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        I hope that you will forgive the multiplicity of items that I am
posting today on the CDA and the ongoing trial.  A lot has happened
this week and I thought that you should see it all rather than have
me decide for you what you might want to read.  It is looking
rather good for "our" side.  
Stay tuned.
Barrister
***********************************
Date sent:        Sun, 12 May 1996 11:34:07 -0800
To:               telstar@wired.com
From:             telstar@wired.com (--Todd Lappin-->)
Subject:          LAWSUIT: AFA Tactics Backfire 5/10/96
Well, you know what they say...
What goes around, comes around.
In his eagerness to force the DoJ and the FBI to investigate
CompuServe for
alleged violations of the Communications Decency Act, Patrick
Trueman from
the American Family Association may have shot himself in the foot.
As it turns out, Judge Stewart Dalzell, a member of the three-judge
panel
reviewing the (un)constitutionality of the CDA in Philadelphia, got
wind ot
the AFA's intimidation campaign and made it an issue during closing
arguments that took place last Friday.
As the following excerpt from the New York Times recounts, Dalzell
pummeled
government lawyers with questions about how a publisher could
establish a
defense acceptable to the Justice Department, and noted that
CompuServe had
employed every known shielding mechanism available in the
marketplace now,
including printed warnings.
"What more could CompuServe have done?" Dalzell asked.
Well said, you honor.
Judge Stewart Dalzell Fan Club, anyone?
Also attached is an ACLU Trial Update summarizing other highlights
from
Friday's court session.
Work the network!
--Todd Lappin-->
Section Editor
WIRED Magazine
=====================================================
From: The New York Times
May 11, 1996
http://www.nytimes.com
Decency Act Hearing Erupts Over FBI 'Review'
By PAMELA MENDELS
PHILADELPHIA -- The Justice Department came under fire in a Federal
courtroom here on Friday during closing arguments on the
Communications
Decency Act after it was disclosed that the Federal Bureau of
Investigation
had "reviewed" complaints of "indecent material" on the CompuServe
on-line
service.
The Government had agreed to refrain from investigating on-line
indecency
while the new law was being challenged in Federal court. A
three-judge
panel is hearing the case under special rules established by the
statute
itself to insure swift judicial review.
Judge Stewart Dalzell, a member of the panel, repeatedly cited the
inquiry
-- which the Government insisted was not an investigation -- as
evidence
that the contested law could be flawed.
[ ... ]
Outside the courtroom where closing arguments in the case were
heard on
Friday, Ennis dismissed the Justice Department distinction between
a review
and an investigation as a "semantic fine quibble."
"We found out about this and got very upset, because it seemed to
us it
might violate the court order," he said, adding later: "It has
caused
serious marketplace injury to CompuServe and sent a chill through
the
industry."
The hearings concluded on Friday after a month-and-a- half, with
the
plaintiffs arguing that the law was too vague and broad to pass
First
Amendment muster, and the Government arguing that it was narrow
enough to
meet Constitutional standards and protect children.
But in questioning Government lawyers, Dalzell frequently pointed
to the
CompuServe "review."
Jason R. Baron, a Government lawyer who had come prepared to argue
that the
law provided for a series of defenses that content providers could
take to
protect themselves, found himself facing a newly skeptical Dalzell.
Dalzell pointed out that two of the defenses seemed to be the very
actions
that CompuServe had taken to keep its adult sites out of the reach
of
children: placing sexually explicit material in a separate
directory and
providing parents with the ability to block children's access to
the site.
Dalzell pummeled Baron with questions about how a publisher could
establish
a defense acceptable to the Justice Department, and noted that
CompuServe
had employed every known shielding mechanism available in the
marketplace
now, including printed warnings.
"What more could CompuServe have done?" he asked.
Baron declined to discuss the CompuServe case, but Dalzell returned
to the
issue after Baron argued that a publisher could supply himself with
a
defense merely by registering the Internet address with registries
of
on-line material. Dalzell retorted that the action that CompuServe
had
taken "got them headlines in their local newspaper," and could have
cost
them business.
Dalzell also questioned Baron closely about just how much comfort
these
defenses would provide publishers anyway, since they would not
prevent
prosecution. "It just says the jury might acquit you," Dalzell
said. "It
doesn't say you might not be indicted. It doesn't say `we won't
prosecute
you.' " Dalzell added that fear of prosecution could well make
publishers
skittish about posting sensitive information. "In a First Amendment
setting, this chilling effect of a prosecution is something we need
to
consider," Dalzell said.
[ ... ]
In another display of skepticism about the law, Dalzell asked
Government
lawyers on Friday why indecency on the Internet should be treated
any
differently from indecency in print.
To make his point, he held up a copy of The Philadelphia Inquirer
and
pointed to a prominently displayed front-page photograph of a
Liberian
militiaman killing a prisoner who pleaded for his life. Dalzell
said that
his 10-year-old son, an avid Phillies fan, turned to the paper
eagerly
every day to read the sports pages and could not have helped but
notice the
photograph. Would a law requiring the paper to give disturbing
pictures
less prominent display be unconstitutional? he asked.
When Anthony J. Coppolino, a Government lawyer, argued that the
Internet
was more akin to broadcast, which, unlike print publications may be
regulated for indecency.
Dalzell was not persuaded. The judge maintained that the newspaper
photograph was more offensive than sexually explicit Internet
sites. "He
seizes this prisoner," Dalzell said of the photograph, "and is
wantonly
murdering someone who is begging for his life."
###
========================================
ACLU V. RENO: TRIAL UPDATE
AT CLOSING ARGUMENTS, ACLU CALLS ON COURT
TO PROTECT FREE SPEECH IN CYBERSPACE
FOR IMMEDIATE RELEASE
                                                Contact: Emily
Whitfield
                                                212-944 -9800, x426
                                                emilyaclu@aol.com
Friday, May 10, 1996
PHILADELPHIA-- A three-judge panel heard closing arguments today
regarding a  law that would criminalize free speech in cyberspace.
Plaintiffs and defendants each had approximately two hours to make
their case and answer questions from the judges.
Much of the government's argument today hinged on a proposal
requiring Internet users to identify so-called indecent or patently
offensive words or images with an electronic"tag."   But by the end
of the day, government lawyers conceded -- under pointed
questioning
from the judges -- that it would be impossible to implement this
scheme given the technology currently available.
That concession alone, the ACLU said, could justify granting
plaintiff's motion for a preliminary injunction against the
censorship provisions of the Communications Decency Act, which
criminalizes making available to minors "indecent" or "patently
offensive" speech online.
"It's about time that the government conceded what the cyberspace
community has known all along -- that this is an unworkable law,"
said Christopher Hansen, who presented oral arguments for the ACLU.
"And even if it were feasible, it is constitutionally unthinkable
to
give the government the power to restrict valuable speech, or to
compel people to pejoratively label their speech."
Government lawyers also acknowledged today that the law
criminalizes
speech of value -- e.g.,  artistic, literary or medical information
-- not just "pornography" or other prurient words or images that
aren't covered under existing obscenity laws.  In fact, as Hansen
pointed out to the Court, Congress made sure that the
Communications
Decency Act applied specifically to libraries and educational
institutions, and rejected several opportunities to make any
exceptions for valuable speech.
Such an omission might have been a "legislative craftsmanship
problem," suggested Anthony Coppolino, one of the lawyers appearing
for the Department of Justice.  But that argument was met with
skepticism from the judges.
"The government is basically saying eetrust me' when it comes to
determining what kind of online words and images will be considered
eeindecent' or eepatently offensive,'" said Marjorie Heins, a
lawyer
on the ACLU v. Reno team.  "But they were not able to offer a
coherent explanation as to what those terms mean."
The risk involved to individuals in making such a determination is
especially grave when criminal penalties are involved, the ACLU
emphasized.  The CDA provides for penalties of up to two years in
jail and $250,000 in fines.
Addressing this issue, Judge Stewart Dalzell asked the government
how it would view an individual such as ACLU plaintiff  Kiyoshi
Kuromiya, who has vowed to maintain his website no matter what.
Kuromiya has testified that his website, the Critical Path AIDS
Project, provides "lifesaving" information on safer sex practices
--
some of it necessary sexually explicit --  aimed at reaching teens
around the world.    Justice Department lawyer Jason Baron
responded
that if Mr. Kuromiya didn't want to comply, "he can take the
consequences."
Overall, the ACLU said, plaintiffs succeeded in making three
essential points to the court:
--  The Communications Decency Act is a criminal statute with
criminal
penalties.
--  The law is aimed specifically at speech that is
constitutionally
protected.

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