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A court battle over Congress’ attempts to protect children from pornography on the Internet will soon be ripe for trial. After nearly eight years of litigation challenging the constitutionality of the Child Online Protection Act – including two trips to the U.S. Supreme Court – the plaintiffs have won a handful of significant rulings on key discovery disputes. In his 23-page opinion in ACLU v. Gonzales, Senior U.S. District Judge Lowell A. Reed Jr. ruled that government lawyers must provide the plaintiffs with answers to dozens of interrogatories that focus on how the government intends to enforce the law and the specifics of how it will decide whether content on the Internet is “harmful to minors.” Passed in 1998, COPA has never gone into effect because Reed granted the plaintiffs a preliminary injunction which was later upheld by the Supreme Court. The preliminary phase of the case was protracted because the Supreme Court took the case up twice. In the first high court appeal, the justices reversed a decision by the 3rd U.S. Circuit Court of Appeals which held that COPA was flawed because it calls for Internet content to be judged on “community standards” and would therefore “subject Internet providers in even the most tolerant communities to the decency standards of the most puritanical.” That single flaw identified by the 3rd Circuit was not enough to doom the law, the justices said. Justice Clarence Thomas found that “COPA’s reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for purposes of the First Amendment.” In March 2003, the 3rd Circuit again upheld Reed’s preliminary injunction, finding that COPA suffers from multiple, incurable flaws. Writing for the court, Senior Circuit Judge Leonard I. Garth found that COPA fails the strict scrutiny test because the definitions of key terms and provisions in the statute were not narrowly tailored. “While COPA penalizes publishers for making available improper material for minors, at the same time it impermissibly burdens a wide range of speech and exhibits otherwise protected for adults,” Garth wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Robert E. Cowen. Garth found that the term “minor,” as Congress drafted it in COPA, “applies in a literal sense to an infant, a 5-year old, or a person just shy of age 17.” As a result, Garth said, Internet publishers who want to know if their sites will run afoul of COPA “cannot tell which of these ‘minors’ should be considered in deciding the particular content of their Internet postings.” When the Supreme Court took up the case a second time, the justices affirmed the 3rd Circuit in a 5-4 decision handed down on the last day of the court’s term in June 2004. Writing for the majority, Justice Anthony M. Kennedy held that “content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat, the Constitution demands that content-based restrictions on speech be presumed invalid and that the government bear the burden of showing their constitutionality.” Since then, the lawyers have been gearing up for a trial. In January, the plaintiffs’ team hit the Justice Department with a deposition request under Rule 30(b)(6) of the Federal Rules of Civil Procedure demanding testimony from a government official who could answer questions about how the Justice Department defines the terms “obscene” and “harmful to minors.” In the request, the plaintiffs’ team said it also wanted to ask questions about the criteria used to distinguish material that is deemed “obscene” from that deemed “harmful to minors,” as well as the criteria used in parsing material that is considered “harmful to minors” from that which is deemed “noncriminal.” But Reed quashed the subpoena, finding it was not the least intrusive means of gathering the information. Instead, Reed ordered the plaintiffs’ lawyers to draft a series of “contention interrogatories.” Now, over the government’s objection, Reed has ordered Justice Department lawyers to provide answers to the vast majority of the plaintiffs’ interrogatories. “It is clear that the contention interrogatories seek to narrow the issues at trial and provide fair notice to plaintiffs of what issues will be relevant at trial,” Reed wrote. “Unlike in many cases, this case is very, very mature and the time is ripe for the parties to solidify their contentions,” Reed wrote. The ruling is a victory for plaintiffs’ attorneys Christopher R. Harris, Seth L. Friedman, Katharine E. Marshall, Jeroen van Kwawegen and Elan R. Dobbs of Latham & Watkins in New York. In an interview yesterday, Harris said the case is currently scheduled for trial in October and that the Latham & Watkins lawyers will be jointly representing the plaintiffs with ACLU attorneys Christopher A. Hansen and Benjamin Elihu Wizner. Justice Department lawyers argued that the interrogatories were vague and overbroad, and that many went beyond the issues first raised in the Rule 30(b)(6) deposition subpoena. Reed disagreed, saying the deposition notice and his own order were “very broadly and were not intended to be limiting.” “My own interpretation of my order,” Reed wrote, “is that the plaintiffs were allowed to propound contention or other interrogatories which sought to uncover defendant’s current or past rationales, practices, policies or internal rules. . . . Therefore, it was perfectly acceptable for the plaintiffs to ask defendant (and defendant to answer) interrogatories seeking contentions defendant will assert at trial and as well, defendant’s current rationales, practices, policies or internal rules, to the extent that they exist, to a given scenario.” In one series of questions, the plaintiffs asked government lawyers to review the printouts of certain Internet Web pages and state whether they would be considered harmful to minors. Homing in on a key dispute in the case, the plaintiffs also demanded to know whether any of the material would be deemed “to appeal to, or designed to pander to, the prurient interests of” either 16- or 17-year-olds. For each page, they also asked whether the material, “when taken as a whole, lacks serious literary, artistic, political or scientific value.” Reed ordered that all of the questions be answered, saying the plaintiffs are entitled to know that “rationales, practices, policies or internal rules for determining whether communications are subject to COPA.” Rejecting the Justice Department’s complaint that the interrogatories were overbroad, Reed found instead that they “seek information on only a limited number of provided sample Web pages and do not require defendant to search through vast amounts of information.” Reed also ordered the government to answer interrogatories seeking 10 examples of Internet content that the Justice Department deems to be “harmful to minors but not prosecutable as obscenity in any jurisdiction in the United States.” Likewise, Reed ordered the government to provide 10 examples of content on the Internet the government deems to be prosecutable as obscenity, as well as information on whether the cases are being prosecuted and, if not, why not. “Answering these two contention interrogatories will greatly assist this court and the parties in the management of the issues likely to be raised in the trial and pre-trial motions by narrowing and defining said issues ,” Reed wrote. But in a separate section of the opinion, Reed also left the door open for the government to refuse to answer questions if doing so would violate a privilege. In those instances, Reed said, the government must supply its grounds for asserting the privilege when it supplies its answers to the remaining questions. (Copies of the 23-page opinion in ACLU v. Gonzales , PICS No. 06-0957, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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