CDA Court Challenge: Day #1

[Declan McCullagh <declan@eff.org>]

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                           The CDA Challenge, Day #1
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         By Declan McCullagh / declan@well.com / Redistribute freely
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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.


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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/

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