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Lesson 71 - Introduction and Overview 1

Content Regulation and the
Communications Decency Act of 1996

On March 19, 1997, at 10:00 AM local Washington time, the Supreme Court will hear argument in the case of Reno v. ACLU -- the Communications Decency Act case. You are no doubt familiar with the general outline of the case. The CDA, which passed during the last session of Congress as part of the major overhaul of the Telecommunications Act, prohibits anyone from:

The statute also included certain built-in defenses to prosecution, providing that you could not be prosecuted if you The FCC was authorized to define more precisely the measures that would constitute "reasonable, effective, and appropriate" measures to restrict access to prohibited communications.

Because Congress recognized that there were questions, at least, about the constitutionality of this prohibition, the CDA included a rather special provision regarding the procedure for judicial review of the statute. It provided, first, for a special 3-judge panel to hear any constitutional challenge to the CDA (ordinarily, a challenge to a federal statute would be heard by a single federal district court judge), and, second, that if the government lost the case, that it could appeal directly to the Supreme Court (without going through the usual procedure of having the case heard by an intermediate appeals court).

The trial before the special panel was quite extraordinary. In a sense, the Internet itself was the star witness. The three judges were given a crash course in the new communications technology, a Cook's tour of cyberspace that explained the nature and functioning of Usenet newsgroups, listservers, "mail exploders," the World Wide Web, and the like -- "Internet 101." And the judges clearly paid close attention; their opinion, striking down the CDA as a violation of the First Amendment (and available online at http://www.aclu.org/court/cdadec.html) opened with over 40 pages of detailed factual findings that, as the New York Times' editorialized, "could well serve as a primer for computer-phobic Americans seeking to understand the unique nature of the Internet, and how it differs from earlier forms of communication including radio, television, books and newspapers." It's well worth reading.

And what of the legal analysis? Let's see, in the next few messages (which might be a little longer than our usual posts), if we can fit the CDA into the free speech framework we set forth in the earlier part of this course. We'll check out both the plaintiff's perspective and the government's arguments. Then we'll try to see if we can figure out how the Supreme Court is likely to rule.

Finally, the day after the Oral Arguments at the Supreme Court next week, we will post a report on how they went, from our perspective as listeners sitting in the courtroom.

authors:
Larry LessigDavid PostEugene Volokh



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