N.Y. judges asked to follow CDA ruling

Attorneys leading the second challenge of the Communications Decency Act in New York federal court are asking the judges in that case to reject the law based on the landmark ruling against the statute in Philadelphia earlier this month.

Lawyers representing Joe Shea, editor of the American Reporter in Shea vs. Janet Reno, requested that the court follow the earlier decision in a letter filed late Friday, citing a legal term known as collateral estoppel. Under this premise, the attorneys argue that the core issues of the Shea case have already been decided.

"What this means is that they [the judges] can either adopt those findings of fact or they can come to the same or similar conclusions based on the evidence introduced in our case," said James Stronski, lead attorney for the plaintiffs. "I think they will read the Philadelphia decision, and it will play a factor in their deliberations."

The two cases are closely linked. While the New York decision could hinge on the Philadelphia ruling, Justice Department attorneys in ACLU vs. Janet Reno are monitoring the outcome of the Shea case in deciding whether to appeal to the Supreme Court. The Manhattan case is fighting the CDA on grounds that it limits freedom of expression for the American press.

Stronski filed his letter to Judges Jose Cabranes, Leonard Sand, and Denise Cote while both sides submitted their final briefs in the Manhattan case. "Our case is fully submitted for decision as of today," the attorney said.

In his letter, Stronski wrote, "In the instant case, plaintiff asserts that under the doctrine of collateral estoppel, the Philadelphia Court's factual findings are binding on this Court because (1) the Government is a party to both actions, (2) the Government tried both cases with the same witnesses and stipulated to the introduction of substantial portions of the record in the Philadelphia case into evidence here, (3) the Government had a full and fair opportunity to litigate the factual issues in Philadelphia, and (4) the Philadelphia Court's findings--especially on the availability of the credit card and good faith "safe harbor" defenses--were necessary to its decision in that case."

Because decision in the American Reporter case could come after the July 2 deadline for any appeal to be filed in Philadelphia, sources have speculated that the Justice Department has already requested an extension. Government officials deny the speculation and say that a request has not been filed.

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