We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. Such a choice strikes at the heart of speech of adults as well as minors. The government makes an extraordinary argument in its brief. I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds. 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. The court brushed aside years of U.S. Supreme Court rulings which not only found the indecency standard sufficiently clear, but which applied that very standard to radio, television, telephone and cable use. Click here to read more of Exon's response.