In a 23-page opinion in ACLU vs. Gonzales, Senior U.S. District Court judge Lowell Reed Jr. ruled that government lawyers must provide the plaintiffs with answers to interrogatories requesting information on how the government plans to enforce the law and specifically how it will determine whether content on the Internet is “harmful to minors.”
The ruling springs from a January request from the plaintiffs that the government make an official available for deposition who could answer questions regarding how the Department of Justice defines the terms “obscene” and “harmful to minors.”
Rather than granting the plaintiff’s request for a deposition of a DOJ official, Reed instructed attorneys for the plaintiffs to draft “contention interrogatories” — written questions directed at an opposing party.
"It is clear that the contention interrogatories seek to narrow the issues at trial and provide fair notice to plaintiffs of what issues will be relevant at trial," Reed said. "Unlike in many cases, this case is very, very mature and the time is ripe for the parties to solidify their contentions.”
COPA was passed in 1998. The law has yet to go into effect because of a preliminary injunction granted by Reed. Since that time, issues in the case have twice been heard on appeal, reaching the U.S. Supreme Court both times.
In addition to mandating that the government respond to plaintiff’s interrogatories, Reed ordered the government to provide 10 examples of Internet content that the DOJ deems to be “harmful to minors but not prosecutable as obscenity in any jurisdiction in the U.S."
Reed also ordered the government to provide 10 examples of content on the Internet the government deems to be prosecutable as obscenity. Reed further instructed the government to tell the court whether those cases were being prosecuted or explain why cases were not being brought.
“Answering these two contention interrogatories will greatly assist this court and the parties in the management of the issues likely to be raised in the trial and pre-trial motions by narrowing and defining said issues," Reed said.
While the decision looks to be a setback for the government’s case, Reed did say in his opinion that compliance with his orders was subject to the attorney-client privilege. The burden of asserting the privilege, Reed said, would fall on the government.
According to plaintiff’s attorney Christopher Harris, the case is set for trial in October.
