PC World: The Annex http://www.pcworld.com/annex/features/cda/victory.html WILDCARD Could the hard-won victory against the Communications Decency Act be wasted by a lone wolf's lawsuit in New York? By Declan McCullagh (declan@well.com) There's a wild card in the ongoing legal assault on the Communications Decency Act (CDA): a little-known online journalist named Joe Shea, who this April filed a lawsuit against the CDA in federal court in New York City. While most eyes have focused on the Philadelphia federal courtroom, where a high-profile coalition of 45 civil liberties groups, individuals, and corporations won a ringing victory on June 12, Shea has been quietly moving ahead with his own lawsuit and expects a decision late this week. If the Department of Justice (DoJ), which is defending the CDA, loses Shea's case and defies conventional wisdom by appealing it instead of the Philadelphia case to the Supreme Court, the fallout might be disastrous. The detailed court record that the American Library Association (ALA) and American Civil Liberties Union (ACLU) attorneys painstakingly assembled would be largely for nothing. An estimated $1 million in attorneys' fees would be gone. And the nation's high court would define the ground rules of speech in cyberspace based on Shea's weaker, narrower lawsuit, which challenges only part of the CDA. The next move is the government's, and it's not talking. The Solicitor General has until July 2 to decide whether or not to appeal the Philadelphia court's unanimous decision, which declared the CDA unconstitutional and granted a preliminary injunction preventing the DoJ from enforcing the law. "They'd be more likely to appeal ours because the Philly case went so completely against them," says Shea, who is suing on behalf of the American Reporter newspaper, which he publishes online. Llew Gibbons, a law fellow at Temple University, agrees. He predicts that if the DoJ loses Shea's case, "they'll wait and choose the weaker of the two cases" to appeal to the high court before the July 2 deadline. Unlike the suit in Philadelphia, which sought to overturn both the "indecent" and "patently offensive" portions of the CDA, the American Reporter suit challenges only the part of the CDA that criminalizes the displaying of anything that might be deemed "patently offensive." Shea's attorney, Randall J. Boe, says he didn't challenge that section of the CDA since "it was not clear" that it "applied to what Joe [Shea] was doing." As an individual, Shea also was unable to teach the judges as much about the Net as the ALA/ACLU coalition did. So even if Shea wins in the Supreme Court, netizens would still be subject to part of the CDA, which slams violators with $250,000 fines and two years in a federal pen. In the worst case scenario, however, with Shea losing in the Supreme Court, the Justice Department could ask that the ALA/ACLU injunction be vacated completely. This would revive all of the CDA's provisions, hitting violators with $250,000 fines and two years in a federal lockup. "That's the real danger," says Chris Hansen, who heads the ACLU's legal team. "If Shea goes up and Justice wins, they'll come back in our case and knock us out." However, Hansen is confident the government will appeal the ALA/ACLU case: "Justice is going to be hard pressed to take one case up and not the other, particularly if they were to take up just the Shea case." How did this muck-a-muck happen? It started late last year when the ACLU began work on a court challenge to the CDA. Its lawyers contacted everyone thinking of challenging the act, including Shea's attorney, and invited them to join the coalition lawsuit as co-plaintiffs. "I said we should work together and that we'd be happy to work together in any way," Hansen says. But neither Shea nor his attorney ever called back, says the ACLU. It's clear why: Shea detests the ACLU. Earlier this year, he attacked the organization, accusing them of "behind the-scenes manipulation of the judges," and saying "[t]here are a lot of us out here who don't want to free every rapist and murderer on technicalities, who nonetheless feel a strong sense of guardianship for the Bill of Rights." This spring found Shea arguing on the cda-l mailing list that the First Amendment doesn't apply to graphics as it does to words - which is why his lawsuit focuses on his text-only American Reporter Web site. "I don't consider soft porn photographs 'speech,' but 'commerce,'" wrote Shea. "We support what they write, but not what they photograph." On February 8 the ACLU filed its lawsuit without Shea and was joined by the ALA/Citizens Internet Empowerment Coalition plaintiffs a few weeks later. "We got an invitation from the ACLU to consolidate with them. Frankly, I didn't think much about it at the time," says Shea, who already had published plans to file his lawsuit. "I didn't see a lot of value with everyone being in the same courtroom." If the government chooses not to appeal the ALA/ACLU decision, its attorneys have until July 11 to respond to the Philadelphia court's ruling. One of the Solicitor General's options is to ask the court to rule on a permanent injunction, but experts say the government wouldn't want to return to Philadelphia after such a resounding defeat. Another option is to do nothing, which is unlikely after Clinton pledged in February to defend the CDA in court. Or perhaps the New York City judges will wait until the government's July 2 deadline runs out before announcing their decision. Rather than going head-to-head with heavyweights such as the Microsoft Corporation and the American Society of Newspaper Editors, the Solicitor General will take the Shea case since it has only one plaintiff, predicts Temple University's Gibbons. "If you have a choice between appealing a case with a nun and one with a prostitute," he says, "you choose the prostitute." Or perhaps a call girl. Muddying the already complicated situation is another New York City CDA lawsuit filed by Fred Cherry on behalf of "Johns and Call Girls United Against Repression." It hasn't been joined with Shea's case, but Cherry promises to "tag along all the way to the Supreme Court." Whatever happens, Shea's largely-overlooked lawsuit could be - against all odds - the case that defines the future of free speech online. Now a wild card, Shea could turn out to be the joker. ---- Declan McCullagh (declan@well.com) writes about cyber-rights issues and is a plaintiff in the ACLU lawsuit challenging the Communications Decency Act.