Some of the dialog on the Internet surely tests the limits of conventional discourse. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. 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 concept of due process is every bit as important to our form of government as is free speech. I do not agree that a facial reading of this statute supports that conclusion.