F-C CDA Dispatch #9: Battle of the Briefs

----------------------------------------------------------------------------- Fight-Censorship Dispatch #9 ----------------------------------------------------------------------------- The CDA Challenge: Battle of the Briefs ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- 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. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ CONFUSION IN THE RANKS: WHAT'S INDECENT? +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ 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. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ THEOCRATIC RIGHT CITES RIMM STUDY IN PRO-CDA JOURNAL ARTICLE +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ 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. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ BROAD COALITION FILES PRO-ACLU BRIEF +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ 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. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ WHAT'S NEXT? +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ 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. ----------------------------------------------------------------------------- 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