The following is a commentary Max Hailperin wrote immediately following the Supreme Court's decision on 2004-06-29 in the case of Ashcroft v. ACLU. He submitted it to the Minneapolis Star Tribune, but it wasn't published.

Advocates of free speech were greatly relieved not to witness a ticking bomb blow up in the Supreme Court's hands this week. Perhaps this sense of relief explains why so few noted that the Court had not defused the bomb, but merely tossed it onward. The case in question concerned shielding children from pornography on the web, but the ticking bomb is more fundamental: it is the Court's own standard for judging such cases, the "least restrictive means" test.

Under the Court's precedents, a law such as the Child Online Protection Act (COPA) can only pass muster if the government shows that no alternative less restrictive of constitutionally protected speech would shield children equally well. So far, so good; we certainly wouldn't want to throw out more free-speech babies with the smut bathwater than need be.

Unfortunately, the Court's standard has a flip side: Congress may do whatever it takes to shield children. No burden on protected speech is too great, so long as no lesser burden would be equally effective. If the government shows that it cannot throw the bathwater out without hundreds of babies in it, the Court's logic does not demand it put up with bathwater left to grow foul. Instead, it says: go ahead, do what it takes.

The real danger is that "do whatever it takes" is the logic of an arms race. Consider for a moment what might have happened had the Court's 5-4 decision flipped the other way -- as some signs suggest it nearly did. What would the impact have been, had the Court allowed COPA to go into effect? The ACLU is probably right that some legitimate, non-pornographic messages would have been chilled, but that isn't the big problem. The big problem is how the commercial pornographers would have responded. Therein lies the arms race.

In theory, the pornographers could have responded by moving their promotional "teaser" images behind the credit card or age verification screens they already possess. However, the teasers are too critical to the pornographers' business model, and COPA too narrowly tailored, for this to be the actual outcome. The pornographers would continue using teasers, by taking advantage of one of the many loopholes in COPA. (COPA is full of loopholes precisely because Congress crafted it to be no more restrictive of speech than necessary.)

What would Congress do next? If a narrowly tailored law was rendered ineffective, Congress would be fully justified to enact a broader law, more restrictive of speech. The arms race would be on in earnest.

There is an inherent extremism to the argument that any amount of damage to free speech is acceptable, so long as no lesser damage would suffice to wall off smut. This extremism is made more apparent by the internet, because the internet is so easily changed. What is sufficient to wall off smut one day becomes insufficient the next, because the pornographers change their practices.

The Court's 5-4 split hides a worrisome consensus in favor of leaving the bomb ticking. Both the five justices in the majority and the three justices in the main dissent saw nothing wrong with the "least restrictive means" standard.

For Justice Kennedy's majority, it was easier to leave precedent unchallenged, simply saying the government had not yet proved that less restrictive options would be less effective. For Justice Breyer's dissenters, COPA could be upheld as a least restrictive means. Neither asks the fundamental question: Just how far are we willing to go?

Free speech deserves more affirmation as a value than the majority was willing to accord it. To defuse the bomb, they should have had the courage to agree with Breyer that COPA was a least restrictive means, but gone on to argue that it is still too restrictive anyway. The Court has previously said that one should not burn down the house to roast a pig. That is every bit as true if one lacks an oven.