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July 24, 2008 5:45 PM

PRO BONO 2008: Latham's Free Speech Advocate

Posted by Zach Lowe

On Tuesday, a federal appeals court in Philadelphia struck down the Child Online Protection Act, which punishes those who post commercial material online that could be deemed harmful to minors. The ruling marks the sixth time since the law's 1998 passage that courts have rejected it. Congress passed the law after an even broader earlier version was ruled unconstitutional by the Supreme Court in its 1997 Reno V. American Civil Liberties Union decision.  Christopher Harris, a Latham & Wakins partner who specializes in securities litigation, has been fighting the law alongside the ACLU since 1998--and he may not be done. Government lawyers may appeal the latest decision to the Supreme Court.

How did you first get involved in these types of cases?
I was a first-year associate when the ACLU asked a partner at our firm, Michael Hertz, to help in a case against a similar Internet content law [former New York Governor] George Pataki had passed. Michael asked me to help him out. I'm still not sure why.

The ACLU is listed as lead counsel on this case. What did Latham's role involve?
I've been the joint lead trial counsel at one stage last year, and we wrote half the brief for the appellate case decided this week.

What other free speech cases have you worked on?
The work I do with the ACLU is pro bono. I've worked with them on cases involving state laws similar to the Pataki case and the federal law we're talking about now. Several states have tried in various ways to restrict content on the Internet. The intersection between the First Amendment and the Internet is very interesting, especially the question of how you can apply doctrines from the physical world to the Internet. It just doesn't translate well.

How so?
We've relied on both the First Amendment and the Commerce Clause [which states that Congress shall regulate all interstate commerce]. It's very hard to argue that what's on the Internet doesn't constitute interstate commerce. All of these laws have been struck down either on the Commerce Clause or the First Amendment.

Has the free speech work netted any fees for the firm?
Sure, I've done some paying cases. I represented a group of cigar makers that successfully challenged [in a Supreme Court case called Lorillard Tobacco Co. v. Reilly] restrictions in labeling and advertising Massachusetts imposed on tobacco companies. We got some portions of the regulations related to cigar advertising struck down. I've also represented a social networking Web site in a case in which states wanted to impose a requirement that the site obtain parental consent before any minor can sign up. We negotiated a settlement with the attorneys general before it ever went to trial.

Do you enjoy this work? How much of your time do you spend on it?
At this point, I probably spend about 10 percent of my time on these cases. It's been one of my most rewarding experiences as a lawyer, and the ACLU attorneys are some of the smartest people I've ever worked with. It can certainly be a nice break from securities litigation.

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