03/02/2020
Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993),
among other cases, appellees offer an additional reason why, in their view, the
CDA fails strict scrutiny. Because so much sexually explicit content originates
overseas, they argue, the CDA cannot be "effective." Brief for Appellees
American Library Association et al. 33-34. This argument raises difficult issues
regarding the intended, as well as the permissible scope of, extraterritorial
application of the CDA. We find it unnecessary to address those issues to dispose
of this case.
46 For the full text of §223(e)(5), see n. 26, supra.
47 Thus, ironically, this defense may significantly protect commercial purveyors
of obscene postings while providing little (or no) benefit for transmitters of
indecent messages that have significant social or artistic value.
48 929 F. Supp., at 855-856.
49 As this Court long ago explained, "It would certainly be dangerous if the
Legislature could set a net large enough to catch all possible offenders and leave
it to the courts to step inside and say who could be rightfully be detained and
who should be set at large. This would, to some extent, substitute the judicial for
the legislative department of the government." United States v. Reese, 92 U.S.
214, 221 (1876). In part because of these separation of powers concerns, we
have held that a severability clause is "an aid merely; not an inexorable
command." Dorchy v. Kansas, 264 U.S. 286, 290 (1924).
50 See also Osborne v. Ohio, 495 U.S. 103, 121 (1990) (judicial rewriting of
statutes would derogate Congress's "incentive to draft a narrowly tailored law in
the first place").
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