WE NEED A PLAN. I'VE TOLD A DARK STORY ABOUT THE CHOICES THAT A CHANGING cyberspace will present, and about our inability to respond to these choices. I've linked this inability to three features of our present legal and political culture. In this short chapter, I consider three responses. Of necessity these responses are nothing more than sketches, but they should be enough to suggest the nature of the changes we need to make.
I've said that we should understand the courts' hesitancy as grounded in prudence. When so much seems possible, and when a rule is not clearly set, it is hard for a court to look like a court as it decides what policies seem best. 1
Although I agree with this ideal of prudence in general, we need to move its counsel along—to place it in context and limit its reach. We should isolate the source of the judge's difficulty. Sometimes a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence, is entirely appropriate. But in other cases, judges—especially lower court judges—should be stronger. Lower court judges, because there are many of them and because many are extraordinarily talented and creative. Their voices would teach us something here, even if their rulings were temporary or limited in scope.
In cases of simple translation (where there are no latent ambiguities and our tradition seems to speak clearly), judges should firmly advance arguments that seek to preserve original values of liberty in a new context. In these cases there is an important space for activism. Judges should identify our values and defend them, not necessarily because these values are right, but because if we are to ignore them, we should do so only because they have been rejected—not by a court but by the people.