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Date: Tue, 10 Dec 1996 23:20:26 GMTServer: NCSA/1.4.2Content-type: text/htmlLast-modified: Fri, 12 Jul 1996 00:29:11 GMTContent-length: 6436<html><head> <title>The Three-Judge Court Opinion in <em>ACLU v Reno</em></title></head><H2>Short description of the status of the CDA litigation</h2>The following is my quick summary of the highlights and import of therecent (June 12) <!WA0><a href=http://www.eff.org/Alerts/HTML/960612_aclu_v_reno_decision.html>decision</a>in the litigation on the constitutionality of the CommunicationsDecency Act of 1995 (the "Act"), <em>ACLU v. Reno</em>.<ul><li><strong>The result.</strong> The three-judge District Court panel issued a preliminary injunction preventing enforcement ofthe criminal provisions of the Decency Act. The (un)constitutionality ofthe Act has not been definitively established, since the panel has notheld a trial nor has the decision been reviewed by the Supreme Court.Nonetheless, the unanimous opinion by the three-judge court is thefirst major judicial review of the Act, and their reasoning and conclusions are an important predictor of the ultimate resolution ofthe litigation.<li> <strong>Expedited review; preliminary injunctions.</strong> In anaction for preliminary injunction on constitutional grounds, such as<em>ACLU v. Reno</em>, the federal statute dealing with district courtcivil procedure provides for an expedited review by a three-judgecourt, one of whom (Buckwalter) is the judge that heard thepreliminary testimony and evidence. A hearing on a request for a preliminary injunction is not equivalent to a full trial on the merits. Instead, the judges areasked to determine merely whether there is a "reasonable probabilityof success" at the eventual trial. (There are additionalrequirements, including "irreparable harm", that a plaintiff must showto get a preliminary injunction; but in a First Amendment contextthose additional requirements are not controversial.) Even so, atleast one judge (Dalzell) thought the statute unconstitutional on itsface, period. And another (Buckwalter) pointed out that they hadgathered a significant amount of testimony and other evidence, so that-- unlike the original TRO hearing -- this decision is indeed solidlygrounded in fact.<li><strong>The Comstock Act (anti-abortion) provisions.</strong> Thepanel did not need to reach the question of the constitutionality ofthe "Comstock Act" provisions dealing with information about abortion,since the Government apparently conceded its unconstitutionalitywithout further argument:<ul>The Government has stated that it does not contestplaintiffs' challenge to the enforceability of the provision ofthe CDA as it relates to 18 U.S.C. 1462(c).[7]</ul><li><strong>The factual assumptions.</strong> An important part of the impact ofthe case is the set of factual assumptions on which the reasoning wasbased. The Government and the plaintiffs agreed on a 48-paragraphstipulation that the panel incorporated in its findings; additionalfindings reflected extensive testimony for example about commercialWeb screening products.The <b>most important</b> finding was the following (# 88):<ul>Communications over the Internet do not "invade"an individual's home or appear on one's computer screen unbidden.Users seldom encounter content "by accident." </ul>This finding allowed the judges to distinguish the Internet from the"invasive" radio broadcast in <em>Pacifica</em>. Another important "fact" on which the opinion rested (at least inpart) was the incompleteness of the Government's proposed "tagging"scheme. The Government argued that the defense of "appropriateactions under the circumstances" might include a system for warningsabout possible indecent content. However, the Government was notwilling to endorse any particular scheme as guaranteeing statutoryprotection; and the panel was not willing to rest theconstitutionality of the statute on this vague ground.<li> <strong>Discussion about <em>Pacifica</em></strong>. The panelbelieved that the specific Carlin monologue would also be treated as"indecent" under the CDA. Therefore, in order to find the CDAunconstitutional, the panel would have to distinguish<em>Pacifica</em>. The panel pointed to several possible grounds fordistinguishing the <em>Pacifica</em> case. The Decency Act imposes<strong>criminal</strong> penalties; this greater infringement onFirst Amendment freedoms would normally require a stronger showing of compelling governmental interest as well as leaving the statute opento an attack based on "vagueness" (related, in First Amendmentparlance, to the concept of "over-breadth"). The <strong>media</strong>argument, that while radio is basically intrusive the Internet isnot, rests primarily on the "fact" discussed above about accidentalexposure to indecent material. The panel also believed that the<strong>scarce resource</strong> quality of radio bandwidth maderegulation in the public interest more constitutionally permissiblethan regulation of the more diffuse, decentralized Internet. Thedifficulty of defining <strong>"community standards"</strong>, theinternational transparency, and the technical obstacles faced bychildren in gaining access to the Internet all added to the panel'swillingness to distinguish <em>Pacifica.</em>Finally, the panel believed that the impact of the <em>Pacifica</em>case had been limited by the recent cable television case of<em>Turner Broadcasting System</em>. As one judge (Dalzell) put it, "Time has not been kind to the <em>Pacifica</em> decision."<li> <strong>The Justice Department's position.</strong> TheAdministration argued against the Decency Act during the Congressionallegislative process, but now the same Justice Department is in theposture of arguing to uphold it. It seems to me that this isperfectly appropriate; one wouldn't want an Administration as a rule to undercut Congressional legislation by selectively choosing whetheror not to enforce laws based on its political views.Interestingly, though, the panel pointed to a 1995 Justice Departmentletter (arguing that the Decency Act was unnecessary to combat childpornography) as undercutting any claim of a "compelling governmentalinterest". So the Administration has in some sense shot itself inthe foot (which is good for us opponents of the Act).<p><hr><!WA1><a href="http://www.cs.washington.edu/homes/eric/index.html">Back home</a>.</body><address>eric@cs.washington.edu <DD> 10 Jul 1996</address></html>⌨️ 快捷键说明
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