Appeals as of right
I recently wrote that Congress had stacked the deck against free speech by creating an expedited review process for decisions holding parts of the Communications Decency Act unconstitutional, but not for decisions that go in the government's favor.
Jim Tyre learned that this isn't so bad, because there was already an equivalent expedited review procedure that either side is entitled to use. 28 USC 1253:
Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.
Since challenges to the CDA are required by the CDA to be heard and determined by a district court of three judges, it looks as if there is an appeal as of right for private parties who lose CDA constitutional challenges. This was discovered by Nitke lawyer John Wirenius, who is now using it to take the Nitke case to the Supreme Court.
Some people have heard that the Supreme Court gets to decide whether to hear appeals or not. Technically, the law has created a distinction between an "appeal" (which the Supreme Court is required to hear, but which is not procedurally available in most situations) and a "petition for a writ of certiorari" (which the Supreme Court is not required to grant, but which is procedurally available in situations in which a person has lost a case in a Federal appellate court, and some situations in which a person has lost a case in a state Supreme Court.) See Supreme Court Rules 10 and 18.
