In anticipation of their final fight expected before the Supreme Court, a new round of bickering between supporters and foes of the Communications Decency Act has erupted since the federal law was rejected as unconstitutional in a New York court Monday.
Six federal court judges have now voted against the CDA, a consensus that effectively closes the book on the law unless the nine judges of the Supreme Court outvote them all. A panel of three federal judges in Manhattan found in the American Reporter vs. Reno case that the CDA is unconstitutional because it bans adults from using constitutionally protected speech, a decision similar in both fact and tone to the ruling delivered in June on the more widely publicized American Civil Liberties Union case against the department in Phildelphia.
The American Reporter case was filed by editor Joe Shea to protest what he says is the CDA's repression of free-speech rights that would be protected for printed publications. The case had been largely forgotten, however, in the publicity surrounding the ACLU challenge, which was supported by the American Library Association, more than 40 civil liberties groups, software companies, regional Internet service providers, and commercial producers of online entertainment and information.
But if the New York judges had reached the opposite conclusion from their Philadelphia peers, the case headed for the Supreme Court's docket would have been far more complicated. Now, attorneys for both Shea and the ACLU anticipate that the Shea and the ACLU cases will be consolidated in a single, and much stronger, challenge.
"We assume that the government will appeal the Shea case," said Ann Beeson, legal counsel to the ACLU. "We're delighted that three more judges have found that the CDA is unconstitutional, and with six judges now having reached that conclusion we're now more confident that the nine judges on the Supreme Court will also reach that conclusion."
The Justice Department has already appealed the Philadelphia decision and is expected to do the same in Manhattan, but the Supreme Court still has the right to decline to hear the challenges--in which case the Philadelphia and Manhattan cases would effectively set the legal precedent. But all sides expect the Supreme Court to take up the case.
In the meantime, the Manhattan decision seems to have only inspired CDA supporters to get out their message more aggressively.
"The judges were more impressed with the Internet than they were with the Constitution," said Patrick Trueman, president of the American Family Association. "I think that when the CDA gets to the Supreme Court they are going to be more concerned about following precedent than they are going to be impressed with the Internet and consequently I think you're going to see that the CDA is upheld."
The Justice Department has 19 days to respond to the American Reporter decision. Justice Department officials said the 75-page opinion has not yet been read and would not comment further.
Trueman didn't hesitate, however, to scoff at the Manhattan decision, which he says was determined by the venue of the case. "This is clearly a case of forum shopping. Shea didn't go to Alabama or Minnesota, he went to Manhattan and found three judges that ruled the CDA as unconstitutional. When in fact, Manhattan is a cesspool of pornography," he said.
Needless to say, this opinion is not universally held and the vocal resolve of the CDA supporters is being met in some quarters with equally strong retorts.
"The problem is that these types of organizations are legislating a doctrine that holds the First Amendment as the least common denominator," said attorney Robert Corn-Revere, who specializes in First Amendment cases. "The most backwater place in the most backward state in the country would determine what free speech is and that's why two federal courts said no way."
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