"Freedom on Trial," from October 1996 Playboy

[Declan McCullagh]

[Some excerpts follow. Pick up the October issue for the full article. --Declan]



Playboy, October 1996
"Freedom on Trial: how the communications decency act played in court"

By Declan McCullagh (declan at well.com)


Day 1 (March 21)

In the shadow of the Liberty Bell in downtown Philadelphia, the future of
online liberty is being decided. A panel of federal judges has gathered
to hear a challenge to the Communications Decency Act, which bans
"indecent" or "patently offensive" material from being transmitted or
displayed online where minors might access it. That means just about
anywhere online.

[...]



Day 2 (March 22)

A key witness today is Robert Croneberger of the Carnegie Library of
Pittsburgh. The judges are pleased with his description of the
Internet as a library -- finally, someone who isn't using technobabble.
Croneberger testifies about the difficulties and expense of implementing
the CDA, noting that his library would have to hire 180 people to review
and censor the 2 million listings in its catalog. Russotto, the
government lawyer, is skeptical. During her cross-exam, she tries to make
the case that the job wouldn't be so difficult as Croneberger portrays it.

Q: Can you do a keyword search through your catalog for words related to
sex or for the seven dirty words [to find material to restrict]?
A: It depends.
Q: But a keyword search on sex wouldn't turn up books about physics,
would it?
A: I doubt it.
Q: And a search on sex isn't going to turn up books about gardening?
A: Obviously plants proliferate and flowers grow, but it depends on the
words you're using.
Q: Would a search on sex turn up a biography of Abraham Lincoln?
A: I've read many articles about his supposed sex life, or lack thereof.
Q: Would a search on sex turn up any books about geology?
A: Only if "rock" is put together with "roll."

Croneberger's point is subtle but clear. Sex can't be taken out of a
library any more easily than it can be separated from life.

[...]



Day 4 (April 12)

The government witnesses take the stand. First up is Howard Schmidt,
an Air Force special agent who says he has conducted 30 to 50
investigations of online porn. The judges are growing weary of
demonstrations and sex, so when Schmidt offers to download provocative
images from Usenet groups, the panel asks for G-rated animals instead.
After the second or third waterfowl image, Judge Sloviter rules, "I think
we've seen enough ducks."

[...]

Beyond its sheer stupidity, [Carnegie Mellon University computer scientist
Dan Olsen's -L18 self-labelling scheme] seems to be built with prudery
rather than technology. During cross-examination, the judges didn't appear
to take him seriously:

Q: If you thought about posting a centerfold from Playboy, would you
think the image might be indecent or patently offensive for persons under
18?
A; If we consider the local community that consists of Dan, Dan would be
offended.
Q: And how about the seven dirty words.
A: Dan would be offended.
Judge Buckwalter: Who's Dan?
Judge Sloviter: Yes, who's Dan?
A: That's me. I'm sorry.
Judge Dalzell: Oh, he's the community. He is an expert on what would
offend him.
A: It's a relatively small community, but it's the one I know best.
Buckwalter: I thought Dan was an acronym.

A moment later, our lawyers show Olsen a list of Internet addresses and
ask if they appear to be porn sites deserving of unsuitable-for-children
tags. He hesitates, then says, "I don't know, but I wouldn't go there."

Looking over the list, Judge Dalzell adds the punch line. "Chick of the
Day could be poultry," he suggests.

"You really are in for ducks and poultry," says Judge Sloviter.

"It's a leitmotif."

Bruce Ennis, counsel for the ALA, asks Olsen how content providers would
verify the ages of those who visit their sites. Olsen stammers a bit and
then hits on an idea. Ask the Social Security Administration! It keeps
records of such things.

Big Brother couldn't have said it better.



Day 5 (April 15)

The government has a tough road ahead. It has to convince three skeptical
judges that enforcing the CDA would not become a boondoggle. Olsen, at least,
believes it can be done. When asked if his rating system would slow the
growth of the Net, he quickly responds, "Absolutely not!"

But everyone in the courtroom seems to feel Olsen is being a weasel.
Judge Dalzell, the most Net-savvy judge and the only one with young kids
(I'm guessing the two are related), helps pin the inventor down. "Assume
a chat group -- say, students from 13 to 18 -- is talking about the CDA.
In the course of the chat, an 18-year-old is exasperated and types in
'Fuck the CDA.' Is it your proposal that before he types the message, he
should tag it -L18?"

Dalzell is paraphrasing Cohen v. California, a First Amendment case in
which the Supreme Court overturned the conviction of a teenager who wore
a jacket that read "Fuck The Draft."

Some of Dalzell's other questions were equally astute. "If in one issue of
The Economist the word 'fuck' appears," he asks Olsen, "the library
putting it online would have to go through the entire issue?"

"Somebody would have to make that judgement," Olsen replies. He suggests
that librarians band together to censor material. He insists his plan is
"flexible." To that, Bruce Ennis reponds testily, "Is it flexible if you,
the librarian, risk going to jail for two years if you make the wrong
judgment and put material online that is found to be patently offensive
for a minor?"

[...]

Sloviter isn't finished. After Olsen claims that a voluntary rating
system developed at MIT is unfeasible because it will "slow the flow"
online, she asks how an adult could show -L18 tagged materials to a
mature teenager. Olsen replies that a "teacher or parent could log on."

"Wouldn't that slow the flow?" the judge asks.

Flustered, Olsen suddenly discharges a series of staccato high-pitched
giggles. It's the damnedest thing that I have ever heard -- it sounds
like a rabbit being tortured to death. The galley stares in horror.

Thus ends the testimony of our best witness -- and we didn't even call
him to the stand.



Day 6 (May 10)

During closing arguments, Justice attorney Tony Coppolino dances around
providing a legal definition for indecency. He hints that it would
include only hard-core porn but concedes the government can't guarantee
that an ambitious prosecutor somewhere wouldn't take on an absurd case.

Judge Sloviter is growing impatient: "I've been taking the position for
17 years that people should know what they can be prosecuted for," she
says "I still don't understand" what indecency means under the CDA.

"We've been trying to get at this for 40 minutes," grumbles Judge
Dalzell.

[...]



EPILOGUE

We have won -- for now. The government's appeal will reach the Supreme
Court during the next few months. If the Court upholds the lower court
decision, outraged right-wing groups will demand action. Congress will
spring to attention. Bills will be drawn up, campaign funds raised, and
porn once again waved in the Senate chamber.

Censorship is often championed by adults who want to protect children
from a world the adults do not understand. During the hearing, Judge
Buckwalter raised this issue while discussing the computer gap between
parents and children that helps fuel fears of online dangers. "In another
generation that will fade from the picture, don't you think?" he asked.
Archaic restrictions over what we can share online, however, may not.

###