What’s wrong with Lessig’s “Harmful To Minors” tag?

In Code v 2.0 Lessig advances an argument about how to deal with harmful content on the internet (i.e., how to help parents keep their kids from checking out the plethora of online porn).  You can find the argument in Chapter 12 on the wiki version of the book.  Search for “kids-mode-browsing”: page 253 in my old-fashioned printed book, with dog-eared page.

I do not follow the argument.  But it seems to me that it is so obviously objectionable that I must be missing something important here.  Probably there is some legal nuance I am not sensitive to.  Ah, the delicacies of the intelligence that ever elude.  I would be grateful if any random reader (or friend) who comes along might help me see the light.

Lessig’s argument is in service of his proposal for a “kids-mode-browsing” (KMB) based on a code-level implementation of a “harmful to minors” ([H2M]) tag.  The proposal is meant to address both the producer (speaker) and consumer (listener) sides of the speech transaction in a way that is consistent with both a viable interpretation of First Amendment rights and the perceived need to protect kids from content society deems harmful to them.  The implementation of the tag shifts the burden of identifying harmful content to content producers and purveyors (i.e., websites).  The implementation of the browsing functionality takes advantage of this tag to enable parents to configure their kids’ computers (or desktop profiles) such that content so-tagged will not be objectionable.

(Preliminary) Response to Lessig

A number of political theorists have concluded that the new set of technologies and practices known as the internet undermines some of the core epistemic, civic, and moral conditions for democratic culture.  See, for instance, my post on Cass Sunstein’s Republic.com 2.o.  I disagree with Sunstein et. al. but I find their arguments worth addressing.

One way of addressing these arguments is to take them seriously but to offer some kind of response, perhaps provisional, as to how the challenges contained therein might be met.  This is how I have been reading the work of cultural critic and Stanford Law Professor Lawrence Lessig (at least this is how I have been reading it this week).  Lessig’s work is probably the most important of that which tries to respond to the problems laid out by Sunstein and others.  It is the most important not only because the most influential, but also because the most radical. Lessig’s work is also usefully representative insofar as it aims to respond to the problems posed by seeking to restore the familiar equilibria of liberal democracy as we have known it for quite some time now.