March 21, 1996

ACLU V. RENO REPORT

From Philadelphia's Ceremeonial Courtroom in the U.S. Federal Courthouse, March 21, 1996---Its a huge courtroom, with three judges looking puny and isolated in the center of twenty-three judges' chairs in two elevated rows at the front. In front of them are two huge terminals, echoed by two projection screens flanking the courtroom.

Plaintiffs--there were four of us in the courtroom today-- were forced to wait outside, standing first on one leg, than the other, while attorneys and the press were admitted to the courtroom for an 8:30 a.m. photography session. The U.S. marshalls appeared terminally confused as they scratched their heads, trying to figure out who to let in. Saying "I'm on the list," didn't work; the list was six names written down on the back of a business card, and included only the attorneys for co-plaintiff American Library Association.

Today's session was a very unusual proceeding in several other respects. There were more reporters around, including TV crews, than have been seen in a courtroom since the Simpson trial. There was a live Internet hookup in the courtroom--probably the first time this has ever been done. And most witnesses appeared only for questioning by the judges and cross-examination by the government--their primary or "direct" testimony was submitted by affidavit.

Only two ACLU plaintiffs took the stand. Kiyoshi Kuromya and Patricia Nell Warren are both remarkable people--and I will come back to them. Declan McCullough and I also showed up (Woody Allen: "Ninety percent of life is just showing up").

The Communications Decency Act mandated that any challenge to it be heard by a three judge panel and appealed directly to the Supreme Court, by passing the intermediate appeals court. The three judges hearing the most important free speech case in sixty years are:

Dolores K. Sloviter, chief judge of the Eastern District of Pennsylvania. She is friendly, easy-going and humorous, and has a tendency to ask long, involved questions.

Stuart Dalzell, a thoughtful, intellectual judge whose questions seemed to reveal him as sympathetic to our side.

Ronald Buckwalter, the judge who originally granted the partial TRO against the CDA. Buckwalter only asked a couple of questions in the course of the day, and not very good ones--he seemed the least involved of the three.

The first witness was Scott Bradner, senior technical consultant at Harvard University and a member of the Internet Engineering Task Force. He laid the groundwork for the judges to understand the workings of the Net, explaining terms such as World Wide Web, HTML, URL, browser, and Usenet. he also gave a forecast of the next generation Internet Protocol-- 128 bit addresses, a domain name scheme where every router no longer has to know the name of every other network in the world, and better metrics. When asked if all IETF documents were open to the public, he said "Yes--we used the paradigm to build the paradigm."

Jay Baron of the Department of Justice lobbed Bradner some apparent softball questions--but with a hidden agenda. For example: The Web's graphical user interface makes it easy for users with minimal experience to access information, soesn't it? New generations of HTML authoring software make it really easy for anyone to do their own Web pages, doesn't it? The implication was that the technology allows content providers to shovel out smut and children to shovel it in--as the government will likely argue in its summation.

Bradner testified, rather confusingly, about rating systems such as PICS. First he described a feature under which you can embed a rating into a link. For example, you create a link to my pages but rate them "NC-17." A child using a browser configured not to show adult material would not be able to jump from your pages to mine. Bradner then testified that I, as the publisher, can also add rating tags to my own pages. But it was unclear whether the judges really sorted out his rather tangled presentation.

However, Judge Dalzell was very interested by the idea of rating systems. "This is a very important issue for the case." He tried to compare the Internet to the online card catalog of a library. Was it possible to assign ratings to each of the entries in the catalog, or only to the Harvard library as a whole? Bradner's answer was unnecessarily complex and it wasn't clear if Dalzell really understood that each HTML page can receive its own rating.Judge Sloviter also struggled with a complicated question-- suppose someone rated all of Shakespeare? How would you disseminate these ratings on the Internet?

Assuming that the judges are convinced that ratings systems work,both sides appear ready to argue that this conclusion supports their position. The government appeared to be implying that the CDA isn't really dangerous, since you can evade it's provisions by rating your pages to keep children out. The ACLU is arguing that the CDA is not "narrowly tailored", as the Constitution requires, because self-rating is sufficient to protect minors without the need for *any* legislation.

Judge Dalzell pointed out to Baron of DOJ that many of the ACLU plaintiffs didn't want to have to rate their Websites and block out minors from information about AIDS or safe sex. Baron tapdanced, responding that this was a legal issue for the judges to decide--he was only asking technical questions of Bradner. Dalzell would come back to this point with Kiyoshi and Patricia.

At noon, we heard the "P" word for the first time-- Baron got Bradner to agree that the Internet was "pervasive". "Pervasiveness" of radio and television has been used as a secondary argument to justify broadcast censorship, with spectrum scarcity as the government's main excuse for getting involved. Ithiel de Sola Pool, a communications visionary, wrote in his 1983 book Technologies of Freedom that "pervasiveness" would someday be used to justify quite radical censorship. That day has arrived. However, the courts have never upheld regulations based on pervasiveness where spectrum scarcity did not also exist. Hopefully, they will not start now.

baron used Bradner to introduce another key issue: technological convergence. Bradner opined that by the year 2000, there will be a single "pipe" into the house, carrying voice, video and data, and at the same time the phone, tv and computer will have converged. The significance of convergence is: When two regulated media converge with an unregulated one, what happens? The government answer: the third becomes unregulated. The freedom of speech answer: they all become unregulated.

Bradner concluded by saying that the Internet is being hyped as a threat to government control. "I personally would rather focus on the promise."

Bradner had to leave for an important meeting in DC, and will be back Friday morning for additional testimony.

Court adjourned for ninety minutes for lunch and resumed at 1:35 with Ann Duval, CEO of Surfwatch, as the next witness. There is a rule of the universe--a corollary of Murphy's Law--which says that any software demo presented to enough people under sufficiently important conditions will break down. This one was no exception. Duval experienced one fatal memory error, requiring her to reboot her portable Mac, and the Net froze twice while she was trying to show the court the Web and her Surfwatch product.

Every witness assumed that the judges didn't know very much about computers (though Judge Sloviter remarked that two out of three of them were Mac users). Duval began by explaining that "Just because a parent has bought a computer doesn't mean they're connected to the Internet automatically."

After bombing out of a Philadelphia Web site, Duval bravely attempted to show the court the Louvre pages--but the Net froze. She loaded a list of London museums instead. Using the Infoseek engine, she then demonstrated the steps her daughter had followed to research a term paper on "Fragile X syndrome". Dalzell was very interested by the Web page of the Fragile X Foundation. "How would you cite this is a paper?" Sloviter, whose questions frequently revealed she was thinking hard yet sounded like nonsequiturs, asked: "Did someone compile this or could it be word for word from some published reference?"

Duval then visited Yahoo's new kids page, "Yahooligans". By an amazing coincidence, there was a Surfwatch ad at the bottom of the page. Duval followed the link to the Surfwatch site and we were in fullscale product demo.

After describing the genesis of the product--she is a mother and wanted to protect her kids--Duval typed the URL of Playboy's Web page into her browser--and absolutely nothing happened, after four tries. Apparently, you have to access a site successfully before Surfwatch will block it. She tried again with Penthouse, and this time, got the "Blocked by Surfwatch" dialog box she was seeking.

Amazingly, the current version of Surfwatch doesn't allow you to add or delete your own sites--but the next one will. Duval also showed Surfwatch's pattern matcher, which won't let a child do a search on "sexy" in Infoseek, for example.

"The Web," said Duval, "is a place where you make an affirmative choice to go places....it doesn't just come at you."

ACLU lawyers sprang up to lift the judge's two monitors to the ground after Judge Sloviter complained she felt hemmed in. The demo was over but another DOJ guy cross-examined Duval. She testified that she employe ten college students who spend 20+ hours as week looking for offensive sites Surfwatch doesn't block.

Q: "Are they over the age of 21?"
A: "Yes."

The government established that new indecent sites are constantly being added on the Net and that there is a 28 day lag from the time Surfwatch discovers a site to the date it distributes an update to its subscribing customers blocking the new site. DOJ had also asked Bradner earlier about the "window of vulnerability" during which children may be exposed to indecency before it was blocked. Judge Dalzell was intrigued by the fact that the new version of Surfwatch will also allow you to block the entire Net--except for the sites you review and approve.

In her affidavit, Duval had referred to the "tiny percentage" of inappropriate material on the Internet. The DOJ lawyer challenged her as to whether the 5,000 sites her product blocked were really such a "tiny" percentage. A: "Yes."

Q: "Have you done any statistical research?"

A: "No."

Judge Slovitzer was concerned that Surfwatch was a for profit enterprise. What would happen if it didn't make a profit? Duval explained that there are at least four competitors, and that blocking software will always be available. Duval said that, because of the bundling of Surfwatch with online service subscriptions, she could not say how many units were installed. However, the company has fifteen hundred subscribers paying a monthly fee for updates.

Next, plaintiff Kiyoshi Kuromya took the stand. Kiyoshi is an amazing person. I had previously met him at the ACLU's kick-off press conference in Washington a few weeks back. I am proud to know him and if ACLU could only pick a couple of us to testify at trial, then Kiyoshi was an excellent choice. he has been an activist since 1959. He was injured by the police during a civil rights demonstration in Selma, Alabama in 1964; was one of the group that tried to levitate the Pentagon in 1966; was thrown off the Penn Campus for selling "Fuck the Draft" t-shirts in 1968 (ooops, little CDA violation there); and arrested, along with 12,000 other people, at the May Day demonstrations in Washington in 1971. Fifteen years ago, Kiyoshi was diagnosed with HIV, and he has had full-blown AIDS for almost five years. He is dignified, indefatigably cheerful, and in addition to fighting for our freedom of speech, runs the Critical Path Aids Project, which includes a Web resource which disseminates safe sex and AIDS treatment information.

The government at first declined any cross-examination of Kiyoshi--possibly, he is too sympathetic, and there was nothingto gain. Judge Dalzell got right to the point: What does the CDA do to you?

A: "I don't know what 'indecent' means. I don't know what 'patently offensive' means. "

Q: "How many HIV-positive people are there who are under 18 in this country?"

A: "There are about 1 million people in the U.S. infected with HIV, of which 25% were infected under age 18 or shortly thereafter."

Here, DOJ lawyer Pat Rosado popped up after all, and asked: "You are linked to other databases via HTML links?"

A: "Yes."

Q: "Did you learn HTML yourself?"

A: "Yes."

Q: "And writing HTML will become easier as new software comes out?"

A: "Yes."

Dalzell, who consistently went to the heart of the matter, asked, "If you were required to self-rate your system, would you rate it NC-17?"

A: "No. My information is explicit, but it is necessary to avoid a sexually transmitted disease. I would not want to deny young people the information necessary to save them from a fatal disease."

Judge Sloviter asked what Kiyoshi publishes which is at risk.

A: "Safe sex information, descriptions of how to avoid HIV infection."

Chris Hansen of the ACLU asked, "When you discuss safer sex practices, what language do you use?"

A: "Some people do not have the education to understand clinical language--we use street language, colloquial language."

Judge Buckwalter asked his first question at 3:30 in the afternoon: "Do you make any attempt to avoid street language, to use proper language?"

A: "I use whatever language is appropriate."

Up next was plaintiff Patricia Nell Warren. Patricia is a novelist and gay activist who observed censorship first hand when living in Spain. She is from Montana originally, where she has lobbied against censorship bills introduced by the far right. She lives in California, where she co-owns Wildcat Press, runs the Youtharts program, and is involved with the Los Angeles school boards in an attempt to ensure tolerance in the schools. Through Wildcat Press, she has republished her out-of-print novels, including The Front Runner. Patricia, Declan and I went out for dinner after the hearing; she is a wonderful person, full of experience and wisdom, and I cannot stress too much that the most rewarding aspect of being a plaintiff has been the opportunity to meet people like Patricia, Kiyoshi and Declan.

Ann Beeson of ACLU conducted Patricia's direct examination-- but again, Judge Dalzell jumped in to ask most of the questions. Patricia had testified that she sells copies of her book from her Web pages."Your credit card company charges you $1 per transaction?"

A: "Yes."

The significance of this is that inexpensive and free Web resources cannot afford to exclude minors by requiring a credit card from users before they can see explicit information.

Q: "Is it easier to start an ezine than a print magazine?"

A: "Yes. There are fewer start-up costs."

Judge Sloviter asked, "Is your material gay and lesbian literature?"

A: "Yes. Most of my books are."

Q: "Would you call Truman Capote's Other Voices, Other Rooms gay literature?"

A: "I haven't read it, but its been referred to as such."

Q: "Would literature in that category be subject to the CDA?"

A: "I'm concerned about people in this country who regard the whole area of gay and lesbian literature as patently offensive."

Q: "Is such literature available to people under 18 in public libraries?"

A: "Yes, it is."

I wasn't certain, however, that this was the answer Sloviter was expecting.

Judge Buckwalter spoke up again. "The law doesn't just say 'patently offensive'--it says 'sexual or excretory acts or organs'."

A: "I'm concerned how a group might interpret this provision in making a complaint to the Department of Justice."

At dinner, Patricia told us about a proposed law in Montana that would have required all self-declared gay people to register with the local sherriff as sex offenders.

Next on the stand was an expert witness for the ACLU, Dr. William Staton of the University of Pennsylvania. Staton is a Presbytrian minister tasked by his church with a ministry in sex education. Judge Dalzell wanted to know why Staton was testifying. "The value of sex information for minors," Chris Hansen said. If the judges get to the issue of whether the government has a "compelling interest" in preventing sex infromation from reaching minors, the ACLU was trying to convince the judges that it does not. Obviously, it is to be hoped that the court throws out the CDA because it is vague or because it is not "narrowly tailored" to do the job it sets out to do, and that "compelling interest" does not become the main issue.

DOJ lawyer Pat Rosado again conducted the cross--only this time she had that prosecutorial edge that had been lacking in the low-keyed proceedings so far. She asked Staton whether it was bad for minors to see Playboy, Penthouse or Hustler. He said no.

Q: "Do you prefer your children not to see them?"

A: "It doesn't matter to me."

Rosado showed him government exhibits 70-77, apparently explicit photos downloaded from the Web. These were not projected on the screens in front of the courtroom; at the end of the day, Declan did everything he could to get a look at these, but the DOJ people wouldn't show them to him, claiming that (though they are from the Internet) they are not public yet because not yet admitted in evidence in the case!

The voice of Catharine MacKinnon was then heard in the courtroom, speaking through Pat Rosado.

Q: "Would you agree that these images don't depict a healthy view of women as sexual beings?"

A: "Women are often exploited."

Rosado established that boys are often shown these kinds of pictures during their "socialization" process, when they are learning how to think about women. Staton insisted that most of boys' information comes from other sources than pictures.

Q: "You don't believe that exposing minors to these kinds of images is harmful?"

A: "Not in itself, no."

Rosado then began a progression, in which she asked Staton whether such images would be harmful for a 12 year old, ten year old, eight year old, six year old.....He replied to each question that there is nothing inherently harmful in sex, but "I would want to be the one to give my value system...hundreds of thousands of people have seen pictures like this and not been harmed."

Rosado elicited that Staton uses sexually explicit films in counselling, which a pharmaceutical company made expressly for him. She then embarked on her blues progression again: are the films fit for 12 year olds? 10 year olds?

"My five year old has seen them," Staton said.

Later he said, "We're born sexual. That's who we are." The primary sex educator of children should be their parents, with the church, school, and YMCA playing a secondary role. "Our children are bombarded by sex... I want them to have good information."

Judge Sloviter wanted to know if anyone would regard exhibits 70-77 as obscene.

A: "Oh yes. I know them. I know some of them."

Judge Buckwalter observed that sex education ought to be handled by parents. "Its often not, though."

Staton replied: "Parents often abdicate their role. We should do more parent training."

Staton remarked to me as he was leaving the courtroom, "If we lose this thing, I'm moving to Australia."

And that was it. We mingled with the attorneys for a while, speculating about which judges were on our side and which are not. Some of the questions, like Judge Slovitzer's, can cut either way.

I spent a lot of the day talking to Declan McCullough. Every once in a while you get into an environment where everyone you meet is remarkable. The ACLU v. Reno case has been like that. Declan is a powerhouse, a young man who is constantly multitasking: thinking, talking, working the angles in favor of the freedom of speech. There cannot have been many people his age who have irritated so many foreign governments so quickly. He knows everybody and worked the courtroom and the hallway, talking to the attorneys, reporters, witnesses and even the opposition (Cathy Cleaver from the American Council on the Family). Declan is not shy and had no trouble walking up to the DOJ lawyers and asking to see exhibits 70-77.

That night on local TV, the report on the day's hearing led off with those same cyber-smut shots. The reporters know better; but TV is a visual medium. This isn't about smut; its about protecting electronic text the same way we protect text printed on paper. And what freedom of speech is going to look like in the 21st century.