HotWired, The Netizen
21 August 1996

DOJ Dodge

by Declan McCullagh (declan@well.com)
Washington, DC, 20 August
  
   The US Department of Justice is stalling for time.

   The Supreme Court yesterday granted the government an extra month to
   submit the next phase of its Communications Decency Act appeal,
   allowing the DOJ a few more weeks to coordinate the original ACLU
   lawsuit with a lesser-known suit filed by Joe Shea, editor of the
   American Reporter.
   
   Shea refused to join the ACLU coalition lawsuit, and instead sued the
   DOJ himself, in a case that challenged part of the CDA and met with a
   partial victory on 29 July. Shea's complaint charged that the
   "indecency" portions of the Telecommunications Act of 1996 are
   unconstitutionally vague, and place an unfair burden on electronic
   publications compared to traditional print newspapers. The DOJ
   appealed Shea's lawsuit on 15 August.

   But in truth, the DOJ shouldn't need any more time to file this
   paperwork. The "jurisdictional statement" the department's been
   working on for seven weeks - and now has until 29 September to submit
   - must argue only that there's a substantial constitutional issue at
   stake in the CDA lawsuit, something transcendently obvious to anyone
   who hasn't been napping through the 14 months since Time magazine's
   cyberporn cover hit the newsstands.
   
   "It also suggests that they think they are in slightly better shape in
   the Shea case than the ACLU case. That's not surprising, since they
   got a slightly better legal result [in Shea], and the ACLU case comes
   up on a much stronger factual record," said Eric Freedman, a
   constitutional law professor at Hofstra University Law School. "The
   government wants to get Shea before the court because they did better
   there.... They could propose that the court hear only the Shea case.
   After all, they're the appellant. But nothing would stop us from
   opposing that."
   
   While this is likely just normal legal skirmishing in a battle where
   the DOJ attorneys have few useful weapons and already have suffered
   one crushing defeat, the government's five-page application for an
   extension of time hints at why a delay would be to their advantage.
   
   The DOJ's application reads: "Judge Sloviter, joined by Judge
   Buckwalter, concluded that the prohibitions are not narrowly tailored
   ... because at the present time, it is either technologically
   impossible or economically prohibitive for many of the plaintiffs to
   comply with the prohibitions except by refraining from communicating
   material that adults have a constitutional right to receive." (The CDA
   offers as a "defense to prosecution" any "good faith, reasonable,
   effective, and appropriate actions ... to restrict minors from such
   communications, including any method which is feasible under current
   technology.")
   
   In other words, the CDA might be unconstitutional now, but
   constitutional some months from now - depending on how labelling and
   blocking technologies such as PICS and SurfWatch evolve. Keeping kids
   out might have been a royal pain when the judges heard the case in
   March 1996, but by March 1997 it might amount to no more than the
   minor irritation of a constitutional hangnail.
   
   David Sobel, a lawyer for the Electronic Privacy Information Center
   and co-counsel on this case, said: "They could make the argument in
   the Supreme Court that the court in Philadelphia hasn't really
   completed its work on the case, and all that is entered is a
   preliminary injunction. They could argue that this case should go back
   to Philadelphia for further proceedings, since they're now prepared to
   answer the court's questions about what kind of technology may be
   coming down the pike."
   
   Whatever the reason for the DOJ's delay - summer bureaucratic
   slothfulness or malicious conniving - one thing is certain: we have
   the rest of the year to enjoy the government's lawyer tricks.
   
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