----------------------------------------------------------------------------- The CDA Challenge, Update #5 ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- In this update: Yet Another CDA Lawsuit: Fred Cherry v. Janet Reno Deception and deceit from DoJ's Jason Baron URLs for the DoJ's dirty picture list The true identity of Grey Flannel Suit April 9, 1996 PITTSBURGH, PA -- Fred Cherry wants a Federal court to uphold his right to flame. Lambasting "homonazis" on USENET is his inalienable right under the First Amendment, argues the notorious netizen in his anti-CDA lawsuit filed yesterday in New York City on behalf of "Johns and Call Girls United Against Repression, Inc." Cherry's beef with the law is that under its ban on "indecency," when he gets flamed by "Australian homosexual nazis" he won't be able to flame back. His complaint charges that his "Australian opponent will have MORE freedom of speech" than he does -- unless the CDA is struck down. The self-taught amateur lawyer attached 20 pages of net.flamage as his sole exhibit. One example that was spammed all the way from soc.men to alt.christnet.second-coming.real-soon-now: "Your ass is so blocked up that you do need some therapeutic relief for your constipation -- a condition which has backlogged all the shit right back up into your head, Fred." The indefatigable Cherry replied: So, ramming a huge dick up my ass would be a therapeutic measure, would it? You homos are the chief cause of AIDS in the United States with your huge dicks being rammed up each other's asses. And then you homos go around whining that the government isn't doing enough to find a cure for AIDS. [12/22/95] Ya gotta love this guy. He sent me mail describing his legal strategy, concluding: "Can anyone deny that I am indeed the greatest amateur lawyer since Caryl Chessman?" Of course Chessman -- California's "Red Light Bandit" rapist -- was executed in 1960, his jailhouse lawyering failing him in the end. Cherry's lawsuit was easy to prepare. He grabbed the ACLU's complaint from their web site, printed it out, added a few grafs about his net.nazi adversaries, and trotted off to Federal court. When Cherry filed his suit, which he's moved from Brooklyn to Federal court in Manhattan, he wrote: I am primarily a political activist, working for the repeal of laws criminalizing adult prostitution and the patronizing of adult prostitutes. Over the past thirty years I have found that, in the United States, homosexuals are the worst enemies of the civil rights of women prostitutes and their male clients. The Cherry v. Reno case, refiled at docket number 96 Civ. 2498, most likely will be consolidated with the American Reporter case, which is also moving forward in the U.S. Second Circuit Court of Appeals. A.R. editor Joe Shea will probably fight it. Shea refused to join our lawsuit because he can't stand the ACLU and wants to do his own thing, so he'll probably try to keep Cherry's case from being joined with his. In fact, he accused the ACLU of putting Cherry up to it. +-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+ I would never have suspected the DoJ attorneys of trying to deceive Federal judges, but now I wonder. The DoJer I've had the most contact with is Jason Baron, a short, portly guy who tries to land roundhouse punches during cross-examination but instead keeps slipping up on technical terms. He also wrote the Justice Department's reply to our initial complaint. In that brief, the Civil Division lawyer uncritically cited Marty Rimm's cyberporn study -- featured last summer on the cover of TIME magazine -- as an authoritative reference on net.smut: This article describes material located primarily on USENET newsgroups, i. at 1865-76, and on adult commercial bulletin boards (BBS), i. at 1876-1905. Defendants offer this as an initial reference of the availability and nature of obscene and indecent material from some on-line sources, such as USENET and BBS. [sic] Maybe Baron thought nobody would notice. But there's no excuse for not knowing that the study was deliberately fraudulent: The New York Times printed an editorial exposing it; Rimm's connections with "family values" groups have come to light; Donna Hoffman and I run extensive web sites debunking the study; Carnegie Mellon University claims to be investigating the ethical misdeeds of their former undergraduate. Even attorneys who used to work within Baron's division of the Justice Department complain that Baron deliberately foisted this fraud off on Federal judges: I'm embarrassed... They should have mentioned that the "study" came under heavy critical fire almost immediately upon release. I trust the opposition will make hay of this omission. In this context, this "study" is not just another controversial report, but one whose provenance is well known to be in doubt among the relevant actors. That much should have been ackowledged in the quoted footnote, at least along the lines of, "While the methodology of this study has been challenged, defendants believe it to represent..." etc. [4/7/96] By citing this study and appending its complete text without informing the court that it was a hoax, Baron revealed the impoverished ethics of the Justice Department. Interestingly, the Code of Professional Responsibility and the Rules of Professional Conduct make it a disciplinable offense for a lawyer to "knowingly use perjured testimony or false evidence." Under Title 11, attorneys can be sanctioned for introducing false evidence. Perhaps we shouldn't be too surprised by all this. After all, Baron is the same attorney who confuses EFF with IETF -- not to mention his additional duties as the DoJ's courtroom-cop. Recall that when I was asking the mysterious Grey Flannel Suit a question, Baron came over and interrupted us. Now I've learned that he's threatening to report me to "higher authorities" if I talk to his witnesses again. (!) Yeah, Grey Flannel Suit is going to take the stand. He's none other than the DoJ's cybersexpert witness -- Special Agent Howard A. Schmidt from the Air Force Office of Special Investigations. Guess that explains why Baron was so desperate to keep me from talking with him the other day. Baron's authoritarian streak showed again during the March 21 hearing, when I joined some members of the press in paging through the ACLU's copy of the DoJ's dirty pictures binder. Baron charged over and snatched it away, snarling: "Not available to the public." Well, the URLs ended up in my mailbox anyway, so here they are for your amusement: http://www.pu55y.com/hotsex/join.html http://shack.bianca.com/shack/misc/terms.html http://www.intergate.net/untmi/obbs1.html http://www.whitman.edu/~burkotwt/pornpics/lady941.jpg http://www.wizard.com/~gl944vx/gifs/01_21.jpg http://www.vegaslive.com/sgguests/ginger.html news:4hrs89k%24oap@what.why.net http://monkey.hooked.net/monkey/m/grinder/nikkita/graphics/nikki36.jpg news:313F56FD.3F19@access.mountain.net news:4hb94m%24sij@asp.erinet.com http://www.sexvision.com/web2.htm news:314048f.1657746@news.netwalk.com The DoJ has full-color printouts of these images, which are sexually explicit but *not* obscene -- Baron wanted to remind the court that placing these JPEGs online publicly would not be a criminal act without the CDA. For someone who's defending a ban on smutty stuff on the Net, Baron is surprisingly embarrassed to talk about it. Vanderbilt Professor Donna Hoffman reports: [Baron] deposed me for over 7 hours, beginning on a Monday morning at 9am. The most interesting part of the deposition was when he brought out several large binders and started going through some of the material in them and looking increasingly uncomfortable. Eventually, he spoke and started to apologize saying he might have to show me some materials and his New England background made him feel uncomfortable about it. He honestly was squirming and sweating a bit and then, after a brief lunch, we resumed and he did eventually show me some materials, but they were not surprising or of the type that I would have thought would make him squirm like that. I did wonder if it was some sort of "act," but he seemed genuinely embarassed. In hindsight, I wonder if it was because I am a woman and that was really the part that made the idea of showing me sexually explicit materials uncomfortable for him. I guess that Baron is a true "gentleman" who believes that certain topics like dirty pictures are unmentionable in mixed company. Avoiding embarrassment is just another reason to censor the stuff! On April 12, Grey Flannel Suit (aka Special Agent Schmidt) will take the stand and snarf around the net for dirty pix. He'll be followed by our last witness, MIT's Albert Vezza, and then BYU/CMU's Dan Olsen. Stay tuned for more reports. ----------------------------------------------------------------------------- We're back in court on 4/12, possibly 4/15, 4/26 for rebuttal, and 6/3 for closing arguments. Mentioned in this CDA update: DoJ's brief citing Marty Rimm's cyberporn study: <http://www.law.miami.edu/~froomkin/seminar/ACLU-Reno-TRO-Justice-brief.htm> Text of complaint from Fred Cherry v. Janet Reno: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2108> Flamewar attached as exhibit to Fred Cherry v. Janet Reno: <http://fight-censorship.dementia.org/fight-censorship/dl?num=2109> Fred Cherry's reasons why he filed his lawsuit: <http://fight-censorship.dementia.org/fight-censorship/dl?num=1911> Relevant excerpt from Fred Cherry's original complaint: <http://fight-censorship.dementia.org/fight-censorship/dl?num=1891> Rimm ethics critique <http://www.cs.cmu.edu/~declan/rimm/> Censorship at CMU <http://joc.mit.edu/> The American Reporter <http://www.newshare.com/Reporter/today.html> Grey Flannel Suit <howardas@aol.com> Previous cases DoJer Jason Baron worked on: <http://www.eff.org/pub/Legal/Cases/Armstrong_v_President/> <http://snyside.sunnyside.com/cpsr/government_info/info_access/PROFS_CASE/> Joe Shea's complaints about ACLU wanting to "stand alone in the limelight": <http://fight-censorship.dementia.org/fight-censorship/dl?num=2014> <http://fight-censorship.dementia.org/fight-censorship/dl?num=2036> <http://fight-censorship.dementia.org/fight-censorship/dl?num=2037> This report and previous CDA Updates are available at: <http://www.epic.org/free_speech/censorship/lawsuit/> <http://www.eff.org/pub/Legal/Cases/EFF_ACLU_v_DoJ/> <http://fight-censorship.dementia.org/top/> To subscribe to the fight-censorship mailing list for future CDA updates and related net.censorship discussions, send "subscribe" in the body of a message addressed to: fight-censorship-request@andrew.cmu.edu Other relevant web sites: <http://www.eff.org/> <http://www.aclu.org/> <http://www.cdt.org/> -----------------------------------------------------------------------------