Nitke v. Ashcroft decision
Wendy has advised me that the Nitke v. Ashcroft decision is out; the court ruled for the defendant (the United States) on the narrow ground that the plaintiffs had not met their burden of proof by submitting sufficient evidence. Seth Finkelstein has a post about the decision, including a link to a comment from John Wirenius. (I worked on the Nitke case and attended day one and some of day two of the trial.)
I misremembered the scope of the expedited review provisions of the CDA. I thought that facial constitutional challenges to the CDA were to be heard by a three-judge district court and that the district court's decision was appealable as of right to the U.S. Supreme Court. In fact, challenges to the CDA are heard by a three-judge district court and the district court's decision is appealable as of right to the U.S. Supreme Court if the government loses in the district court. If the government wins, there is no appeal as of right. I don't know why I thought that Congress would actually be concerned with rapid appellate review as opposed to stacking the deck in favor of regulation of sexually explicit speech (which it was enacting).
Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding this title or an amendment made by this title, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.
(Emphasis added.)
