While both sides in the landmark case of ACLU vs. Janet Reno have long assumed that the case would ultimately be decided by the Supreme Court, the Justice Department has not decided whether it will file an appeal.
The government has 20 days to decide if it will appeal the ruling by a special panel of three federal judges in Philadelphia, which found the CDA unconstitutional after rejecting the government's defense of the CDA. Some legal scholars said they would not be surprised if the department dropped the case because the Supreme Court would most likely refuse to hear an appeal, based on the lower court's decision.
Immediately after yesterday's ruling, proponents of the law sought to dampen the euphoria of the ACLU's supporters by predicting not only that the case would go to the Supreme Court, but also that the ruling would be overturned. The CDA bans any material deemed indecent or patently offensive that is accessible to minors on the Internet.
"The reports that the Justice Department have made an appeal are definitely wrong," said Joe Krovisky, spokesman for the Justice Department. "We still have several factors to think about before making a decision."
One of those factors is the outcome of American Reporter vs. Reno, the second major challenge to the CDA, filed in a Manhattan federal court by online newspaper editor Joe Shea in February. Final briefs for that case are being submitted today, and Randall Boe, lead attorney for plaintiffs, said he expects a quick decision.
"I assume the judges will touch on some of the same issues the Philadelphia judges touched on, but until they rule I don't know what's going to happen," Boe said.
In addition, the Justice Department is monitoring a third case, Denver Area Telecommunications Consortium vs. FCC, which could be decided as early as this month. This case involves the definition of what constitutes indecent content on cable television--perhaps the closest thing to the Internet to go before the courts.
Off the docket, the department is more closely examining technology designed to help parents monitor what material their children can and cannot see. "Some companies are developing technology to prevent their children from tapping into certain things on the Internet and that may be available in the next few weeks," Krovisky said. "If it comes out we definitely want to look at it."
If the government does decide to go ahead with an appeal, some legal analysts are predicting that the Supreme Court would decline to review the decision rendered yesterday.
"It's unlikely that they'd grant review at all," said William Banks, professor of law at Syracuse University. "The justices' usual instructions to clerks is not to recommend that cert [review] be granted unless a lower court has misconstrued doctrine or is in conflict with another court. This ruling doesn't upset any settled doctrine."
Even if they were to grant an appeal, Banks and others say, the record of this particular Supreme Court would indicate tough sledding for the CDA. "While this is a very conservative court politically, it also has a strong libertarian streak," he said.
And both sides predict that any definitive action by the justices would be at least a year away.
"It would be treated like any other Supreme Court case," said Christopher Hansen, legal counsel for the ACLU. "The court will ask for briefs and arguments in winter or early spring and would most likely have a decision by next summer."