Supreme Court to decide CDA

The Supreme Court will decide whether the Communications Decency Act is constitutional, it announced today.

During a conference meeting, the court agreed to hear a government appeal of a ruling handed down in June by a Philadelphia federal court in ACLU vs. Reno, which found that the CDA violates First Amendment rights of free speech.

The Supreme Court's eventual ruling will decide the fate of freedom of expression on the Net. The court intends to hear the case in March, according to American Civil Liberties Union staff lawyer Ann Beeson. The preliminary injunction against enforcement of the CDA imposed by the Philadelphia court will remain in place until then.

The CDA came into being as Section 507 of the sweeping telecommunications reform legislation now known as the Telecommunications Act of 1996, which was signed by President Clinton on February 8. Introduced by Senator James Exon (D-Nebraska), the CDA was a response to a groundswell of concern about pornographic and otherwise questionable content accessible to virtually anyone with a computer, including minors, on the Net.

The law imposes penalties on anyone who knowingly "makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image, or other communication that is obscene or indecent, knowing that the recipient of the communication is under 18 years of age." Those found guilty under the law could be sentenced to a maximum of two years in prison and fined up to $250,000.

The cyber-rights community was grateful that the Supreme Court will settle the question of whether the federal government has the right to regulate online content.

"I've always believed that the court would want to speak directly to these issues. I'm incredibly pleased that it's going to give this their full attention," said Mike Godwin, co-counsel in the case for the Electronic Frontier Foundation. "We have always aimed to establish in a broad way that the First Amendment applies in cyberspace."

Beeson agreed. "We are definitely not surprised that the Supreme Court decided to accept the case," she said. Beeson added, however, that the Philadelphia decision was strong enough that the court could have simply affirmed its ruling, thereby approving its interpretation of the law without actually hearing testimony.

Although ACLU lawyers may have been hoping for a victory without having to go back to court, a ruling from the Supreme Court will provide the definitive word on the subject.

"We're looking forward to a ruling from the Supreme Court. In the meantime, there will be a lot of paper going back and forth," said Jonah Seiger of the Citizens Internet Empowerment Coalition, the coalition of online users, content providers, Internet companies, and other organizations that filed a separate challenge to the CDA. The coalition's suit was consolidated with ACLU in its fight against the CDA in Philadelphia.

According to the Supreme Court's orders issued today, the government must file its first brief in the case by January 21. The ACLU has to file its response by February 20. The court can still affirm the injunction of the Philadelphia federal court.

Lawyers for the ACLU and U.S. Attorney General's Office had worked hard to push Reno vs. ACLU to the top of the court's agenda for this session. But until early this week, both sides feared that a decision whether to hear the case would be held up by legal questions concerning another CDA challenge in New York.

A Manhattan federal court had issued a separate preliminary injunction against the CDA in July on behalf of Joe Shea, editor of the American Reporter online newspaper. Shea had filed a case against the government similar to the ACLU's in April, arguing that the CDA limits freedom of the press. The ACLU case is more concerned with freedom of expression for everyday citizens.

Last week, Shea asked the Supreme Court to combine the New York and Philadelphia cases. The court still has not announced whether it intends to combine the two cases.

The government filed its appeal July 1 after the ACLU convinced a special panel of three federal judges in Philadelphia that the CDA violates the First Amendment. ACLU plaintiffs filed suit against the CDA the same day the bill was signed in February.

The Philadelphia panel took extensive testimony from both sides during a hearing to decide whether to impose a preliminary injunction on the law, which it did on June 13.

Although the ACLU and other groups contend that the CDA is unconstitutional under the First Amendment, during the Philadelphia trial, neither the ACLU nor the Justice Department addressed the fundamental constitutional issues in the Philadelphia proceedings. Instead, they focused on practical and technological questions.

Now, both sides will have to reshape their arguments to surround the constitutionality of the law.

The ACLU's original case focused on the issue of deciding who would have jurisdiction over the Internet and boiled down to two points: that the Net is so enormous and various that it is impossible for a government agency to monitor adequately and that such supervision is rendered unnecessary by filtering technology that lets parents provide oversight themselves.

In response, the government argued in favor of these three ways to block access to minors: requiring sites to ask for credit card numbers before releasing content to confirm age and identification; requiring sites to determine the age of visitors before letting them log on; and requiring sites to include tags in their Web addresses if they contain possibly objectionable content.