----------------------------------------------------------------------------- The CDA Challenge, Day #1 ----------------------------------------------------------------------------- By Declan McCullagh / declan@well.com / Redistribute freely ----------------------------------------------------------------------------- March 21, 1996 PHILADELPHIA -- In the shadow of the Liberty Bell in downtown Philadelphia, the future of online liberty is being decided. I arrived halfway through the first day of the hearing in our lawsuit challenging the Communications Decency Act. Overall, it went well, though there were a few surprises, like a series of computer crashes and the Department of Justice's embrace of the rhetoric of crusading anti-porn activist Catharine MacKinnon. But most importantly, the judges are engaged in the case. CDT installed a T1 line, which is the first time a courtroom has had a live net-connection -- judges tend to insist on paper. When Ann Duvall of SurfWatch demoed the web and her software this afternoon, the judges paid attention, asked questions, and were proud when they figured out the concept of a hierarchy of pages on a web site. Her demonstration wasn't without problems. The Macintosh laptop she used to demonstrate Netscape and SurfWatch crashed three times as Duvall tried to click on the Philadelphia Phillies web site. (A great idea, though -- at least one judge appeared interested in the team.) Jonah Seiger and the other CDTers fixed the problem quickly, but then net.latency prevented Duvall from accessing the Louvre or Playboy web sites. Penthouse worked properly, though: "Blocked by SurfWatch." As I'm typing this, I saw a mention that a local television station, WCAU News 10, is going to broadcast a special on the hearing early tomorrow morning. Today's press corps included CNN, CBS, NBC, the Washington Post, the New York Times Online, the Philadelphia Inquirer, the Los Angeles Times, and plenty of local reporters. The most interesting witness might have been Dr. William R. Stayton, a psychologist and sex therapist who testified that minors were not necessarily harmed by sexually-explicit materials. Stayton is an American Baptist minister, and holds faculty appointments at LaSalle and the University of Pennsylvania. The DoJ's only female attorney present cross-examined Stayton, spinning her arguments around a twisted MacKinnon-esque logic that I've never heard even from honorary net.mascot Senator James Exon. Seems as though she wasn't just trying to establish that nekkid photos are *harmful to minors* -- she was trying to establish that they're *harmful to women.* She asked questions like: "Do these pictures depict a healthy view of women as sexual beings?" "Do you believe the pictures are a factor in leading minors to view women as sex objects?" "Do you believe that these pictures are part of a socialization process that depicts women as sex objects?" Stayton rallied, replying: "There's nothing inherently harmful about letting a six-year old view these images." Undaunted, DoJ counsel continued, quoting from the Attorney General's 1986 Commission on Pornography, page 343, entered into evidence as exhibit 80. Seems as though that section talks about how nonviolent and nondegrading sexual materials are still harmful to minors. Chris Hansen from the ACLU on redirect asked: "Why is it not harmful for minors to access sexual materials?" Stayton: "We are born sexual beings... Our children are bombarded with sexuality on all sides... 50% of kids are sexually active by 15-16 years old. 85% are active by 18." To illustrate their point, the DoJ showed the judges and Stayton examples of dirty pictures taken from the Internet, complete with URLs. The pictures were _not_ hardcore; they seemed to consist of solo naked women in various lewd and explicit poses. The DoJ did this to demonstrate the types of _nonobscene_ materials available online that they would be unable to prosecute without the CDA. I would report in more detail on the types of images, but as I and members of the press started to page through the exhibit book after the hearing, someone from the DoJ came over and told us we weren't allowed to look at them "since they weren't available to the public." I argued with him, and he maintained that since they weren't _entered into the record_ then the public had no right to see them. How odd that the Feds are unwilling to divulge the URLs of the dirty pix they use in their case! I also met Cathy Cleaver, who's the director of legal studies for the Family Research Council, and a strong supporter of the CDA. She says she thought the hearing went well for her side. I politely disagreed. By the end of the day, the judges might have been starting to "get it." When Kiyoshi Kuromiya testified about his Critical Path AIDS Project web site, which carries safe sex information, the judges grilled him about the number of minors in the USA with HIV. Later, one Patricia Warren from Wildcat Press: "Is it easier to create an ezine than a magazine?" Another asked her if "gay and lesbian information is likely to be censored?" Tomorrow morning Professor Donna Hoffman of Vanderbilt University will testify. (She was instrumental in debunking Marty Rimm's fraudulent cyberporn study. <http://www.cs.cmu.edu/~declan/rimm/>) Stay tuned for more reports. ----------------------------------------------------------------------------- The DoJ's case has been rescheduled to April 12th and April 15th. For more information and breaking updates, check out: http://fight-censorship.dementia.org/top/ Other relevant web sites: http://www.eff.org/ http://www.cdt.org/ http://www.aclu.org/ -----------------------------------------------------------------------------