the press yields freedom of expression is just such an item. Freedom of expression is NOT in the constitution, and the only reason it's used is so they can say with a straight face that all sorts of things are contained in the First Amendment that really aren't. The First Amendment says what it says, and not a word less or more.

Also, it's not at all surprising that a NY Times lawyer would defend a broad interpretation of the First Amendment. It's distinctly in his client's interest. But even he uses the word "authentic", which implies a limit for things such as pornography.

It comes down to a matter of interpretation. You say there is difficulty in determining what is obscene. I agree. But with your preferred interpretation, there will be equal difficulty in defining what is speech. I argue for a (perhaps only slightly) simpler approach, but clearly the more textually faithful one. If you want to put freedom of expression into the Constitution, I would support it. But it's not in there right now, and I think it's extremely dangerous to just go reading things into that document that just aren't there. It circumvents the intentionally very difficult amendment process.

Your analysis of the 14th Amendment is a little lacking. Yes, the 14th Amendment speaks of citizens, but it goes on to speak of PERSONS after that: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These clauses were clearly intended to protect not just citizens, but all people in America, because if they meant persons to mean just citizens, they would have used that word again. Persons has not been defined to merely mean citizens. The reason it's not being applied to the Guantanamo situation is because the 14th Amendment applies only to states, not to the federal government. Indeed, in Roe v. Wade, the justices addressed this argument specifically, spending considerable time in denying that fetuses were persons under the 14th Amendment. I'm not saying it's the best argument in the world, but the justices dealt with it as they would any real issue, and I find it as tenable an argument as saying pornography is speech.