From: declan@well.com (Declan McCullagh)
Date: Wed, 3 Jul 1996 14:16:09 +0800
To: cypherpunks@toad.com
Subject: F-C Dispatch #16: DoJ files appeal, Supreme Court ho!
Message-ID: <v01510108adff93e472e0@[204.62.128.229]>
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                       Fight-Censorship Dispatch #16
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             Justice Department files appeal, Supreme Court ho!
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         By Declan McCullagh / declan@well.com / Redistribute freely
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In this dispatch: Justice Department's appeal means long, tortuous process
                  A mysterious "Order on Motion for Clarification"
                  Text of Justice Department's Notice of Appeal


July 2, 1996

WASHINGTON, DC -- The Department of Justice yesterday appealed the
Philadelphia court's decision striking down the Communications Decency
Act, a move that sets the stage for a long, tortuous climb to the
Supreme Court.

The government's "Notice of Appeal" is a terse, two-page statement
saying they "hereby appeal" the "Adjudication and Order entered June
12," the day the special three-judge panel unanimously declared the CDA
to be unconstitutional and blocked the Justice Department from
enforcing it.

Next move is the DoJ's. They have until September 1 to file a
"jurisdictional statement" arguing that the Supreme Court should hear
their appeal.

The Supreme Court doesn't automatically have to accept jurisdiction,
notes Ann Beeson, an attorney with the ACLU. "The Supreme Court can
still decline to exercise jurisdiction over the case," she says,
adding: "They do not have the same kind of discretion they have in
a cert petition."

All the DoJ has to do is convince the Supremes that there's "still a
substantial federal question," says Beeson. "If they're not convinced
there is a question, they can decline the appeal."

But by all accounts, there's precious little chance of that happening.

After Justice files the jurisdictional statement, our attorneys have 30
days to file a response -- and then when the next term begins on October
7, the Supremes will meet to discuss the case. (If the procedure is
anything like granting cert, the votes will be cast in a secret
conference attended only by the justices and the actual vote won't be
disclosed.)

The climb to the nation's highest court will be only partly over by
then, since the court's decision to consider our case marks the start of
the briefing schedule. The government will have 45 more days to file
their arguments saying why the Philadelphia decision was wrong; we have
30 more days to rebut.

If the Department of Justice -- hardly the speediest bureaucracy in DC
-- uses all of their alloted time, the paperwork won't be complete
until Christmas.

And then the Supremes need plenty of time to digest it.

So everyone's best guess is that the Supreme Court will hear the
combined ACLU and ALA coalition lawsuits early next year -- just in
time for the rescheduled Electronic Freedom March on the nation's
Capitol.

As I wrote in a recent HotWired column:

  "The ACLU predicts the Supreme Court will issue a decision near the
   close of the next term, which ends in July 1997 -- just in time for
   Congress to try again."


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            THE MYSTERIOUS "ORDER ON MOTION FOR CLARIFICATION"
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

You might be surprised by a mysterious sentence in the text of the
Justice Department's notice of appeal talking about a "Order on Motion
for Clarification" the court issued on June 28.

Not to worry. The judges ruled so vigorously in our favor that the DoJ
wanted to be sure the government could prosecute anyone they think
may violate other parts of the CDA.

"Because of the wording of the court's actual order, they unwittingly
called into question whether the DoJ could enforce the provisions of
the CDA that we didn't challenge," says Ann Beeson from the ACLU.

The Philadelphia court quickly issued the clarification.


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             TEXT OF JUSTICE DEPARTMENT'S "NOTICE OF APPEAL"
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                IN THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_____________________________________________________________

AMERICAN CIVIL LIBERTIES UNION,    :    CIVIL ACTION
    et al., Plaintiffs;            :    No. 96-963
                                   :
               v.                  :
                                   :
JANET RENO, in her official        :
capacity as Attorney General of    :
the United States, Defendant.      :

_____________________________________________________________

AMERICAN LIBRARY ASSOCIATION,      :    CIVIL ACTION
  INC., et al., Plaintiffs;        :    No. 96-1458
                                   :
               v.                  :
                                   :
UNITED STATES DEP'T OF JUSTICE,    :
   et al., Defendants.             :

_____________________________________________________________


                    DEFENDANTS' NOTICE OF APPEAL

Notice is hereby given that defendant Janet Reno, in her official
capacity as Attorney General of the United States, hereby appeals,
pursuant to section 561(b) of the Telecommunications Act of 1996, Pub.
L. No. 104-104, Sec.561(b), 110 Stat. 143, to the Supreme Court of the
United States from the Adjudication and Order entered June 12, 1996, as
clarified by the Order on Motion for Clarification entered on June 28,
1996, in American Civil Liberties Union et al. v. Reno, Civ. A. No.
96-0963 (E.D. Pa.).

Notice is also hereby given that defendants United States Department of
Justice and Janet Reno, in her official capacity as Attorney General of
the United States, hereby appeal, pursuant to section 561(b) of the
Telecommunications Act of 1996, Pub. L. No. 104-104, Sec.561(b), 110
Stat. 143, to the Supreme Court of the United States from the
Adjudication and Order entered June 12, 1996, as clarified by the Order
on Motion for Clarification entered on June 28, 1996, in American
Library Ass'n, et al. v. Department of Justice, et al., Civ. A. No.
96-1458 (E.D. Pa.).


Respectfully Submitted,

MICHAEL R. STILES
United States Attorney

MARK R. KMETZ
Assistant United States Attorney

FRANK W. HUNGER
Assistant Attorney General
Civil Division

DENNIS G. LINDER
Director, Federal Programs Branch

[signed]
ANTHONY J. COPPOLINO
Trial Attorney

[signed]
JASON R. BARON
PATRICIA M. RUSSOTTO
Trial Attorneys
United States Department of Justice
Civil Division
Federal Programs Branch
901 E. Street N.W.
Washington, Dc 20530
Tel: (202) 514-4782

Date: July 1, 1996


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MEA CULPA. In F-C Dispatch #13, I wrote that the Washington Post ran an
article "on the first page of the Outlook section bashing
"self-indulgent dross" and "crap" on the Net. I neglected to mention
that John Schwartz and Kara Swisher had an excellent rebuttal inside.

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Mentioned in this CDA update:

  HotWired column on what kind of net-censorship Congress will try next:
    http://www.hotwired.com/netizen/96/24/declan4a.html
  Fight-Censorship Dispatch #13:
    http://fight-censorship.dementia.org/dl?num=2741

  Fight-Censorship list   <http://fight-censorship.dementia.org/top/>
  Int'l Net-Censorship    <http://www.cs.cmu.edu/~declan/international/>
  Justice on Campus       <http://joc.mit.edu/>

This document and previous Fight-Censorship Dispatches are archived at:
  <http://fight-censorship.dementia.org/top/>

To subscribe to future Fight-Censorship Dispatches and related
announcements, send "subscribe fight-censorship-announce" in the body
of a message addressed to:
  majordomo@vorlon.mit.edu

Other relevant web sites:
  <http://www.aclu.org/>
  <http://www.cdt.org/>
  <http://www.vtw.org/>
  <http://www.cpsr.org/>
  <http://www.epic.org/>
  <http://www.ala.org/>
  <http://www.eff.org/>
  <http://joc.mit.edu/>

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