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Random Musings
Vol. 1, No. 7: Online Pornography and the Protection of Minors, Part III: Fighting it out in the Courts

Legal Primer Two: Other Legal Principals and Procedural Issues

A brief explanation of some other legal terms and procedures may be of assistance to the reader in understanding the analysis of the courts' decisions in the COPA case and the editorial commentary in Part III of this series of articles. Again, these summaries are necessarily very basic and do not begin to cover all the considerations that must be taken into account by litigants and their attorneys or by judges hearing a case.

Declaratory Action. A lawsuit for a declaratory action is, as the name implies, a action that seeks to have the court "declare" something. This often takes the form of seeking a declaration on the terms of a contract, meaning of a statute or other document, or, as in the case of many lawsuits attacking a statute, to declare the statute unconstitutional. If a statute is declared unconstitutional or otherwise invalid, it may not be enforced in the jurisdiction of the court making the declaration. The effect of courts' rulings in other jurisdictions is briefly discussed later in the section on the federal court system.

Injunctive Relief. An injunction requires that the person, agency, organization, etc., to whom it is directed do something or refrain from doing something. Here, an injunction against enforcement of COPA bars the government from bringing either a civil or criminal action based on violation of that law. An injunction may be either permanent or temporary.

Preliminary injunctions are usually issued pending trial on an issue. These temporary injunctions remain in force until terminated by the court issuing it, but in no case do they remain in effect after the case is resolved, when they are either lifted or become permanent injunctions. Preliminary injunctions are discouraged and a party seeking one must show the existence of four criteria:

As will be seen in the discussion of the courts' decisions, the District Court found that the plaintiffs here had established all four criteria and the Supreme Court ultimately agreed.

It must be noted that although one of the criteria is a determination of the likelihood that the plaintiffs will ultimately succeed, the preliminary injunction in this case, as in any case is not a final ruling on the merits, i.e., that COPA is unconstitutional. The process for issuing a preliminary injunction is much more truncated than a full trial on the merits, and often after full hearing, the courts will in fact find against the plaintiffs. Thus, despite the fact that many websites, news media, and others who perhaps should know better have reported and continue to state that the Supreme Court ruled that COPA is unconstitutional, neither the Supreme Court nor any other court has reached that conclusion.

Standing. Generally speaking, a person or organization must have "standing" to bring a lawsuit. That means that the person must claim that they have been harmed and the harm was caused by the action about which they complain. A person does not have standing to file a suit claiming harm to another person. Organizations are permitted to bring standing on behalf of their members in certain situations. The harm that is required must be a real and present harm. The possibility of harm in the future will often preclude a determination that a person has standing.

The standing rule is generally relaxed in issues involving the First Amendment and some other fundamental rights. If the standing principle were strictly adhered to, it would require a person filing a lawsuit to assert he or she engaged in the prohibited speech. However, it is enough for a person, or an organization on behalf of its members, to assert the challenges law has a "chilling effect." A chilling effect occurs when an unconstitutional law causes a person to engage in self-censorship out of fear of prosecution that the law will be applied over broadly to protected speech. This would amount to a prior restraint on speech. Protecting against prior restraint has always been considered the main function of the First Amendment. For these reasons, establishing standing is much easier in First Amendment cases than in any other type of case.

Affirmative Defense. In a criminal case, a defendant is presumed innocent and the prosecution has the burden of proving guilt beyond a reasonable doubt. Juries are almost always instructed that a defendant does not have to present any evidence or testimony and can, in fact, sit silently throughout the trial, doing nothing. Most crimes have several elements, each of which must be proven beyond a reasonable doubt. COPA, for example, would require the prosecution to prove a defendant

In most cases, if a jury is satisfied that the prosecution has proven each of the elements, it is obligated to find the defendant guilty. An affirmative defense is one that in essence agrees the prosecution has proven the elements of the crime, but would require the jury to nonetheless find the defendant not guilty. Some common affirmative defenses include insanity, intoxication in some instances, official authority, and self defense.

In a departure from the general rules of criminal procedure, the burden is on the defendant to present evidence of an affirmative defense. Normally a defendant does not have to prove the defense beyond a reasonable doubt, but merely by a preponderance of the evidence, that is, that the existence of the defense is more probable than not. The theory behind shifting this burden to the defendant is that to do otherwise would require the prosecution to prove a negative, a difficult if not impossible task.

A few words about the federal court system. The federal court system is made up of three levels. The United States district courts are the trial courts of the federal court system and with limited exceptions, all cases begin in the district courts. The district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. The territories of the Virgin Islands, Guam, and the Northern Mariana Islands also have district courts that hear federal cases.

A party can appeal the decision of a district court to a court of appeals. The 94 judicial districts are organized into 12 circuits, each of which has a court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases. Appeals are generally considered by a three-judge panel. A party may seek review of a panel by all judges in the circuit, known as an "en banc" hearing. A decision by an appeals court is binding in all district courts within the circuit, but is not binding in other circuits or the district court in other circuits.

Following a decision by a court of appeals, a party may file a petition for certiorari in the United States Supreme Court. The Supreme Court grants such petitions in very few cases, receiving nearly 10,000 petitions each year, but granting the petition in only 70-80 cases, usually in instances in which the courts of appeals are in disagreement on a rule of law (known as a "circuit split") or other important issues. The granting of a petition for certiorari is only the beginning step in Supreme Court process. When the petition is granted, a schedule for filing briefs and an oral argument is set. The Court may not issue an opinion until several months after argument has been heard.

The names of cases can sometimes be a confusing matter. Generally, a case is named according to the plaintiff and defendant, i.e., [Plaintiff] v. [Defendant]. The name of the case remains the same in the courts of appeals, with the designations "appellant" and "appellee" added to the previous designations of plaintiff and defendant. Supreme Court cases, however, are named according to the party filing the petition and the parties are designated as "Petitioner" and "Respondent."

Other case-naming protocols can also lead to some confusion. When an agency of the United States or other government is sued, it is customary to name the head of that agency as the defendant. In the COPA case, the Department of Justice is responsible for enforcement of the laws, so the case was originally named ACLU et al. v. Janet Reno, in her official capacity as Attorney General of the Untied States. Between the time of the first decision in the Court of Appeals and the opinion in the Supreme Court, George Bush became President, with John Ashcroft as Attorney General and the Supreme Court name became Ashcroft v. ACLU, et al. When the case returned to the Court of Appeals, it was ACLU et al. v. Ashcroft. Now that it is back in the District Court and Roberto Gonzales has replaced Ashcroft as Attorney General, the case is known as ACLU et al. v. Gonzales. Thus, the same case may have several different names as it winds it way through the federal courts and the heads of governmental agencies change.

We now turn our attention to the several court decisions that have been issued in the fight over enforcement of COPA.