ACLU Supreme Court Preview: 1996 Term

From Federalism to the Future
Steven R. Shapiro, ACLU Legal Director
Back to Basics: How A Five-Member Majority Distorts Modern Constitutional Principles
Frank Askin, ACLU General Counsel
Developments in Criminal Justice
Vivian Berger, ACLU General Counsel
Remedies for Racial Discrimination
James E. Ferguson, II, ACLU General Counsel
The Future of Free Speech
Chris Hansen, ACLU Senior Staff Counsel

From Federalism to the Future
Statement of Steven R. Shapiro, ACLU Legal Director

The upcoming Supreme Court Term is likely to feature an intriguing mix of the old and the new.

The Court’s docket is already loaded with cases raising fundamental questions of federal-state relations that date back to the founding of the Republic. However, before the year is over the Court is also likely to address the constitutional meaning of the information superhighway and its futuristic implications for human communication.

The ACLU, once again, is in the midst of these battles.

In particular, the ACLU represents a group of plaintiffs that successfully challenged the constitutionality of the Communications Decency Act. The CDA, which was enacted by Congress last year, purports to regulate “indecency” on the Internet. In fact, it threatens to stifle the Internet in its infancy by reducing adults to reading and seeing only what is fit for children (ironically determined, under the law, by everyone but the children’s parents).

The Court, of course, may still decline jurisdiction in Reno v. ACLU. But assuming it accepts the case for review, the Court will be confronted with the delicate task of devising constitutional rules for a technology that is still evolving and largely unknown. Justice Breyer’s role in crafting the plurality opinion last year in DAETC v. FCC suggests that he will once again play a pivotal role. What remains to be seen is whether the Court will be willing to follow his pragmatic approach for a second time and figure out a way to resolve the case without setting forth a definitive constitutional standard.

The Court faces a different, but no less daunting First Amendment problem in Turner Broadcasting Co. v. FCC, which will be the first argument when the Court reconvenes on October 7th.

The applicable standard was established by the Court in a prior ruling two years ago. Now, the Court must decide whether the evidence establishes that the so-called “must-carry” rules are necessary to preserve the economic viability of local broad-cast stations or, instead, an undue intrusion into the editorial prerogatives of cable operators. Lurking behind these fact-specific questions, however, is the enormously important issue of what role government can and should play as access to the mass media is increasingly controlled by fewer and fewer gatekeepers.

The Court has also plunged itself into the contentious debate over the “right to die” by agreeing to review two cases striking down state bans on physician-assisted suicide. The cases arise out of Washington State, Washington v. Glucksberg, and New York, Vacco v. Quill.

The federalism issues on this year’s docket are more technical; still, their outcome could have far-reaching consequences. The Court’s 1994 decision in United States v. Lopez marked the first time in 50 years that a federal statute had been struck down under the Commerce Clause. Last year, in Seminole Tribe of Florida v. Florida, the Court ruled that Congress could not rely on its Commerce Clause powers to override the Eleventh Amendment immunity of states. This year, the high profile question is whether the Brady Act unconstitutionally infringes upon the Tenth Amendment by requiring state and local officials to assist in checking the background of prospective handgun purchasers. That question will be resolved by the Court’s decision in Printz v. U.S. andMack v. U.S.

Two other federalism cases on the Court’s docket also have potential significance for the civil rights community. The narrow issue in Blessing v. Freestone is whether individual parents can sue the states that fail to pursue child support payments under Title IV-D of the Social Security Act. At least some amici, however, have used the case to raise the far larger issue of whether 42 U.S.C. §1983 — the principal vehicle for litigating civil rights claims in federal court — can ever be used to challenge the violation of a federal statute by state officials.

Similarly, in Idaho v. Coeur D’Alene Tribe, the narrow question is whether the Eleventh Amendment bars an injunction against state officials in a property dispute between the tribe and the state. Here, too, the lurking concern is that the case may become a vehicle for a broader reconsideration of the Ex Parte Young doctrine, which has traditionally permitted injunctive suits against state officials who act unconstitutionally even when the Eleventh Amendment bars suits against the state itself.

In addition to its role as both client and lawyer in Reno v. ACLU, the ACLU is serving as direct counsel in four other cases that have already been accepted for review.

One of those cases, Abrams v. Johnson, challenges the validity of a judicial redistricting plan which reduces the number of minority congressional districts in Georgia from three to one. In addition, the ACLU is co-counsel in Young v. Fordice, which raises the question of whether a dual registration scheme adopted by Mississippi after enactment of the Federal “motor voter” law was subject to preclearance by the Justice Department under Section 5 of the Voting Rights Act. There are two other voting rights cases on the Court’s docket as well, Reno v. Bossier Parish School Board, and Lopez v. Monterey County.

The Court’s recent decisions have already done significant damage to the Voting Rights Act. What is yet to be resolved is whether that trend will continue or whether the full Court is now willing to build on Justice O’Connor’s observation last year that the Voting Rights Act remains a constitutional exercise of congressional power that has important value as a means of ensuring equal participation in the political process.

The ACLU is also direct counsel in M.L.B. v. S.L.J., which raises the question of whether a mother can be barred from appealing the termination of her parental rights because she cannot afford a payment of more than $2,000 demanded by the state as the cost of preparing a trial transcript. The ACLU is direct counsel in Young v. Harper, as well, a due process case on behalf of a prisoner whose participation in a supervised release program was abruptly terminated by prison officials without any hearing or allegations of misconduct.

Finally, the ACLU has submitted amicus briefs in a dozen other cases already on the docket for the 1996 Term. In Arizonans for Official English v. Arizona, the ACLU has argued that an English-only provisions in the Arizona Constitution violates the basic principles of representative government embodied in the First Amendment. In Schenck v. Pro-Choice Network, the ACLU has supported (with minor reservations) the terms of an injunction designed to preserve access to abortion clinics in western New York given a record of past obstruction. In Clinton v. Jones, the ACLU has opposed the President’s request for complete immunity from all civil litigation during his term in office. In United States v. Lanier, the ACLU has supported use of the federal civil rights laws to criminally prosecute a state court judge for sexual assault. And, in Kansas v. Hendricks, the ACLU has taken the position that the state should not use its mental hospitals as a form of preventive detention for sexually violent criminals who have completed their prison sentence.

Back to Basics: How A Five-Member Majority Distorts Modern Constitutional Principles
Statement of Frank Askin, ACLU General Counsel

This annual briefing is a time for both looking forward and looking back. While my colleagues will concern themselves this morning mainly with an examination of specific matters on the Court’s 1996 docket, I want to address what I see as a dangerous shift in the constitutional jurisprudence that the Court has followed for more than half a century.

This shift most directly affects cases dealing with race and affirmative action, but also has implications for other issues involving fairness, equity and equal protection of the laws.

For a significant part of this century, the advent of a new Supreme Court term has been a time of hope for racial and ethnic minorities and other segments of the population with limited clout in the political arena, but who were able to turn to the federal courts for protection of their rights. Unfortunately, that is no longer the case. The sea change is exemplified by last term’s 5 to 4 decision in, Shaw v. Hunt, the North Carolina congressional districting case.

Speaking for a 5-member majority, Chief Justice Rehnquist wrote that the Constitution requires “strict scrutiny” of all racial classifications. He then applied that principle to invalidate districts drawn for the purpose of facilitating the election of African-Americans to Congress. In so doing, the Chief Justice engaged in a judicial sleight of hand that contorts into unrecognizableness the doctrine he claimed to invoke.

The modern doctrine of “strict scrutiny” of legislative enactments alleged to violate constitutional norms is traceable to Chief Justice Stone’s 1938 opinion in United States v. Carolene Products.

The case involved a federal statute forbidding the interstate shipment of “filled milk.” It was the beginning of the period when the Roosevelt Court was abandoning its former economic due process doctrines. The opinion by Stone, upholding the constitutionality of the legislation, has often been cited as ushering in a new era in constitutional law. In it, he articulated the modern principle that strict scrutiny of legislation was appropriate only when laws infringed on certain kinds of individual rights unlikely to be protected by the political process.

In the famous footnote number 4 (called “the most celebrated footnote in constitutional law” by former Justice Lewis Powell), Stone began to construct a theory to distinguish types of legislative enactments that required strict judicial review from those that were entitled to deference by unelected judges.

In setting aside the lower court’s ruling that the filled-milk statute was unconstitutional, the Chief Justice explained that such economic legislation need only be rationally related to some public health objective. Furthermore, he wrote, courts should assume, until it was demonstrated otherwise, that such legislative judgments were rationally based upon facts within the knowledge and experience of the legislators. If the electorate was dissatisfied with the political judgments of their elected officials, it could respond at the polls.

On the other hand, Stone wrote, certain types of legislation were not entitled to this presumption of constitutionality. Chief among these were laws that came within a specific prohibition of the Bill of Rights, since those rights could not be subjected to revision or dilution by a political majority.

Furthermore, Stone’s footnote continued, “more searching judicial inquiry” might be appropriate in regard to statutes that were “directed at” specific religious, national or racial minorities. It was here that Stone appended the often-quoted phrase that legislation prejudicial to “discrete and insular minorities may be a special condition that tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities.” Therefore, such enactments “may call for a more searching judicial inquiry.”

It is most ironic that this Stone dictum has now been twisted to undermine the rights of the “discrete and insular minorities” that the “strict scrutiny” doctrine was designed to protect. That irony was deftly exposed by the dissenting opinion of Justice Stevens in the North Carolina case. Chiding Rehnquist’s opinion for applying “strict scrutiny” at the behest of white voters to a district crafted to provide opportunity for African-Americans to elect a Representative, Justice Stevens succinctly observed:

“A majority’s attempt to enable the minority to participate more effectively in the process of democratic government should not be viewed with the same hostility that is appropriate for oppressive and exclusionary abuses of political power.”

Justice Stevens was merely reminding his colleagues of the reasons for Chief Justice Stone’s

1938 footnote. It had nothing whatsoever to do with invalidating legislation that might benefit racial minorities. It had everything to do with making sure that the political process worked for everyone. Chief Justice Rehnquist and his four concurring colleagues have turned constitutional law (and constitutional history) on its head.

Even more startling is the fact that less than two weeks after the North Carolina decision, Justice Scalia, one of the five members of the Shaw majority, invoked the Carolene Products principle in dissenting from the decision requiring the Virginia Military Academy to admit women. Scalia objected to the holding in the VMI case that Virginia had to demonstrate an “exceedingly persuasive justification” — something less than strict scrutiny — for its gender discrimination. Apparently oblivious to the inconsistency of his positions, Scalia remonstrated the majority that women who wanted to attend VMI were clearly not a “discrete and insular minority,” a status he had been quite willing to assign to white voters just two weeks earlier.

While recognizing that the votes may no longer be there, the ACLU will continue to point out to the Court — as well as to the public at large — the fundamental constitutional principles so thoughtfully articulated by Chief Justice Stone nearly 60 years ago. Our democratic system, if it is to work for all, must not only guarantee the political rights of the majority but must also protect the rights of disempowered minorities to equal protection of the laws and to first-class citizenship.

We consider those principles so immutable that we do not believe they can be destroyed by a transitory majority. We shall continue to remind the Court of Chief Justice Stone’s wisdom until it has been restored to its proper place in the constitutional firmament. The Court will have the opportunity to do that in several cases this term — most notably in the Georgia redistricting case,Abrams v. Johnson.

Developments in Criminal Justice
Statement of Vivian Berger, ACLU General Counsel

Among the big news on the legislative front in recent months was the signing into law of the so-called Anti-Terrorism and Effective Death Penalty Act of 1996, which contained a major overhaul of the habeas corpus statutes. Relatedly, among the big news from the Court in the 1995 Term was the surprising decision to grant immediate review to a case arising under the Act, Felker v. Turpin.

Over the objection of four justices, who voiced dismay at their colleagues’ “unseemly haste,” the Court agreed to decide the validity of a bar on appeal and certiorari from a Court of Appeals determination whether to permit the filing of a second or successive petition. (In their novel “gatekeeper” role, the circuit courts must deny such authorization unless the applicant makes a prima facie showing that he fulfills the rigorous requirements of the new provision governing successors.)

Notwithstanding its advance billing as a major ruling on the Act’s constitutionality, Felker easily and unanimously rejected a claim that the prohibition on appellate review improperly restricted the Court’s jurisdiction and impermissibly suspended the writ. The justices’ conclusion flowed directly from the finding that the statute did not curtail their power to issue original writs — a position advanced by ACLU.

The opinion was more interesting, and troubling, for what Chief Justice Rehnquist said about how the Court would employ this power. Noting the Act’s stringent substantive limitations on successive petitions (among other things, in most instances the facts underlying the claim must suffice to establish clearly and convincingly that, but for constitutional error, no reasonable judge or jury would have convicted on the underlying crime), the Chief Justice stated obliquely: “Whether or not we are bound by these restrictions, they certainly inform our consideration of original habeas petitions.” Swiftly denying Felker’s petition, he made plain that the Court will not serve as an end run for prisoners around the Act’s draconian strictures on multiple filings.

The Court’s other habeas decisions arose under the former law. They highlight well the changes wrought by the new statute.

Thompson v. Keohane held that the issue of whether a suspect is “in custody” for purposes of questioning under Miranda presents a mixed question of law and fact, subject to independent review by habeas courts. As discussed below, the Act arguably creates a more deferential standard for review of such claims.

Lonchar v. Thomas held that the Court of Appeals erred in dismissing an eleventh-hour petition — the defendant’s first — on ad hoc “equitable” grounds based on his tardiness in filing. A one-year limitations provision contained in the Act will essentially moot the matter of delay, although the sympathetic tone of the five-member majority opinion by Justice Breyer may lend some comfort to habeas advocates.

Finally, Gray v. Netherland (which was, like Felker and Lonchar, a capital case) relied on the recent jurisprudence of retroactivity, launched by the Court in 1989 in Teague v. Lane, to dismiss the petitioner’s contention that the state denied him the opportunity to defend himself by reneging on a promise to introduce only limited proof of his previous offenses at the penalty trial. Disingenuously casting the claim as one of a broad constitutional entitlement to notification of the state’s evidence, Chief Justice Rehnquist wrote for five members of the Court that it would require a new rule to establish that right — and such a rule could not be announced in the context of habeas. The 1996 statute arguably displaces Teague and its numerous progeny as a source of retroactivity law.

While the docket for the upcoming Term does not yet include any habeas matters, the Act fairly bristles with questions of interpretation as well as constitutionality. A number of these already occupy the lower courts. Thus, we can predict with confidence that cases arising under the Act will shortly move to the Court’s front burner. Pressing issues include the following:

(1) To what extent, if at all, do the general provisions of chapter 153 of the Act apply to petitions filed before April 24, 1996, the date of enactment? A special chapter 154, governing only capital cases in states that create a mechanism for appointing and compensating counsel in state post-conviction proceedings, expressly covers pending matters; the rest of the Act is silent on the subject of retrospectivity.

(2) What effect do the Act’s statutes of limitations (ordinarily a year; six months in chapter 154) have on defendants whose time had nearly or fully expired prior to April 24?

(3) Does any limitations period violate the Suspension Clause?

(4) Has the Act replaced the longstanding, fundamental rule (probably constitutionally required), calling for independent review by federal courts of both legal and “mixed” questions, with a deferential standard of review? The pertinent text, muddy at best, denies relief except as to claims whose adjudication in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court ….” This same language appears to embody a non-retroactivity rule similar to Teague’s, which raises the question whether Teague doctrine has any remaining applicability.

The Court, without any help from Congress, seriously retrenched on prisoners’ rights in a different setting in Lewis v. Casey. This ACLU litigation involved a class action brought on behalf of inmates claiming that inadequate legal research facilities deprived them of access to the courts, in violation of Bounds v. Smith (1977). The Ninth Circuit upheld an injunction mandating detailed, systemic changes in prison law libraries and in legal assistance programs.

All of the justices agreed that the relief ordered was overbroad since the trial court’s findings did not support it. But instead of simply reversing the judgment on this ground, Justice Scalia and four of his colleagues insisted on announcing broad restrictions on the Bounds right. Most egregiously, they disclaimed suggestions in Bounds that the state must enable prisoners “to discover grievances” and “litigate effectively once in court.” In light of another significant piece of legislation — the 1996 Prison Reform Litigation Act — signed two days after the habeas bill, the Court’s docket of prison cases will likely expand in the near future.

One more matter deserves brief mention. The Court has already taken two Fourth Amendment cases, Maryland v. Wilson and Ohio v. Robinette. Wilson presents the issue whether an officer’s automatic right to require the driver to exit his vehicle during a stop extends to a passenger. In Robinette (in which ACLU has filed a brief supporting the defendant), the state contests the lower courts’ holding that a citizen detained for traffic offenses must be told when she is free to go — or else, any “consent” to search or “consensual” interrogation will be viewed as the fruit of an illegal seizure. Given the Court’s dismal record in this area, the chance of defense victories is slim.

Remedies for Racial Discrimination
Statement of James E. Ferguson, II, ACLU General Counsel

Last year, before the 1995 Term of the Supreme Court began, many of us in the civil rights community felt that despite its alarming rhetoric and rulings during the previous year, there was still hope that remedies for racial discrimination could be preserved.

We were optimistic and we were wrong.

During the 1995 Term, the Court delivered two more eulogies for majority-minority districting as a remedy for redressing racial discrimination under the Voting Rights Act. Both Shaw v. Hunt and Bush v. Vera provided the Court an opportunity to provide guidance to lower courts, legislatures and litigants as to when majority-minority districts are permissible and what standards are to be followed in determining their validity under the Constitution and the Voting Rights Act.

But instead of providing much-needed guidance, the Court added further confusion to voting rights and racial jurisprudence by simply declaring without reasoned analysis that race was the “predominant” factor in the drawing of the districts.

Either a cursory look or a close analysis easily reveals that race was one of many factors that explained the dimensions and the dynamics of the doomed districts in North Carolina and Texas. Traditional legislative and political concerns such as protection of incumbents and creation of communities of interest indisputably played a significant role in determining the ultimate configuration of the districts in question.

Nonetheless, the Majority struck down the districts, claiming that race was the “predominant” factor, without providing any clear rules or practical guidelines that legislators or courts can follow in future cases in determining whether race was a “predominant” factor or simply a significant factor along with other significant factors.

More disturbing than the majority’s failure to provide guidance, however, is the majority’s willingness to discard, ignore and radically revise established principles of decision making to reach a predetermined result.

In the line of districting cases beginning with the first Shaw case, the majority has abandoned the established principle of standing that a plaintiff must show that he or she suffered actual injury. None of the plaintiffs in these cases have shown actual injury as a result of the redistricting process. They have simply claimed that race was a motivating factor in the drawing of their own districts. The majority has radically relaxed the standing requirements by allowing the plaintiffs — white voters — to bring their claim upon a showing that they were placed in a district with a racial makeup not to their liking.

As Justice Stevens said in his dissent in Shaw II, ” … the majority’s explanation of why these plaintiffs have standing to bring this challenge is unconvincing … they do not claim that they have been shut out of the electoral process on account of race, or that their voting power has been diluted as a consequence of race-based districting.

“The injury that these plaintiffs have suffered, to the extent that there has been injury at all, stems from the integrative rather than the segregative effects of the State’s redistricting plan,” Stevens pointedly concluded.

Just as the majority was willing to dispense with standing requirements, it also utilized a loose standard for the application of strict scrutiny to the racial remedies involved in these cases. It is beyond dispute that the objective of the redistricting plans involved in these cases was to increase the political participation of minorities who had previously been excluded from the political process or had their strength diluted as a result of racial discrimination.

No one contended in any of these cases that the Government’s intent or objective was to segregate or disadvantage any racial group. Nor was it contended that the Government’s action actually harmed any racial group. Even so, the Court applied strict scrutiny in its analysis in these cases. By so doing, the majority made it impossible for any of the plans to survive.

In its zeal to declare ours a color-blind society, the Court equated the objectives in this case with the most insidious discrimination of the past where race was used to segregate and excluded African-Americans and other minorities from access and benefits accorded to the majority.

A rigid application of strict scrutiny in cases like these — where the Government’s objective is to correct past invidious discrimination — will lead to results where the doctrine has the effect of denying rather than protecting rights.

If the majority’s abrogation of historically established decision-making principles were only a matter of abstract jurisprudence, there would be no great cause for concern because a future reconstituted, less judicially active court could return to normalcy.

But the alarming reality is that the Court’s failure to protect the political gains achieved by African-Americans and other minorities since the passage of the Voting Rights Act signals a return to a Congress that is disproportionately white and does not reflect the makeup of America and return to state legislatures and local elected bodies that do not reflect the presence of African-Americans and other minorities.

Only a handful of African-American Congress members have been elected from majority white districts in the entire history of the Nation. As of 1994, 36 of the 39 black congressional representatives were elected from minority districts. Only three were elected from majority white districts. These stark facts provide dramatic refutation of the majority’s make-believe “color-blind” society.

The majority’s activism in finding creative ways to avoid remedies that take race into account can be contrasted with the Court’s reluctance to allow a criminal defendant to obtain the necessary information to challenge racially selective prosecutions based upon the disproportionate impact of crack cocaine prosecutions upon African-American males in United States v. Armstrong.

The Armstrong defendants filed a motion seeking discovery or dismissal on the grounds that they were selected for prosecution because they are African-American. The District Court in the Ninth Circuit agreed with the defendants and dismissed the indictment when the prosecution refused to provide discovery which might have aided the defense in establishing its claims.

The Supreme Court disagreed and, in his dissent, Justice Stevens noted the disparity between the penalties for crack cocaine and powder cocaine and the disparate impact that such sentencing guidelines had upon African-American defendants.

There is no longer reason for optimism that the majority on the Supreme Court will relent in its hostility toward racial remedies. Perhaps there is some solace to be found in the fact that the Court’s current docket does not provide much opportunity for the Court to further erode the doctrines that have historically protected African-Americans and other minorities.

There are, however, three Voting Rights cases on the docket, which are likely to result in some fine tuning of the unworkable, unmanageable approach firs enunciated in Shaw I.

Abrams v. Johnson challenges the redrawn districts in Georgia pursuant to the Miller v. Johnson case decided two terms ago. Lopez v. Monterey County involves a Section Five pre-clearance issue. Reno v. Bossier Parish School Board involves the application of Shaw principles to local redistricting plans.

The record of the majority in cases involving race demonstrates that the Court will do no good. We can only hope that the Court will not do further harm.

The Future of Free Speech
Statement of Chris Hansen, ACLU Senior Staff Counsel

The Supreme Court is likely this year to determine the principles of free speech that will be applied to the Internet.

The Internet continues to expand at a geometric rate, pushing toward a future when it could fully realize its potential as the most democratic, most powerful medium of communications ever created. Thus, the Court’s consideration and ruling promises to be extraordinarily important in setting the free speech principles that will apply in the 21st Century.

The case, ACLU v. Reno — or Reno v. ACLU, as it is now known — is a challenge to the federal Communications Decency Act (CDA). The CDA makes it a crime, punishable by up to two years in jail, for anyone to engage in speech that is “indecent” or “patently offensive” on computer networks if the speech can be seen by a minor. The Act applies to all aspects of cyberspace: E-mail (individual messages sent by computer), newsgroups such as those in Usenet (places where individuals can post comments on specific topics), chat rooms (real time conversations by computer) and the World Wide Web (a source of sites with information about various topics).

Congress, having drafted and passed the CDA, recognized that its potential repercussions were so profound that it wrote into the law an expedited path to the Supreme Court’s door.

The ACLU took up that legal gauntlet and filed its challenge to the CDA on February 8, 1996 — the day it was signed into law by President Clinton — on behalf of 20 individuals and organizations that communicate and provide information via the Internet. In addition to the ACLU itself, the case was filed on behalf of Human Rights Watch, Planned Parenthood, EFF and EPIC (national cyberspace rights groups), the Critical Path AIDS Project Web page (information about safer sex practices and AIDS treatment), Wildcat Press and Youth Arts News (gay publisher and sponsor of an electronic newsletter by gay and lesbian teens).

Several weeks later, a second suit was filed by more than 20 corporate and trade organizations, including the American Library Association and computer industry giants Microsoft, AOL, Prodigy, Apple, CompuServe. That suit, ALA v. Reno, was subsequently consolidated with Reno v. ACLU.

Collectively, the plaintiffs alleged that, because the nature of cyberspace made it either technologically or economically impossible to screen potential readers by age, all speakers in cyberspace would have to reduce their speech to the level found acceptable for the most vulnerable minor.

For this reason, the plaintiffs said, the CDA violated the First Amendment, and the rights of their member organizations by criminalizing speech that, at a minimum, was constitutionally protected for adults.

Plaintiffs also alleged that the CDA was overbroad; vague; violated the rights of minors (particular older minors) to engage in and gain access to protected speech; and would effectively prohibit anonymous speech and access to speech.

A three-judge panel was appointed to hear the motion for preliminary injunction, and six days of trial were scheduled during March and April of this year. The panel consisted of Chief Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge Ronald L. Buckwalter, who heard the initial request for a TRO when the suit was filed.

At the hearing, the Internet was literally as well as figuratively on trial, as the judges were presented with an online demonstration of the workings of the World Wide Web. Specifically, the judges were given evidence of the enormous quantity of valuable speech, both for minors and adults that would be effectively criminalized under the CDA. In addition, the judges were told that even if such censorship were constitutional, it would be technically infeasible to comply with the CDA.

On June 11, the court granted the motion for preliminary injunction, unanimously declaring the CDA unconstitutional. The opinion of the Court begins with 123 lengthy “Findings of Fact” describing the nature of cyberspace and the destructive effect of the CDA. Following are three separate opinions by each of the judges.

Judge Dalzell, speaking in glowing terms of the unique nature of the Internet, called it “the most participatory form of mass speech yet developed,” one that “deserves the highest protection from government intrusion.”

Addressing the ACLU’s argument that the “indecency” and “patently offensive” provisions of the CDA were impermissibly vague, Judge Buckwalter wrote: “I continue to believe that the word ?indecent’ is unconstitutionally vague and I find that the terms ?in context’ and ?patently offensive’ are also so vague as to violate the First and Fifth Amendments.”

Summing up her opinion, Chief Judge Sloviter wrote: “The bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go…The First Amendment remains to give protection to future generations as well.”

The extensive findings of fact in this case, as well as the case material itself, now become part of the record in Reno v. ACLU. This leaves us in an excellent position to demonstrate to the Supreme Court the unique nature of the Internet, as the Court decides whether this most democratic communications medium is to be given the same broad free speech protections given to print.

After the decision in the ACLU case, a three-judge court in New York unanimously declared the CDA unconstitutional in a similar case, Shea v. Reno. The government has appealed both decisions and filed its Jurisdictional Statement in the ACLU case. As a next step on that path, by the end of this month the ACLU plans to file a motion for summary affirmance of the lower court decision on the grounds that the factual findings are so extensive and so indisputable that further argument is unnecessary.

How are the justices likely to act?

No one, of course, knows, but in a related decision, Denver Area Educational Telecommunications Consortium v. FCC, the Court addressed the constitutionality of FCC regulations concerning “indecency” on cable TV, striking down two of the three provisions. In doing so, the Court was widely split. The plurality found that the pace of changing technology made it difficult to set definitive First Amendment rules in high tech areas. Indeed, Justice Breyer’s opinion expressly suggested that, given the rapid changes, the Court ought to be particularly cautious in the area of the Internet.

Reno v. ACLU will thus test the Court’s desire to follow its own suggestions and move cautiously with the potentially destructive effect of the CDA on the innovative nature of cyberspace, the very quality that makes it so exciting and so powerful.

The courts have thus far recognized that, in the absence of heavy-handed and ill-conceived government regulation, cyberspace is destined to become the most important means of communication into the next century. But before every American can participate, the Justices must affirm our right to free speech.