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SUPREMES: What Will They Decide? (fwd)

	Educated guesses about how each Justice will view the CDA case.

Mark Koyanagi  \(^_^)/
School of Information and Library Science
University of North Carolina -- CH
koyam@ils.unc.edu


---------- Forwarded message ----------
Date: Thu, 23 Jan 1997 16:02:21 -0700
From: --Todd Lappin-- <telstar@wired.com>
To: telstar@wired.com
Subject: SUPREMES: What Will They Decide?


THE CDA DISASTER NETWORK
January 23, 1997


Now that we've started the Battle of the Briefs in the Supreme Court case
of ACLU v. Reno, you might be wondering....

"When all is said and done, will the Supreme Court uphold the lower court's
ruling that the Communications Decency Act is unconstitutional?"

Happily, legal scholars seem confident that the Supremes will do just that.
"I'm very optimistic," Harvard University law professor Laurence Tribe told
me. "A few particular provisions might survive review, but most of the
legislation will be held unconstitutional."

But which justices will reveal themselves as defenders of free speech in
cyberspace when the court releases its decision in late summer?  Here's a
thumbnail sketch of the current Court's First Amendment jurisprudence,
compiled from conversations with expert Supreme Court watchers:

JUSTICE STEVEN BREYER
LIKELY OUTCOME: Thumbs UP/Uncertain
BACKGROUND: Breyer will approach this case from a technocratic liberal
perspective. Free speech record is mixed. Has often upheld regulatory
statism and deferred to government agencies.

JUSTICE RUTH BADER GINSBURG
LIKELY OUTCOME: Thumbs UP
BACKGROUND: Although liberal on most First Amendment issues, Ginsberg often
sided with FCC regulators while serving as a lower court judge. Still, it
is believed she understands that Internet is not like television.

JUSTICE ANTHONY KENNEDY
LIKELY OUTCOME: Thumbs UP
BACKGROUND: A highly principled conservative and a consistent free speech
advocate, Kennedy could be a pivotal swing vote. Often takes a libertarian
approach to First Amendment issues.

JUSTICE SANDRA DAY O'CONNOR
LIKELY OUTCOME: Thumbs UP
BACKGROUND: Mixed record on free speech cases. May follow Kennedy in this
case.  O'Connor opposed First Amendment protection for flag burning. Noted
for a strong emphasis on factual detail.

JUSTICE WILLIAM RHENQUIST
LIKELY OUTCOME: Thumbs DOWN/Uncertain
BACKGROUND: The conservative Chief Justice has strong statist tendencies.
Rhenquist may vote to uphold the CDA, particularly if Scalia and Thomas do
the same.  If he strikes down the CDA, it will likely be on very narrow
grounds.

JUSTICE ANTONIN SCALIA
LIKELY OUTCOME: Thumbs DOWN/Uncertain
BACKGROUND: A quixotic conservative, Scalia is hard to predict. Opinion may
hinge upon the specific language of the CDA.  May vote to strike down the
CDA if he defines the case in terms of federalism and state's rights.

JUSTICE DAVID SOUTER
LIKELY OUTCOME: Thumbs UP
BACKGROUND: A libertarian conservative, Souter has great regard for
precedent. Has been a strong supporter of the First Amendment.  Rumor has
it he is also computer literate.

JUSTICE JOHN PAUL STEVENS
LIKELY OUTCOME: Thumbs UP
BACKGROUND: Stevens is considered middle-of-the-road. Wrote the 1978
Pacifica decision that upheld indecency standards for broadcast media, but
has resited efforts to apply indecency standards in other contexts.

JUSTICE CLARENCE THOMAS
LIKELY OUTCOME: Thumbs DOWN/Uncertain
BACKGROUND: A cultural conservative, Thomas's jurisprudence is considered
rigid and formal.  As with most cases that come before the court, his
decision will probably follow Scalia's lead.


Compiled by:

--Todd Lappin-->
Section Editor
WIRED Magazine

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