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Lesson 75 - Introduction and Overview 1

Content Regulation and the
The CDA: Rebuttal and Conclusion

So what's our guess as to the bottom line on the CDA?

Well, as we saw in the first few messages, the law will have to pass strict scrutiny: It'll have to be the least restrictive means of serving a compelling interest. The Supreme Court may view the CDA as pretty much a ban on free postings of "indecent" material, and will find that there are alternatives to this ban -- such as filtering and rating -- that are less restrictive. Your authors have split on the likely outcome of this case. Two out of three of us think the CDA will be held unconstitutional.

What about the argument in the previous message; the argument that the defenses to the CDA actually make it much less restrictive than it appears, and therefore indeed make it the "least restrictive means" (or at least something pretty close to it) of shielding children from online "indecency"?

Our majority believes that the defenses aren't really going to help people out. The defenses require Web speakers to use "reasonable, effective, and appropriate" steps -- or "verified" adult access code schemes -- to shield children, and in our view no such steps currently exist.

A *parent* might do a pretty good job of shielding children. A specifically mandated rating system might do a pretty good job of shielding children, when coupled with software that parents install. But Internet speakers can't by individually take "reasonable, effective, and appropriate actions" to shield children, or implement a "verified" adult access scheme (unless they're willing to charge on a per-transaction basis). The defenses just won't apply to them.

We think the only way to make the defenses a really viable protection for speakers is to read them very broadly -- so broadly that a speakers would be protected even if they take some rather *in*effective steps to block access by children to their sites. But such a reading would make the CDA next to useless as a shield, and would thus not be a particularly faithful way to interpret the statute.

On balance, therefore, we believe that the Court will read the defenses as requiring speakers to take fairly effective steps to deny access to children. And the only such step that we can see speakers unilaterally taking is withdrawing all the free "indecent" material that they have posted. Thus (by a 2-1 vote) we think that the defenses won't do much to decrease the CDA's breadth, and that the Court will conclude that the CDA is still quite restrictive -- a lot more restrictive than, say, a mandatory rating system would be. The CDA will therefore be declared unconstitutional.

Still, all this is rather up in the air, and reasonable minds can differ (just as our minds, which we all think are quite reasonable, do). In a few months, we'll know what the Justices have to say about all this.

authors:
Larry LessigDavid PostEugene Volokh



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