----------------------------------------------------------------------------- Fight-Censorship Dispatch #16 ----------------------------------------------------------------------------- Justice Department files appeal, Supreme Court ho! ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- In this dispatch: Justice Department's appeal means long, tortuous process A mysterious "Order on Motion for Clarification" Text of Justice Department's Notice of Appeal July 2, 1996 WASHINGTON, DC -- The Department of Justice yesterday appealed the Philadelphia court's decision striking down the Communications Decency Act, a move that sets the stage for a long, tortuous climb to the Supreme Court. The government's "Notice of Appeal" is a terse, two-page statement saying they "hereby appeal" the "Adjudication and Order entered June 12," the day the special three-judge panel unanimously declared the CDA to be unconstitutional and blocked the Justice Department from enforcing it. Next move is the DoJ's. They have until September 1 to file a "jurisdictional statement" arguing that the Supreme Court should hear their appeal. The Supreme Court doesn't automatically have to accept jurisdiction, notes Ann Beeson, an attorney with the ACLU. "The Supreme Court can still decline to exercise jurisdiction over the case," she says, adding: "They do not have the same kind of discretion they have in a cert petition." All the DoJ has to do is convince the Supremes that there's "still a substantial federal question," says Beeson. "If they're not convinced there is a question, they can decline the appeal." But by all accounts, there's precious little chance of that happening. After Justice files the jurisdictional statement, our attorneys have 30 days to file a response -- and then when the next term begins on October 7, the Supremes will meet to discuss the case. (If the procedure is anything like granting cert, the votes will be cast in a secret conference attended only by the justices and the actual vote won't be disclosed.) The climb to the nation's highest court will be only partly over by then, since the court's decision to consider our case marks the start of the briefing schedule. The government will have 45 more days to file their arguments saying why the Philadelphia decision was wrong; we have 30 more days to rebut. If the Department of Justice -- hardly the speediest bureaucracy in DC -- uses all of their alloted time, the paperwork won't be complete until Christmas. And then the Supremes need plenty of time to digest it. So everyone's best guess is that the Supreme Court will hear the combined ACLU and ALA coalition lawsuits early next year -- just in time for the rescheduled Electronic Freedom March on the nation's Capitol. As I wrote in a recent HotWired column: "The ACLU predicts the Supreme Court will issue a decision near the close of the next term, which ends in July 1997 -- just in time for Congress to try again." +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ THE MYSTERIOUS "ORDER ON MOTION FOR CLARIFICATION" +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ You might be surprised by a mysterious sentence in the text of the Justice Department's notice of appeal talking about a "Order on Motion for Clarification" the court issued on June 28. Not to worry. The judges ruled so vigorously in our favor that the DoJ wanted to be sure the government could prosecute anyone they think may violate other parts of the CDA. "Because of the wording of the court's actual order, they unwittingly called into question whether the DoJ could enforce the provisions of the CDA that we didn't challenge," says Ann Beeson from the ACLU. The Philadelphia court quickly issued the clarification. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ TEXT OF JUSTICE DEPARTMENT'S "NOTICE OF APPEAL" +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________ AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION et al., Plaintiffs; : No. 96-963 : v. : : JANET RENO, in her official : capacity as Attorney General of : the United States, Defendant. : _____________________________________________________________ AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION INC., et al., Plaintiffs; : No. 96-1458 : v. : : UNITED STATES DEP'T OF JUSTICE, : et al., Defendants. : _____________________________________________________________ DEFENDANTS' NOTICE OF APPEAL Notice is hereby given that defendant Janet Reno, in her official capacity as Attorney General of the United States, hereby appeals, pursuant to section 561(b) of the Telecommunications Act of 1996, Pub. L. No. 104-104, Sec.561(b), 110 Stat. 143, to the Supreme Court of the United States from the Adjudication and Order entered June 12, 1996, as clarified by the Order on Motion for Clarification entered on June 28, 1996, in American Civil Liberties Union et al. v. Reno, Civ. A. No. 96-0963 (E.D. Pa.). Notice is also hereby given that defendants United States Department of Justice and Janet Reno, in her official capacity as Attorney General of the United States, hereby appeal, pursuant to section 561(b) of the Telecommunications Act of 1996, Pub. L. No. 104-104, Sec.561(b), 110 Stat. 143, to the Supreme Court of the United States from the Adjudication and Order entered June 12, 1996, as clarified by the Order on Motion for Clarification entered on June 28, 1996, in American Library Ass'n, et al. v. Department of Justice, et al., Civ. A. No. 96-1458 (E.D. Pa.). Respectfully Submitted, MICHAEL R. STILES United States Attorney MARK R. KMETZ Assistant United States Attorney FRANK W. HUNGER Assistant Attorney General Civil Division DENNIS G. LINDER Director, Federal Programs Branch [signed] ANTHONY J. COPPOLINO Trial Attorney [signed] JASON R. BARON PATRICIA M. RUSSOTTO Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 901 E. Street N.W. Washington, Dc 20530 Tel: (202) 514-4782 Date: July 1, 1996 ----------------------------------------------------------------------------- MEA CULPA. In F-C Dispatch #13, I wrote that the Washington Post ran an article "on the first page of the Outlook section bashing "self-indulgent dross" and "crap" on the Net. I neglected to mention that John Schwartz and Kara Swisher had an excellent rebuttal inside. ----------------------------------------------------------------------------- Mentioned in this CDA update: HotWired column on what kind of net-censorship Congress will try next: http://www.hotwired.com/netizen/96/24/declan4a.html Fight-Censorship Dispatch #13: http://fight-censorship.dementia.org/dl?num=2741 Fight-Censorship list <http://fight-censorship.dementia.org/top/> Int'l Net-Censorship <http://www.cs.cmu.edu/~declan/international/> Justice on Campus <http://joc.mit.edu/> This document and previous Fight-Censorship Dispatches are archived at: <http://fight-censorship.dementia.org/top/> To subscribe to future Fight-Censorship Dispatches and related announcements, send "subscribe fight-censorship-announce" in the body of a message addressed to: majordomo@vorlon.mit.edu Other relevant web sites: <http://www.aclu.org/> <http://www.cdt.org/> <http://www.vtw.org/> <http://www.cpsr.org/> <http://www.epic.org/> <http://www.ala.org/> <http://www.eff.org/> <http://joc.mit.edu/> -----------------------------------------------------------------------------