WASHINGTON, D.C.--ACLU v. Reno, the challenge to censorship provisions of the Communications Decency Act, is headed for the Supreme Court.
In a brief letter to Senator James Exon (D-Nebraska) -- who introduced the law -- Deputy Attorney General Jamie Gorelick confirmed that the government planned to appeal the June 12 federal court ruling that censorship provisions of the CDA are unconstitutionally vague and a violation of the First Amendment right of free speech.
Christopher Hansen, an attorney on the ACLU v. Reno team, said, "The lower court's extensive findings of fact in the case leave us in an excellent position to demonstrate to the Supreme Court the unique nature of the Internet. We look forward to seeking an affirmation from the highest court in the land that, no matter what the medium, the message should be protected by the First Amendment."
In a related decision, the Supreme Court today handed down its ruling in Denver Area Educational Telecommunications Consortium (DAETC) et al. v. FCC, in which the ACLU argued that sections of the 1992 Cable Act requiring or permitting cable operators to censor "indecency" were a violation of the First Amendment.
Marjorie Heins, an attorney on DAETC v. FCC as well as ACLU v. Reno, said that the ACLU was "optimistic," given today's decision, that the Court would uphold the federal three-judge panel's ruling protecting free speech in cyberspace.
"Today's ruling affirms that the Court recognizes the significance of First Amendment issues, regardless of whether Congress directly enacts a censorship law or attempts to relegate the censorship task to a third party, such as cable operators," Heins said.
The ACLU and other petitioners in the DAETC case argued that Section 10 of the 1992 Cable Act, implemented by the FCC and the United States, violated First Amendment freedoms because it strongly encouraged cable companies to censor so-called "indecency" on cable television access channels under vague standards.
In a mixed decision, the Supreme Court ruled that the law amounted to coercive government action against protected free speech, and that provision (Section 10(b)) of the 1992 Cable Act was not the "least restrictive means" of blocking children from viewing so-called indecency on cable television. Section 10(b) requires cable operators to scramble all "indecent" leased access programming that they do not ban outright.
The Court also struck down Section 10(c) of the law, which allowed cable companies to censor sexually explicit programming on nonprofit, community -based and public access channels. But the Court upheld Section 10(a), which encouraged operators to censor "indecency" on for-profit, leased access channels.
In ACLU v. Reno, the government also faces a "least restrictive means" burden of proof, which it did not meet when it presented its case in federal district court earlier this year. In a resounding affirmation of First Amendment rights, the three-judge panel rejected the government's arguments for the censorship law, saying that "the Internet deserves the highest protection from governmental intrusion."
The ACLU filed its legal challenge to the Communications Decency Act on February 8, the day it was signed into law by President Clinton, arguing that provisions of the CDA were unconstitutional because they would criminalize expression that is protected by the First Amendment.