cr> re: Is CDA constitutional?


Richard Moore

Date: Fri, 12 Jan 1996
Sender: •••@••.•••
Subject: Re: cr> Is CDA constitutional?

In a message dated 96-01-11 21:30:18 EST, you write:

>The Communications Decency Act is so far-fetched that I can't imagine any
>court upholding its constitutionality.  Not to give the pro-censorship
>folks any fodder, but can anyone on this list imagine any arguments based
>in exisitng doctrine that would support the statute against a First
>Amendment challenge?

There is a basic flaw in the logic that says that the CDA is
unconstitutional.  "Constitutionality" is not a toggle, black or white, yes
or no, on or off.  There are two kinds of "unconstitutionality.

"Patent" or facial unconstitutionality, occurs when there is no
constitutional way to interpret a given statute.  It only occurs rarely.

"Latent" or interpretive unconstitutionality, occurs when a statute is
interpreted in a manner not consistent with the constitution.  Courts will
always presume a statute to be constitutional, and rather than rule it
unconstitutional, will prescribe certain interpretations.

Given the specific intent requirements in the CDA, I doubt it will be ruled
patently unconstitutional.




 Posted by Richard K. Moore (•••@••.•••) Wexford, Ireland
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