Final arguments in second CDA trial

A three-judge panel in Manhattan today heard final arguments in a trial that, like the better-known ACLU vs. Janet Reno case now awaiting decision in Philadelphia, seeks to overturn the Communications Decency Act.

The Manhattan case, filed by Joe Shea, editor of the American Reporter online newspaper, attacks the CDA specifically on the grounds that it limits freedom of speech for the American press. The CDA, on the other hand, makes it illegal to post indecent material online in forums available to minors; violators face fines up to $250,000 and up to two years in jail.

The majority of the closing arguments--which lasted a total of 2-1/2 hours--involved arguments that were not raised in the ACLU case, according to Randall Boe, Shea's lead attorney. Specifically, the judges asked whether the statute could be upheld only if it applies to commercial services that provide indecent material, said Boe, who opposes such a compromise.

"My concern is that everyone engaged in some sort of commerce over the Internet would be deemed as a commercial provider. If upheld, it wouldn't be good for a newspaper online to be subject to this statute," Boe said.

The question cuts to the quick of Shea's argument. "It seems to me that it shouldn't matter whether we're selling it from the Web, via email, or from a newsstand," Shea said. "If we're selling it from a newsstand we wouldn't get in trouble, but if we're selling it on the Web we would."

The Justice Department is scheduled to submit additional briefs for the Shea case Friday, and the plaintiffs are to respond by June 13. "The case will be ripe for decision by then," Boe said.

The ACLU case, for which lawyers presented final arguments May 10, staked its claim against the CDA on broader free speech rights for everyday citizens who want to post material to the Net without risking prosecution. A decision for ACLU vs. Reno is expected this week, but the case will most likely go to the Supreme Court, along with the American Reporter challenge.

"Assuming that both cases go to the Supreme Court, and I don't see why they wouldn't, they would consolidate," Boe said.

Related stories:
It's decision time on Net free speech
Two more challenges to CDA filed
Censoring cybersmut: what happens now?
Will you be censored?