by Mark Mangan

I arrived at the third day of the hearing and said hello to the free speech contingent. We all rose as the judges entered the court, then took our seats and prepared to begin. Facing us were three judges, dressed in the customary black robes. On our left was Judge Dalzell, a balding gentleman with wild, white hair, glasses and an easy going demeanor. On the right sat Judge Buckwalter,also with glasses, a greyish full head of hair and a somewhat serious disposition. In the middle sat Judge Sloviter, a woman with a bright smile, pulled back darkish hair and a laptop opened in front of her. She is the head judge of the panel and the 3rd Circuit Court of Appeals. She ran the proceedings.

Unusually, all of the direct testimony from the plantiffs in this case was received in written form. The DOJ then had the opportunity to call the plaintiffs, and their witnesses, into court for some cross examination. The government did not come out blazing with tough questions. In retrospect it seems that they were simply trying to show that the CDA is not at all broad and those who would fall afoul of this toothless new law, could easily take precautions to sidestep prosecution.

First up to the stand was William Burrington, an Assistant General Counsel for America Online. He was well dressed and well spoken: clear, concise, and prepared. As the DOJ's Tony Coppolletti questioned him, he did much to educate the panel on the nature of online services in relation to the Internet at large.

In describing his company, Burrington chose the metaphor of a closed, private pool: it has lanes, lifeguards, and hands which check the temperature of the pool. AOL also provides a quick channel out to the sea of information--the Internet. In contrast, Internet Service Providers (ISPs) offer a straight, unmonitored conduit out to this sea.

He went on to explain how AOL draws together original content from some third parties, such as the New York Times, Atlantic Monthly, and other popular newspapers and magazines. Judge Sloviter asked about Penthouse and if AOL carried it. Burrington responded, "No." Looking for smut, she tried to continue her questioning, but admitted "I don't know any more" such magazines.

TC: "I know one more. Do you have Hustler?"

WB: "No. We have Boating magazine."

(Some laughter rippled throught the courtroom.)

The government then asked Burrington about magazines such as Smithsonian Monthly. If AOL provided pictures of naked people from remote African tribes (as seen in National Geographic) would this, in his opinion, put it at risk of being prosecuted under the CDA. Burrington's response: "Absolutely." They then went into a discussion of America Online's Terms of Service, which enforces its own kind of decency standard. Burrington explained that AOL, with 4 to 5 million users, promoted the concept of community and banned hateful, obscene, harmful, and offensive material.

Burrington explained the parental control features that allow the holder of the master account to restrict certain functions and areas of the service for children with a different userid on the same account. Parents can block access to any or all of the different chat rooms as well as "Instant Messages" between members. In the context of the Internet, parents can restrict newsgroups or just disable the ability to download binary graphic files from usenet messages. AOL has also permanently blocked certain groups which "are so obvious on the face to carry such things as child porn."

Burrington then described AOL's negotiations with certain companies that offer filtering services for the World Wide Web, saying that his company expected to integrate such controls by the summer. AOL has also agreed to incorporate a browser which is compliant with the PICS rating system standards. Importantly, he explained that AOL could never expect to control the content of the Internet in the way it monitors its "pool."

When Burrington was questioned about the ability of children to get to all AOL offerings if they obtain the password, he stressed the importance of parental responsibility. He said giving the kids the keys is like leaving the keys in the car in the garage. He also stressed the fact that AOL has created a community which encourages users to keep their eyes out for any criminal activity.

WB: "We are trying to educate parents. Just because you are in front of a computer screen, don't throw away common sense. Just like in the physical world, don't leave your children alone in shopping malls."

When asked by Judge Buckwalter whether he felt AOL was complying with the good faith defense of the CDA, Burrington responded, "I'm not sure. I don't know. There are many parts of it that are not clear."

When asked by Judge Sloveter about the "surveillance" on AOL, Burrington became unusually defensive about this term. He said he prefered the word "patrolling."

Judge Sloveter: "I don't know what else to call it."

WB: "Our people are sensitive to that."

The judges were finished and Burrington stepped down. He had given a polished testimony, and answered all questions--never at a loss for words or a clear explanation. During a brief recess I talked to a few people who were a bit skeptical of AOL's indecency policy and vague "Terms of Service," which seemed to broadly restrict much of the material covered under the CDA. Even in the context of private communities, the enforcement of "decency" rubs many people the wrong way. Stategically, it is possible that the government could use such testimony to make the argument that if an online service can competently and peacefully enforce decency in their "pool," the FCC can do it in the "sea."

Personally, I felt that Burrington presented an excellent example of an alternative for children. The testimony showed that the government is not implementing the "least restrictive means" of caring for our children if there are other choices and online alternatives.

The next plantiff to take the stand was Stephen Donaldson, the president of Stop Prisoner Rape. A man with a buzzcut, long sideburns and reserved demeanor, Donaldson answered affirmatively to questions establishing that his organization attempted to inform the public about the problem of prisoner rape and the concomitant issues of sexually transmitted diseases, such as AIDS. When asked if his Web site included a lot of "street language," he answered, "most prisoners are not educated in latin. They use Anglo-Saxon English."

Donaldson's testimony was short. He simply made the point that much of the material on his site is of a serious nature and in a language that prisoners, many of them uneducated, can understand. He feared that much of the material--stories, advice, and statistics--would be found illegal under the CDA.

Up next was Andrew L. Anker, the president of Hotwired. DOJ lawyer Craig Blackwell started with a reference to an exhibit that recently ran on his site, that included material by Allen Ginsberg. Blackwell asked if was concerned that this would be prosecuted under the CDA.

AA: "I don't understand what patently offensive' and indecent' mean and under what community standards they would be prosecuted. Considering the vague language, I'm concerned about everything."

Blackwell then talked about a Wired magazine piece on "alt.sex.bondage" that recently ran on the site. Judge Sloviter interrupted to inquire about "alt." When told that it meant alternative, she asked, "So people can talk about alternative sexual bondage?"

The judges then began to hit Anker with some tough, direct questions.

Buckwalter: " You are a content provider doing nothing to identify your content and restrict your material to minors."

AA: "Yes."

Judge Dalzell raised the concept of the PICS rating system. This had first been mentioned during Burrington's testimony, at which time Judge Sloviter asked for a technical explanation. Before he could answer, however, she asked Coppolletti if someone more technical would be called later to go over this and he answered yes. This concept continued to intrigue the judges, who subsequently brought it up a few times. Unfortunately neither the court nor the witnesses were properly versed on the subject.

Judge Dalzell: "Are you familiar with the PICS proposal? It would involve self-rating. How would you rate yourself?"

Anker was unprepared to pigeonhole his site according to a hypothetical system--particularly one that he was not familiar with. He avoided the direct question.

Judge Dalzell: "If it were based on the movie rating system, how would you rate yourself?"

AA: "To be honest..."

Judge Sloveter (interrupting): "--we assume you're being honest."

Anker did not like the line of questioning and tried to extricate himself from it. He attempted to show that it was more complicated than a single rating for the whole site. When he explained that he did not agree with how this system mildly rated violence which he found more offensive than the gratuitous sex shots in film, Judge Dalzell kept on him. Asking about the Ginsberg material: "So what would you rate it: G? PG? R?" He then brought up the alt.sex.bondage article: "Would you have to rate the whole thing NC-17?"

AA: "Well, there are a lot of pages, a lot of systems?"

Anker was simply not prepared to rate his site on the stand. He said that he had children and would not want them to read the al.sex.bondage article, but was noncommittal on how to block them via a rating system.

Howard Rheingold was then called to the stand. He was dressed in a bright pink shirt, a crazy colored tie, and a pastel, aqua-blue suit. He has a buzz cut and a big mustache and the air of a calm, educted man. The government immediately stood up to argue that he could offer nothing factual or relevant to the case and had not even reviewed any of the sites in question. Judge Sloviter seemed ready to boot him, when Chris Hansen intervened to explain that the debate was not just about Web sites and Rheingold was being offered to describe the community aspects of the Net--on which he had written a very popular and well-respected book. Judge Sloviter acquiesced, "It will be accepted for what it's worth. Now let's break for lunch."

When everyone returned Rheingold described MUDs and MOOs, which allow people to interact in real time, creating fantasy lands online. The DOJ lawyer asked what exactly would be limited in these virtual community discussions on the Net if the CDA were enforced. She put on a high brow tone and tried to come right at him: "Do you think Michelangelo's David would be found as depicting sexual or excretory functions or organs in a patently offensive manner according to community standards?"

Rheingold kindly brought her full force to a full stop: "Which community?"

The court stopped dead for a moment as he aptly exposed one of the most absurd holes of the CDA language. She fumbled around and continued somewhere else. She raised the question of his daughter that he had mentioned earlier, eliciting that he did not supervise her on the Net.

HR: "No. I teach her that just as there are nutritious things to put in your body, there are nutritious things to put in your mind."

The questioning returned to the subject of MUDs, MOOs and certain moderated groups that he had started. But the philosophical bent of his replies seemed to irk the panel--particularly, Judge Sloviter, who perhaps thought his loud dress was a mockery of the dark, serious court. When the lawyer was done she questioned him about the nature of these MUDs and MOOs. Judge Sloviter: "So stop me if I'm wrong,... this fantasy world allows people to masquerade,... or rather correct me if I'm wrong, ... this fantasy land --"

"...actually, no, let me add--" Rheingold tried to interrupt but she bluntly gestured that she had not finished.

Judge Sloveter (a bit impatient): "It allows them to masquerade, so they can play act and pretend they are other people..."

Rheingold pulled up and interjected his point: "You're leaving something out. These users create an environment independent of whether they are there or not."

Sloveter looked at him. "Leave that for the existentialists."

It was a harsh statement, the court hushed, and it looked as though Sloviter had it in for him. In response to a question raised earlier in the testimony about how much sexual content existed in these online fantasylands, Rheingold had thrown out the number 10%. Sloveter now came back with it. "What would happen if sexual content were removed? You said less than 10% existed..." Rheingold tried to respond--she continued, "...they could still play their castles in the air."

With the head judge of this panel and the 3rd Circuit hitting him with her attorney blows, there wasn't much he could do. His testimony ended soon after.

Barry Steinhardt, Associate Director of the ACLU, was the last to take the stand. He took his oath and the questioning began with the normal rigamorole about who he is and what he does. Soon he was talking about the ACLU's Web site and its presence on AOL. The DOJ introduced a particular discussion which had recently taken place on their online bulletin board, had involved the former Surgeon General Joyce Elders and covered masturbation. He expressed his fear that such serious kind of debate would be prosecuted by the government if found online.

When asked if the ACLU site had posted any sexually explicit pictures, Steinhardt responded, "No. But we wouldn't hesitate to. If we had the site up during the Mapplethorpe controversy, we would have certainly put up examples of his work." He was being a little agressive, trying to throw it back in the DOJ's face.

Steinhardt recounted an incident in which an organization which goes by ACLU (Always Causing Legal Unrest) posted a Jake Baker story on their bulletin board and the ACLU (American Civil Liberties Union) let it stand--in the name of free speech. He then quickly digressed into a quick discussion of the Jake Baker case for the court's edification. (See Baker) The court turned to the exhibit of the posted story and it must have turned their stomachs. (Baker liked to write about mutilating and raping young, innocent women.)

When it was the judges' turn they recalled an earlier statement in which Steinhardt had said the ACLU had reviewed the possibility of limiting access to their site to adults via a credit card verification system and found that it would cost $144 thousand for a month. Buckwalter raised the hypothetical of the passage of the CDA: "I don't think you would shut down your site. I think you would find a way to raise the money." The judge seemed to be goading him. Steinhardt said, "You can't put a price on free speech in cyberspace. And if you did, the ACLU probably couldn't afford it."

Bringing up the self rating system, Judge Dalzell then asked, "Would the ACLU rate itself?"

Steinhardt responded that the rating system is an "empty vessel where third parties could step in and rate. I don't want to rate the ACLU, but I'm sure there are others who would."

Referring to how he understood the PICS to work, the Judge returned, "If you don't rate, you're blocked. What would you rate yourself?"

Steinhardt: "We offer important, educational material for minors and would rate ourselves G. Others would probably rate us X."

Judge Sloviter: "Would you not, as a matter of principle, refuse to rate yourself?"

Steinhardt: "Yes."

Although some of the more interesting moments came when the judges questioned the witnesses, there were virtually no major cracks in the whole of the testimony. The DOJ was rarely aggressive and seemed on the whole to be taking notes for later, rather than pursuing a specific strategy.

The case resumes on April 12 when the government will begin presenting its witnesses. On April 3 it will file papers with the court revealing who these witnesses are.