FC: Till Debt Do Us Part, cost of the CDA, from Netly

Rohit Khare (khare@w3.org)
Tue, 30 Sep 1997 17:11:31 -0400 (EDT)

Date: Tue, 30 Sep 1997 14:40:19 -0400
To: fight-censorship-announce@vorlon.mit.edu
From: Declan McCullagh <declan@well.com>
Subject: FC: Till Debt Do Us Part, cost of the CDA, from Netly
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The Netly News
September 30, 1997 (http://netlynews.com/)

Till Debt Do Us Part
by Declan McCullagh (declan@well.com)

Ever since challenging the Communications Decency
Act in early 1996, the two coalitions that filed the
lawsuit have appeared unbeatable. Not only did a
Philadelphia court rule that the law violated the
Constitution's guarantees of freedom of speech, but
the Supreme Court unanimously agreed in June.

Now one group's string of victories may be
ending. The Center for Democracy and Technology (CDT),
which organized the high tech lawsuit, may lose its
final battle: getting reimbursed nearly $600,000 for
money spent on lawyers.

Under federal law, only nonprofit groups or
corporations worth less than $7 million can request
attorney's fees after successfully challenging an
unconstitutional law. The Department of Justice claims
that since such wealthy firms as America Online,
Microsoft, Apple and CompuServe paid for much of the
lawsuit, CDT should not be reimbursed. The government
has asked for four months to investigate, charging in
court papers that "other entities actually bore the
costs of the litigation and merely funneled money
through" CDT.

In other words, if Microsoft had hired the
lawyers, Bill Gates couldn't get reimbursed. The DoJ
claims that Microsoft "funneled" the cash through CDT,
which then turned around and asked Uncle Sam for a


Even if CDT and the ACLU can show they qualify
for a check, they have one more hurdle to leap: to
show the Justice Department was wrong to defend the
CDA as constitutional.

You might think that after enduring 18 months of
humiliating defeats in two district courts and the
Supreme Court, the Clinton administration might be
willing to throw in the towel and admit the law was
brain-dead from the beginning. You'd be wrong.
Unbelievably, the government claims it was correct to
argue all the way to the Supreme Court that the CDA
did not violate the First Amendment. Says the Justice
Department, "Defendants will demonstrate that their
defense of the CDA was substantially justified and
that plaintiffs' requests for fees should be denied on
that basis alone."


Declan McCullagh
Time Inc.
The Netly News Network
Washington Correspondent