In a precursor to the way we will all practice law in just a few years, the Philadelphia law firm of Schnader Harrison Segal & Lewis has submitted the first "Cyberbrief" to the U.S. Supreme Court. The brief was submitted, fittingly enough, in the celebrated case of Reno v. American Civil Liberties Union which addresses the constitutionality of Communications Decency Act (CDA). The CDA, passed in February 1996, makes it a crime, punishable by up to two years in jail and/or a $250,000 fine, for anyone to engage in speech that is "indecent" or "patently offensive" on computer networks if the speech can be viewed by a minor. A three-judge US District Court in Philadelphia declared that law "unconstitutionally vague," and enjoined its implementation until the Supreme Court could rule on its legality.
The cyberbrief was submitted on CD-ROM in HTML with links both to included documents and external sites on the World Wide Web. It richly illustrates the variety of images, sounds and ideas available on the Internet today. According to Carl A. Solano, a First Amendment attorney and one of the authors of the brief, the interactive brief "allows Supreme Court Justices and their clerks to move from citations in the brief to documents and vivid illustrations in the appendix, with hyperlinks directly to sites on the World Wide Web." Schnader Harrison Segal & Lewis prepared the brief on a pro bono basis which means they were not compensated for their legal services. The brief was submitted on behalf of the American Association of University Professors and twenty four other organizations as amici curea, or "friends of the court," in support of the position of the American Civil Liberties Union that the CDA constitutes an unconstitutional infringement on freedom of speech.
Even a cursory review of the brief illustrates the persuasive power of modern technology to reshape the age old task of persuading a court to accept one's client's viewpoint. The brief itself is an impressive demonstration of the Internet's capacity to assemble a wide variety of text, images, sounds and information. As such, ala Marshall McLuhan, it punctuates the amici curea's argument that any governmental effort to regulate the content of the Internet runs too great a risk of stifling the free exchange of information and ideas that is the backbone of freedom in our society.
The brief is an awesome display of the legal advocacy of tomorrow. It fails. however, to fully utilize the HTML format by not hyperlinking case citations to the text of prior decisions or the statutes being discussed. For less dramatic cases, that capacity is likely to prove the more practical application of this format to legal advocacy. The brief does effectively use hyperlinks to cascade several concepts through increasing levels of detail.
For what its worth, IMHO, the Supreme Court will agree with the lower court panel that the CDA is unconstitutional because it is overly broad. It will do this because that is consistent with ample First Amendment precedent which requires strict scrutiny for any law that infringes on free speech. I also suspect that a majority of the Justices may be sufficiently technologically educated to realize that no law can control the content of the Internet, and it is folly to try.