In this respect, the Internet would ultimately come to mirror broadcasting and print, with messages tailored to a mainstream society from speakers who could be sure that their message was likely decent in every community in the country. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Even if a broad search will, on occasion, retrieve unwanted materials, the user virtually always receives some warning of its content, significantly reducing the element of surprise or 'assault' involved in broadcasting. Therefore, it is highly unlikely that a very young child will be randomly 'surfing' the Web and come across 'indecent' or 'patently offensive' material. But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors.
Prosecutors come and go.
Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments. I do not agree that a facial reading of this statute supports that conclusion. Contrary to the Government's suggestion, Pacifica does not answer the question of whether the terms pass constitutional muster in the present case.