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At the time the district court ruled on this case, I was following it very closely. I downloaded and read the whole ruling the day it was issued. (OK, so I was following it very, very closely.) But it was a really good read. I remember being absolutely stunned at just how wonderfully accurate the district court's "Finding of Fact" was. As Hal said today in class, the district court just "got it". It reads as a perfect primer for the layman (technically, speaking) as to the state of the Internet in 1996, touching all the relevant issues.
[Loosely speaking, court decisions are divided between findings of fact and and findings of law (with bunches of procedure and references thrown it.) I think that only the court of original jurisdiction can make findings of fact. (Issues such as, did the defendant fire the gun? What was the defendant's state of mind when firing the gun? etc.) Basically, all appeals are trying to overturn some finding of law or procedure. (Sometimes the finding of law sets the standard for finding of fact and, thus, overturns the finding of fact.)]
I am of the opinion that this legal battle was won on the arguments for the findings of fact more than the findings of law. That is, once the findings of fact had been laid out so nicely, the District Court --- and even the USSJC --- really _couldn't_ uphold the CDA. Please tell me if I'm nuts here, but that's how good I thought the findings of fact were.
I was wondering if Hal and/or Danny could explain more about this process and what it was like. How did the negotiations and hearings go? I seem to remember something about demos being arranged for the judges. Did that happen? (And, btw, How much of the ACLU/ALA arguments on fact, did the judges really accept? Did the DoJ loose _all_ the arguments? I'm just curious.)
If I understand the explanation of the procedure described in the decision, both sides did a _lot_ of work to bring the court up to speed on the issues.
From the procedure:
". . . with the agreement of the parties, the court began receiving evidence at the consolidated hearings which were conducted on March 21 and 22, and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties worked closely with Judge Dalzell and arranged to stipulate to many of the underlying facts . . . so that the hearings were largely devoted to cross-examination of certain of the witnesses . . ."
From the intro to findings of fact:
". . . all parties insisted on having extensive evidentiary hearings before the three-judge court. . . . The history and basic technology of this medium are not in dispute, and the first forty-eight paragraphs of the following Findings of fact are derived from the like-numbered paragraphs of a stipulation the parties filed with the court."
In all there were 123 paragraphs to the findings of fact. The first 48 cover the "The Nature of Cyberspace." After that, the court started actually deciding controversial issues. I've attached the table of contents for the Findings of Fact just to show how wide ranging they are. They start from essentially nothing and get to anonymity in just 123 paragraphs. Pretty efficient.
- II.FINDINGS OF FACT
- The Nature of Cyberspace
- The Creation of the Internet and the Development of Cyberspace
- How Individuals Access the Internet
- Methods to Communicate Over the Internet
- The World Wide Web
- Restricting Access to Unwanted On-Line Material
- Cyber Patrol
- [Software - continued]
- Content on the Internet
- Sexually Explicit Material On the Internet
- Obstacles to Age Verification on the Internet
- The Practicalities of the Proffered Defenses
- Credit Card Verification
- Adult Verification by Password
- The Government's "Tagging" Proposal
- The Problems of Offshore Content and Caching
- Plaintiffs' Choices Under the CDA
-- Joshua Tauber, October 5, 1999