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CDA loses again in New York

New York judges backed the second major challenger to the decency law.

A panel of three federal judges in Manhattan today ruled in favor of the second major challenger to the federal Communications Decency Act and rejected the law as unconstitutional.

The judges ruled the CDA to be overly broad and therefore unconstitutional in the case filed by Joe Shea, editor of the American Reporter online newspaper. Shea filed his case in April on grounds that section 223(d) of the CDA limits freedom of expression for the American press, which would be proscribed from publishing material on the Internet that would otherwise be protected under the First Amendment if it appeared in a printed publication.

Section 223(d) makes it a crime to display "patently offensive" sexually explicit material to minors.

"The government has conceded that the 223(d), standing alone, is unconstitutional as a total ban on protected indecent communication between adults," the judges wrote as part of a 75-page opinion issued in Manhattan federal court. The judges also agreed that section 223(d) is "unconstitutionally overbroad in that it bans protected indecent communication between adults."

On June 12, another three-judge federal panel in Philadelphia also ruled that the CDA is unconstitutional in the first and higher-profile case challenging the law, filed by the American Civil Liberties Union and American Library Association against the Justice Department. The judges in the Shea case were obligated to uphold the factual findings submitted by the Philadelphia judges but were free to reach a different legal interpretation based on those facts.

"This is a victory considering that the decision came from a second panel of judges who agree that the CDA is unconstitutional," said Wayne Matelski, the lead attorney for the plaintiffs in the American Reporter case. The case was heard by U.S. Circuit Judge Jose A. Cabranes and District Judges Leonard B. Sand and Denise Cote.

The Justice Department on July 1 filed a motion to appeal the Philadelphia decision to the Supreme Court, which is expected to be heard by the end of fall or early winter. The American Reporter case is also expected to be challenged by the Justice Department and will most likely be combined with the ACLU and the ALA case when it reaches the Supreme Court, Matelski said.

The Justice Department has 20 days to file a notice of appeal. "If they don't appeal this case it will stand even if the ACLU case is upheld, so I would assume that they will appeal," Matelski said.

The case began February 8 when Shea filed action stating that the CDA "is void for vagueness, in that it fails to give ordinary citizens sufficient notice of what conduct will subject them to prosecution or criminal liability; and substantially overbroad, in that it targets a broader category of speech than necessary to achieve the government's goal and constitutes a ban on certain constitutionally protected speech between adults."

Shea said this case has set a new standard for online journalism. "I think that online press freedoms have been validated by the federal court in New York and if it reaches the Supreme Court, I think that the court will see the wisdom allowing the migration those freedoms we've enjoyed in print to the new world of online journalism."

Related stories:
N.Y. judges asked to follow CDA ruling
Government officially files CDA appeal
Final arguments in second CDA trial
CDA rejected in landmark ruling
Two more challenges to CDA filed