Bearing Witness to Internet History
At a few minutes after 10 a.m. on June 26, 1997 - ten years ago today - I was in the "Lawyers Lounge" of the U.S. Supreme Court listening to the live audio of the Court's announcement of the days' decisions. We did not know for sure whether the Court would issue its decision in the Reno v. ACLU case against the Communications Decency Act (CDA), but it was very late in the term and so a decision was likely.
I had chosen not to go into the courtroom itself because I knew that I needed to run out as soon as the decision was announced. At the time I was a partner in the Jenner & Block law firm. The Center for Democracy & Technology, along with the American Library Association and America Online, had in January 1996 formed the "Citizens Internet Empowerment Coalition" to challenge the just-passed CDA, and had hired my firm to handle the case.
The ACLU had already filed a legal challenge to the CDA, but the "CIEC" coalition wanted to file a second lawsuit, one that was focused on the serious threat to the Internet itself that the CDA posed. Jerry Berman and the folks at CDT had put together an impressive group of plaintiffs -- led by the librarians and AOL, and joined by other national trade associations and a range of tech companies like Microsoft, CompuServe, Apple Computers, and others. My law firm partners -- Bruce Ennis and Ann Kappler -- and I worked side-by-side with the ACLU's legal team during the very intense discovery and evidentiary hearing in Philadelphia during February to May of 1996. Bruce, who was one of the best Supreme Court advocates ever (and who sadly passed away a few years ago), argued the case to the Justices on behalf of both the CIEC and ACLU plaintiffs.
Before the Supreme Court's decision came down that day ten years ago, I had made special arrangements with the Court's Clerk and Press Office to get an electronic copy of the Court's decision as soon as the Court announced it. At the time, the Supreme Court did not have a web site, and Supreme Court decisions were not posted to the Net when they were issued.
Back in the Lawyers Lounge that morning, I heard Justice Stevens begin to summarize the Court's decision striking down the CDA -- issuing what I now believe to be the most important First Amendment case for the 21st Century. I immediately ran downstairs to the Press Office, was handed a floppy disk with the decision, and ran outside to meet up with Jonah Seiger of CDT, who was waiting on the steps of the Court with two laptops.
On one laptop, I loaded the WordPerfect file and quickly converted it to a plain text file, while Jonah used the other laptop to connect to the Internet using the old Ricochet wireless network. I handed Jonah a floppy with the converted file, and he posted the decision to the CIEC coalition web site. We got the decision up on the Internet within about ten minutes of the Court's announcement of the decision -- the first time ever that a Supreme Court decision had been made available to the world right after it was announced.
Now, thankfully, the Court posts its decisions itself, without any running around or trading of floppies between two laptops.
Much has been written about the CDA decision and its importance to the fostering of the amazing diversity of content available on the Internet today. But on a wholly personal level for me, the CDA case was a very significant event. It is safe to say that it is, and will be, the most important case of my legal career -- a case that perfectly combined my prior First Amendment experience with my involvement with computers (and later the Internet) that dates back to 1971. It also is how I first got to know Jerry, Jonah, Danny Weitzner, and the other staffers at CDT. I was impressed by them, and by the approach that CDT takes to policy issues, and so I was very happy in 2001 to come over to join CDT's staff.
Unfortunately, the threats to online free speech today are even more diverse than what we faced ten years ago, and so it is likely that we will be fully employed for years to come.