The Justice Department has decided to appeal a recent ruling against the Communications Decency Act but could face a new obstacle posed by a Supreme Court decision today in a separate case on cable pornography.
The high court rejected portions of the 1992 Cable Act that banned material considered indecent from both leased or public-access channels. The decision, which ruled the law's provisions unconstitutional under the First Amendment, might become an important factor in free-speech arguments made in the case of ACLU vs. Janet Reno if the court agrees to accept the appeal.
of appeal by DOJ
The cable ruling "provides a lot of optimism to the plaintiffs in the CDA challenge because it shows that the Supreme Court is not prepared to uphold any statute enacted by Congress in the name of protecting children from indecent material," said David Sobel, legal counsel for the Electronic Privacy Information Center, an ally of the ACLU. "I think that provides a strong basis for the CDA appeal, and I think it's a good sign."
Other attorneys disagree. "The fact that the Supreme Court struck down the law for cable has no impact on what it's going to say about the Internet--or television or radio, for that matter--because they are all clearly different mediums, and the three-judge panel in Philadelphia came to that conclusion in their ruling," said Marshall Dyer, an Oklahoma attorney and publisher of NetWatchers, a monthly online magazine covering developments in the law and policy of cyberspace.
Such conflicting assessments reflect the difficulty in predicting the fate of the CDA and other First Amendment cases. The two sections of the cable law at issue in today's case, Denver Area Consortium vs. FCC, were decided on split votes of 6 to 3 to reject the provision on leased channels and 5 to 4 on public-access broadcasts.
"As cable and telephone companies begin their competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny," Justice David Souter wrote in one of the court's opinions. "And as broadcast, cable, and the cyber-technology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others."
The court did rule, however, that Congress can give cable companies the right not to broadcast material they deem offensive on leased channels. "The difference is the difference between a permit and a prohibition," Justice John Paul Stevens said.
The law defines indecent programs as those that carry "sexual or excretory activities or organs in a patently offensive manner." Unlike obscene content, indecent material is protected by the Constitution.
That definition could be a key factor if the court decides to hear ACLU vs. Reno. The CDA bans any material deemed indecent or patently offensive that is accessible to minors on the Internet.
The Justice Department must file its appeal by Tuesday to meet a 20-day deadline following the Philadelphia ruling. If the justices decide to accept the case, hearings won't begin until late fall or early winter.
Jamie Gorelick, deputy attorney general, sent a letter to Senator James Exon (D-Nebraska)'s office late Thursday afternoon informing the lawmaker of the decision to file an appeal. Exon introduced the CDA, which was enacted as part of the landmark Telecommunications Act signed in February.
Even some of the CDA's staunchest supporters said they were surprised that the department waited so long to appeal. "I was surprised it took this long," Sobel said. "I would have assumed that politically they were going to appeal while the story was still hot."