Following a landmark victory in June for free speech rights in cyberspace, ACLU v. Reno now awaits Supreme Court action. ACLU v. Reno (or Reno v. ACLU as the case will now be known in the Supreme Court) represents the first legal challenge to censorship provisions of the Communications Decency Act (CDA).
Last spring, a federal court in Philadelphia issued a preliminary injunction barring the government from enforcing the challenged provisions of the CDA. The preliminary injunction opinion makes clear that the lower court agreed with the ACLU's view that the CDA's ill-conceived effort to censor speech in the unique medium of cyberspace violates the First Amendment.
The government's decision to appeal the preliminary injunction ruling presents the Supreme Court with its first opportunity to consider how traditional free speech principles should be applied to the Internet. The Supreme Court's resolution of that question will be critically important to the future of what one judge described as "the most participatory form of mass speech yet developed."
The case has been on an accelerated track from the beginning. Anticipating legal challenges and desiring a speedy resolution, Congress wrote into the CDA an expedited path to the Supreme Court's door. Because of the special review provisions, the procedural route to the Supreme Court is somewhat different than usual. Following is a "road map" identifying the key players and describing the process that will unfold as the case makes it way to an ultimate resolution.
The ACLU filed its legal challenge to the CDA on February 8, 1996, the day it was signed into law by President Clinton.
The CDA makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is "indecent" or "patently offensive" on computer networks if the speech can be viewed by a minor.
The ACLU argued in the lower court that the censorship provisions are unconstitutional becausethey would criminalize expression that is protected by the First Amendment and because the terms "indecency" and "patently offensive" are unconstitutionally overbroad and vague.
Several weeks later, a second challenge was filed by nearly 30 plaintiffs, including the American Library Association. That suit, known as ALA v. DOJ, was subsequently consolidated with Reno v. ACLU. Although the two cases are consolidated and the legal teams are working together, each plaintiff group has filed separate briefs throughout the case and will continue to do so.
A three-judge panel was appointed to hear the motion for preliminary injunction, and five days of hearings were scheduled during March and April. The panel consisted of Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter.
The preliminary injunction proceedings included five days of live testimony, written testimony, documentary evidence, and detailed stipulations about the nature of the online medium. The decision issued by the District Court contained over 400 separate findings of fact that included information about the nature of communication and content in the cyberspace medium.
In its appeal, or Jurisdictional Statement, filed on September 29, the government must convince the Court to accept the case for review because of the substantial constitutional questions involved.
This type of appeal is distinct from a petition for a writ of certiorari, the most common method by which the Court is asked to review a lower court decision. Because the CDA itself provides for a right of direct appeal to the Supreme Court, the more common "cert" petition is not applicable here -- hence the Court will not "grant" or "deny" cert.
In cases of direct appeal, the Supreme Court has three options: it may summarily affirm, it may summarily reverse, or it may note probable jurisdiction and schedule the case for oral argument.
Summary affirmance means that the Court has concluded that, based on the constitutional questions reached in the lower court decision, no further review is necessary.
Summary reversal means that the Court has reviewed the respective briefs and agrees with a motion that the lower court decision should be reversed. (Note: the government has not filed a motion for summary reversal in this case.)
Noting probable jurisdiction means that the Court will schedule the case for full briefing and oral argument.
The government had 30 days after issuance of the preliminary injunction on June 11th to file a Notice of Appeal with the District Court. The government then had 60 days to file a Jurisdictional Statement with the Supreme Court. At the end of that period, government lawyers asked for, and were granted, an extension of 30 days (to September 29) to file the Jurisdictional Statement.
The ACLU and ALA legal teams today filed their responses to the government's Jurisdictional Statement.
The ACLU has filed for a motion for summary affirmance, which is a way of asking the Supreme Court to uphold the preliminary injunction without the need for any further proceedings. More specifically, the ACLU will assert that the factual findings in the lower court decision are so extensive, and its legal conclusions are so indisputable under clearly established constitutional principles, that further argument is unnecessary.
According to the ACLU's brief, "summary affirmance is particularly appropriate at this stage of the proceedings because the three-judge court's conclusions were driven by extensive, detailed, and largely undisputed factual findings regarding the technology, sociology and economics of cyberspace."
The ACLU brief acknowledges that summary affirmance is unusual when a lower court has enjoined enforcement of a federal statute. Nevertheless, the brief argues, it is fully warranted in this case because the government's failure to challenge the lower court's factual findings and method of constitutional analysis leaves the Supreme Court without any substantial constitutional issues to resolve.
Summary affirmance should not be viewed as analogous to denial of certiorari: a cert denial says nothing, either positive or negative, about the case. In contrast, summary affirmance indicates that the Court has reviewed the facts and has decided to approve the lower court decision. The distinction is important because of the message it sends regarding the constitutional questions in the case.
The ALA brief similarly argues that the lower court's ruling is clearly correct and could be summarily affirmed. However, recognizing that summary affirmance is rare in these circumstances, the ALA plaintiffs have taken the position that they will not oppose full review by the Supreme Court.
All briefs at this preliminary stage are limited to 30 pages.
After the ACLU and ALA briefs are submitted on October 31, the Court will consider these documents, along with the government's Jurisdictional Statement and the substantial factual record in the case. A decision about whether to review or affirm could be issued as early as mid-November, although December is more likely. Depending on the Court's action, the case may then proceed as follows:
I. Summary Affirmance
If the Court grants summary affirmance of the lower court decision, Supreme Court review is effectively ended and no further argument or briefing will take place. A grant of summary affirmance would not only leave the lower court's preliminary injunction in place, it would legally uphold it. The case would then be sent back to the trial court for further proceedings concerning a permanent injunction.
In this eventuality, the ACLU would ask the same three-judge panel in Philadelphia to issue a permanent injunction against the censorship law on the basis of the Supreme Court's affirmance of the preliminary injunction. The District Court may then hold further hearings before granting a final injunction. Depending on whether the District Court grants or denies the permanent injunction, either the plaintiffs or the government could appeal the court's decision. If so, the case would return to the Supreme Court.
II. Supreme Court Review
If the Court accepts Reno v. ACLU for full review, the Justices will set a briefing schedule, naming due dates for each of the briefs required by plaintiffs and defendants and appointing a day for oral argument. All of these dates will be scheduled upon acceptance of the case for full review.
As appellants in Reno v. ACLU, government lawyers will be required to submit the first brief. The ACLU and ALA teams will then submit their second, or answering, briefs. A third and final brief, the reply brief, is due from the government in response. Oral argument will then take place on the appointed day.
Under the normal briefing schedule, the government's first brief would due 45 days after probable jurisdiction was noted and the case accepted for full review. Plaintiffs' briefs would then be due 30 days after the government's brief was filed. It is likely that oral argument would take place some time in late winter or early spring.
The 20 ACLU v. Reno plaintiffs represent a wide variety of online users, content providers, and Internet service providers, including Human Rights Watch, Planned Parenthood, EFF and EPIC (national cyberspace rights groups), Critical Path AIDS Project, Wildcat Press (a gay and lesbian publisher) and the ACLU itself (see attached for a complete list).
ALA v. DOJ plaintiffs comprise nearly 30 organizations, including the American Library Association, Internet companies, public interest groups, commercial and non-commercial content providers, and more than 50,000 individual Internet users.
Because the government has appealed Reno v. ACLU, they are now referred to as the appellant and the plaintiffs are now called the appellees.
The ACLU and ALA challenges collectively name as defendants Attorney General Janet Reno and the United States Department of Justice, as the respective individual and agency responsible for investigating and prosecuting violations of the law.
A third challenge to the CDA was filed in federal district court in New York in April of this year. That case, Shea v. Reno, was brought on behalf of Joseph Shea, editor of an on-line newspaper, The American Reporter. Shea's lawyers argued that the law would subject his newspaper to constraints that print publications do not face and that this posed a threat to the freedom of the press.
Following the same procedures as in the Philadelphia case, a three-judge panel was appointed to hear argument, consisting of Chief Judge Jose A. Cabranes of the U.S. Court of Appeals for the Second Circuit, and Judge Leonard B. Sand and Judge Denise L. Cote of Federal District Court in Manhattan.
On July 29 of this year, the New York judges joined their Philadelphia colleagues in unanimously ruling Internet censorship unconstitutional.
On October 14, lawyers for the government filed a Jurisdictional Statement asking the Supreme Court to reserve judgment on the Shea case until Reno v. ACLU is resolved, either through review or summary affirmance. The Shea plaintiffs now have until mid-November to file a reply brief. It is not known at this time what legal strategy the Shea lawyers will pursue.
Lawyers for the ACLU are Christopher Hansen, Ann Beeson and Marjorie Heins of the national office; Steven R. Shapiro, the ACLU's national Legal Director; and Stefan Presser, Legal Director of the ACLU of Pennsylvania.