From: "Declan B. McCullagh" <declan+@CMU.EDU>
Date: Mon, 6 May 1996 07:12:18 +0800
To: cypherpunks@toad.com
Subject: F-C CDA Dispatch #9: Battle of the Briefs
Message-ID: <8lXD6G200YUzMAJ2ZD@andrew.cmu.edu>
MIME-Version: 1.0
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                        Fight-Censorship Dispatch #9
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                  The CDA Challenge: Battle of the Briefs
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         By Declan McCullagh / declan@well.com / Redistribute freely
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In this update: Anti-porn groups egg on the Justice Department
                Confusion in the ranks: What's indecent?
                Theocratic right cites Rimm study in pro-CDA journal article
                Broad coalition files pro-ACLU brief
                What's next?


MAY 4, 1996 -- The CDA is a "work of art" that "is sensitive to the
First Amendment," Bruce Taylor and Cathy Cleaver argue in an amicus
brief supporting the DoJ filed in Philadelphia earlier this week.

The two longtime anti-pornsters submitted this weighty 85-page legal
document -- complete with over 100 pages of attachments including Jake
Baker's notorious snuff story -- on Monday, the same day the ACLU,
ALA, and the DoJ submitted their post-trial briefs, findings of fact,
and proposed conclusions of law.

I had asked Enough is Enough! to FedEx me the Taylor/Cleaver draft,
but The Brucester himself showed up at my office with a copy the next
afternoon, chipper and grinning and bouncing about. ("Hide your porn!"
he yelled as he walked in.) Taylor was in town for smut-research and
he clearly was proud of his completed legal object d'art.

What else could it be, with such delectable oeuvres as this:

  Expecting children to locate hidden Easter eggs sounds reasonable
  and enjoyable, unless those who have hidden the eggs are aware that
  they are rotten. No reasonable person, who cares about the
  well-being of children, would leave it up to children to find and
  dispose of rotten eggs. In the world of online communications,
  parents will be left as children, hunting frantically for thousands
  upon thousands of rotten eggs in a cyberworld of indecency,
  scurrying to find all of them before children are contaminated. [p35]

The arguments advanced in the brief -- a joint venture of Morality in
Media, the National Law Center for Children and Families, the Family
Research Council, Enough is Enough!, and the National Coalition for
the Protection of Children and Families -- center around one concept:
indecency means pornography.

That idea stinks like, well, a rotten egg. Their argument, which
mirrors the DoJ's, goes as follows:

  1. The CDA merely "updates" and "amends" Federal obscenity statutes
     and dial-a-porn laws.
  2. All the CDA does is require adults who use "patently offensive"
     sexual expression to "put electronic blinder racks" in front of
     their "pornography."
  3. The test for "indecency" is not vague or overbroad and does not
     apply to "serious works of literature, art, science, and politics."
  4. What is indecent "is well known to the public and the operators of
     mass communications media facilities." (If "indecency" is too
     vague, the CDA is unconstitutional.)
  5. The court has an obligation "to interpret these sections
     narrowly." That is, the three-judge panel should *reinterpret*
     the CDA to affect only "prurient pornography." Taylor calls this
     "judicial narrowing," and when I spoke with him he insisted that
     it was what the court will do.

Equating "indecency" with "pornography" is misleading, since courts
have held that George Carlin's monologue and Allen Ginsberg's poetry
can be regulated as indecent. As cyberlibertarian attorney Harvey
Silverglate writes on the fight-censorship mailing list:

  My objection to the current debate is that they talk of "smut."  My
  client, Allen Ginsberg, wants to broadcast some of the finest poetry
  written this century in this country.

The "family values" brief concludes:

  Purely selfish motivations based on one's desire to rebel against
  the "government" and be free from society's code of conduct in
  "cyberspace" is NOT a legal justification that should be accepted by
  the courts...

  Criminal laws against distributing pornography to children have
  literally saved countless lives. These lives are needed not for any
  threat posed by men of good will, but rather by those who would
  exploit the vulnerable and impressionable for their personal gain...
  Senators Exon and Coats deserve thanks from every family in America
  and the CDA deserves to be upheld.

Do I detect some pride of CDA authorship from Taylor and Cleaver?
Though the Hon. Jim Exon *does* deserve our thanks -- for retiring.


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               CONFUSION IN THE RANKS: WHAT'S INDECENT?
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The Justice Department and their anti-porn crusading allies can't even
agree on who should be locked up under the CDA.

On page 27 of his brief, Bruce Taylor cites the Amateur Action images
and Jake Baker's explicit rape-and-murder story as examples of
net.materials that are harmful to minors and that show "callous
disregard for public decency."

The EFF, a plaintiff in the ACLU coalition lawsuit, has Baker's story
on its web site and has made it clear in an affidavit that they
distribute such material online in the context of legal discussions.

But the DoJ says in their post-trial brief filed on Monday: "It can be
said that none of the plaintiffs' Web sites appear to engage in the
type of speech which Congress has targeted in the CDA."

So does Baker's story violate the CDA or not? Do you believe Taylor, a
former Cleveland city prosecutor, a former senior trial attorney in
the Child Exploitation and Obscenity Section of the Criminal Division
of the DoJ -- a guy who crows that he played "a central role in the
development and passage" of the CDA?

Or the DoJ attorneys, who are charged with enforcing it??

Even the DoJ's own witnesses can't come up with a good working
definition, as the ACLU illustrates in their post-hearing brief:

  The responses offered by government witnesses Schmidt and Olsen to
  the Court's questions illustrated just how freewheeling the
  subjective, discretionary judgments of police and prosecutors would
  be... Dr. Olsen opined that any of "the seven dirty words" made
  famous by the Pacifica decision, or their synonyms, could be
  subject to [the CDA] and should therefore be "tagged," as should
  nudes even if displayed on a museum web site.


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      THEOCRATIC RIGHT CITES RIMM STUDY IN PRO-CDA JOURNAL ARTICLE
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Thanks to the American Center for Law and Justice, Marty Rimm's bogus
cyberporn study just won't die.

The ACLJ is a legal advocacy group for the theocratic right -- Pat
Robertson's response to the ACLU. Says Robertson: "Someone has got to
stop the ACLU in court, and that's what we're going to do." They're
trying -- the ACLJ submitted Yet Another amicus brief over a week ago
supporting the Justice Department's defense of the CDA.

In the latest issue of the Journal of Technology Law and Policy, the
ACLJ defends the CDA and uncritically cites Rimm's discredited study.
A clue to the quality, honesty, and integrity of the ACLJ's
scholarship can be found in the way the group argues that Rimm's
"research" and TIME magazine's cover story provide evidence of "smutty
sex and scatologica" and justification for net-regulation:

   {17} On June 26, 1995, Senator Charles Grassley spoke in support of
   his legislation, the "Protection of Children from Computer
   Pornography Act of 1995. [20] Speaking to the motivation for his
   bill, which would have amended the federal criminal code, Senator
   Grassley warned the Senate of "the availability and the nature of
   cyberporn." He advised the Senate on a Carnegie Mellon University
   study of visual images available on the Internet...

Note the ACLJ's convenient fiction of the "Carnegie Mellon Study." The
group never reveals that Rimm was an undergraduate passing himself off
as a faculty member, that his study has no credibility outside
theocratic right lobby groups, that the study itself is fraudulent,
and that CMU is investigating Rimm for ethical violations.

Somehow I'm not surprised that the authors of the ACLJ article, Jay
Alan Sekulow and James Matthew Henderson, overlooked those details.
Sekulow did not respond to email inquiries.


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                   BROAD COALITION FILES PRO-ACLU BRIEF
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Last month a broad coalition of professional groups, academics, ISPs,
and individuals opposed to the CDA submitted a Brief of Amici Curiae
in support of the ACLU lawsuit and motion for a preliminary
injunction. That brief is now online.

Represented by the Philadelphia law firm of Schnader, Harrison, Segal
& Lewis, the coalition includes the Authors Guild, American Society of
Journalists and Authors, Feminists for Free Expression, Palmer Museum
of Art, Philadelphia Magazine, Psinet, Inc., and the Reporters
Committee for Freedom of the Press.

Some of my favorite excerpts:

   It is not only speakers on the Internet who feel the chill posed by   
   the CDA. The millions who access speech on the Internet feel it as
   well. [...] Recipients of speech are equally entitled to protection
   under the First Amendment. That protection is afforded "to the
   communication, to its source and to its recipients both." Virginia
   State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.
   748, 756 (1976). 

   Abuses involving "indecent" and "patently offensive" behavior also
   are perpetrated today, and the Internet is the quickest and most
   effective tool for exposing them. One wonders whether the
   disappearances or indeed the Holocaust would have occurred so brazenly
   if the Internet had been reporting on them twenty or sixty years ago. 


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                                 WHAT'S NEXT?
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The closing arguments for our case are scheduled for May 10, when the
plaintiffs and the DoJ will present an expected four hours of closing
arguments. The three-judge panel likely will issue a decision three or
four weeks later, and appeals from either side go directly to the
Supreme Court.

What happens if we lose? The ACLU's Ann Beeson said on HotWired's Club
Wired last week:

  Losing the facial challenge would not by any means end the matter --
  that is, we could still argue that the CDA is unconstitutional "as
  applied" to particular defendants that DOJ decided to prosecute.
  Of course, in the meantime we'd still see a huge chill on protected
  speech...

  It is clear that we have the facts on our side -- the much harder
  question is the law itself, and unfortunately, it is a rare day that
  a federal court will overturn an Act of Congress. (But I remain
  cautiously optimistic.)

If you're near Philly, stop by the Federal courthouse at 7th and
Market Streets at 9:30 am on Friday. The courtroom will be packed.

Stay tuned for more reports.


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We're back in court on May 10 for closing arguments.

Mentioned in this CDA update:

  Excerpts from DoJ and anti-porn groups' CDA briefs:
    <http://fight-censorship.dementia.org/dl?num=2387>
  Transcript of Olsen's "-L18" description and other testimony:
    <http://www.cdt.org/ciec/transcripts/April_15_Olsen.html>
  More on ACLJ and Rimm study:
    <http://fight-censorship.dementia.org/dl?num=2328>
  Jake Baker story on EFF's web site:
    <http://www.eff.org/pub/Legal/Cases/Baker_UMich_case/baker.st