---------- 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." [...]