The Justice Department was granted a 30-day extension to file a statement outlining its appeal of a second ruling against the federal Communications Decency Act, according to sources close to the case.
The Supreme Court granted the extension for the filing, known formally as a "jurisdictional statement," which is required before the appeal can proceed. Government attorneys requested the delay because they needed more time to consolidate the two CDA appeals it is now bringing before the court.
The filing involved the case of Joe Shea, editor of the American Reporter online newspaper, who recently won his challenge to the CDA before a special three-judge panel in Manhattan. Shea argued that the law, which makes it a crime to post indecent or patently offensive material available to minors online, infringes free-speech rights online that would otherwise be protected in print.
This decision followed a higher-profile challenge to the law filed by the American Civil Liberties Union, which also won its fight against the CDA on the grounds that its provisions are unconstitutional.
The Justice Department said it plans to appeal both cases to the Supreme Court.
The ACLU brief was expected to be filed on September 1, but the department said it needed more time to most likely consolidate the cases, according to Mike Godwin, legal counsel with the Electronic Frontier Foundation. "We have two cases here in which the CDA was found unconstitutional and this really signifies that the cases will be brought up and argued together," he said.
Until the case has made its way through the entire legal process, Godwin said, "the law is not applicable to anyone and is not enforceable."
Shea's attorneys, who had not been notified of the extension before it was requested, played down the action. "I didn't expect it, but I'm not surprised," said James Stronski, an attorney working on the Shea case. "They are probably going to consider our case with the ACLU's."
The consolidation is expected to be officially filed by mid-fall with oral arguments to follow.