Justice Dept completes second phase of CDA appeal, from HotWired

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Thu, 3 Oct 1996 04:47:33 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship@vorlon.mit.edu
Subject: Justice Dept completes second phase of CDA appeal, from HotWired

http://www.hotwired.com/netizen/96/40/special3a.html

HotWired, The Netizen
3 October 1996

CDA and the Supremes

by Declan McCullagh (declan@well.com)
Washington, DC, 2 October

   Racing against a midnight deadline, the Justice Department late
   Monday evening completed the second phase of its appeal to the Supreme
   Court after its initial loss in the Communications Decency Act
   lawsuit.

   The solicitor general only has to argue in the 28-page jurisdictional
   statement that there's a substantial constitutional issue at stake in
   this lawsuit - something transparently obvious to anyone who's been
   following the CDA court battle.
                   
   The next move is up to the attorneys from the American Civil Liberties
   Union and the American Library Association. They plan to file a motion
   asking the High Court to uphold the Philadelphia court's decision
   without scheduling a full hearing.

   Chris Hansen, who heads the ACLU legal team handling the CDA case,
   says that if the Supreme Court grants their motion, it would
   effectively be saying "the lower court was so deeply correct" that the
   justices don't need to learn more about the case. As a legal tactic,
   it means the more censor-happy justices couldn't water down the
   Philadelphia judges' unanimous decision upholding free speech online.
   "Anytime the Supreme Court decides the case with a full briefing,
   there's no guarantee that we'll win - or win in the same terms,"
   Hansen says.
           
   But because this is a precedent-setting and controversial lawsuit, the
   Supremes almost certainly will want to hear the appeal themselves.
   When the justices place this case on the court's calendar, they'll
   likely give both parties a few months to file the next stage of the
   lawsuit, which will be a strained and torturous collection of
   arguments from the government trying to explain why the lower court
   was wrong. Then oral arguments will be held next spring.
   
   The solicitor general's jurisdictional statement itself largely
   summarizes the arguments the government has already made. It does
   additionally argue, however, that a cable television indecency case
   the High Court decided after the June CDA decision buttresses the
   government's defense of the law:
   
    "Because the CDA's definition of indecency is almost identical to the
     decision [the Supreme Court] upheld against a vagueness challenge ...
     that decision reinforces the conclusion that the CDA's restrictions
     are not unconstitutionally vague."
   
   Not so, says the ACLU's Hansen: "Even if that were true, it wouldn't
   change the result in our case. All three judges in our case thought
   the CDA was flawed in other ways besides vagueness."
                         
   The government also cites the Shea v. Reno lawsuit - a weaker case
   that challenges half of the CDA - that Joe Shea filed in Manhattan
   earlier this year on behalf of his online publication, the American
   Reporter. Shea won only a partial victory on 29 July, which the DOJ is
   now exploiting: "The three-judge court in Shea v. Reno ... held that
   the CDA's definition of indecency is not unconstitutionally vague. The
   district court in this case erred in reaching a contrary conclusion."
       
[...]