It's Bruce Ennis vs. the CDA
The former director of the ACLU will represent the various groups opposing the Communications Decency Act before the Supreme Court this month.
Ennis helped defeat the law in a federal court in Philadelphia last summer, when it was deemed unconstitutional. Along with the American Civil Liberties Union, Ennis argued against the CDA on behalf of a group led by the American Library Association, known as the Citizens Internet Empowerment Coalition.
Although the ACLU led the challenge to the CDA, filing a lawsuit the day after it was signed by President Clinton on February 8, 1996, lead attorney Chris Hansen will not field what are expected to be numerous questions from the Supreme Court or make any statements during the landmark trial. The CDA made it illegal to knowingly transmit indecent material to minors over the Net.
When the Philadelphia court combined the cases against the Justice Department, both legal teams continued to file their own briefs and make separate arguments. But the groups have worked closely since then and say they will continue to do so even though the court denied a motion yesterday to let two attorneys argue against the government's appeal.
Ennis earned the role the Sunday before last during a mock trial before a panel of three "judges" played by professors and lawyers, Ann Kappler, staff attorney for the ALA coalition, said today.
Hansen and Ennis answered questions and made arguments as though they were before the high court. In the end the panel voted on Ennis, who served as national director of the ACLU from 1976 to 1981.
"This is a common thing in the Supreme Court that when two cases are consolidated, one person argues the case," said Steven Shapiro, the current national legal director for the ACLU, who is also working on the CDA case.
"We will continue to work with Bruce as he prepares the legal arguments. We all feel very comfortable with him, and there is mutual respect in both directions. The differences in the briefs are much less important than the similarity--that this is a misguided and dangerous law that stands to censor speech on the Internet," he said.
The court only allows 30 minutes for each side to make arguments and answer questions. In the meantime, justices will review the lower court's decision and briefs from the government, ACLU and ALA, Shapiro said. The government will present its side first.
"The real point of the hearing is to answer questions and persuade them, not to re-read your brief," he added. The lawyers are working now to counter the government's case.
According to a brief filed on January 21, the government will argue that the CDA is constitutional because the First Amendment does not protect the right to distribute pornography to minors. The ACLU and ALA will argue that the CDA is too broad, vague, and ineffective.
However, the ACLU's plaintiffs are mostly nonprofit groups, so the coalition focused its brief on how the CDA could criminalize adult speech--in newsgroups, email, chat rooms, commercial online services, and the Web--about such topics as AIDS, safe sex practices, rape, gay and lesbian issues, and human rights.
The ALA brief laid out other arguments; its plaintiffs also include commercial interests such as Microsoft and America Online. Lawyers said indecent material on the Internet must be actively sought out so that parents have the ability to block or screen content on the Internet with software.
Attorneys close to the case say their clients' differences will not come out in the short stint before the court.
"If we were talking about a five-hour argument you might be able to get into the subtleties and there would be some differences," David Sobel, staff co-counsel for the ACLU, said today. "But I can't see anything that would come up in 30 minutes that would really be different if Bruce Ennis or Chris Hansen were arguing the case."