Testimony of Barry Steinhardt, associate director of the
ACLU
April 1, 1996
7 (Pause.)
8 MR. PRESSER: For purposes of our written record --
9 I am Stefan Presser --
10 JUDGE SLOVITER: You better identify yourself.
11 MR. PRESSER: I am Stefan Presser of the American
12 Civil Liberties Union. At this time plaintiffs would call
13 Barry Steinhardt, who is the associate director of the
14 American Civil Liberties Union, to the witness stand. And as
15 he makes his way forward we would also introduce -- or ask
16 permission to introduce his signed declaration of March 27th,
17 which was filed with this Court on March 28th, as the direct
18 testimony.
19 JUDGE SLOVITER: Do you have any objection?
20 MR. BLACKWELL: Your Honors, Craig Blackwell again.
21 Yes, the Government has a partial objection to the
22 introduction of Mr. Steinhardt's affidavit. There are
23 certain paragraphs in the affidavit that report the substance
24 of telephone conversations and meetings between Mr.
25 Steinhardt and members of two commercial entities, New Media
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1 Publishing and First Data Security. I believe the paragraphs
2 are 26, 27, 28, 29, 32 and 33, they're out-of-court
3 statements offered for their truth and they are classic
4 hearsay.
5 JUDGE SLOVITER: We'll accept it for what it's
6 worth, consistent with our ruling throughout. But continue
7 to object, to the extent that you haven't, so it's on the
8 record.
9 BARRY STEINHARDT, Plaintiffs' Witness, Sworn.
10 THE COURT CLERK: Thank you, you may be seated.
11 Please state and spell your name.
12 THE WITNESS: Yes, it's Barry, B-a-r-r-y,
13 Steinhardt, S-t-e-i-n-h-a-r-d, as in David, -t, as in Tom.
14 CROSS-EXAMINATION
15 BY MR. BLACKWELL:
16 Q Good afternoon, Mr. Steinhardt. Could you state for the
17 record your position at the ACLU?
18 A Associate director of the national office of the ACLU.
19 Q And you're also an attorney, correct?
20 A That's correct, yes.
21 Q The ACLU has two Internet sites, right?
22 A No, the ACLU has one Internet site, we also have -- we
23 are also an information provider on America Online.
24 Q And your Internet site, it's a Worldwide Website,
25 correct?
160
1 A Yes.
2 Q And it's open to anyone with access to the Internet?
3 A Yes.
4 Q You're site on America Online is open only to America
5 Online subscribers, correct?
6 A That's correct, yes.
7 Q The material that the ACLU posts on its Website and
8 America Online sites deal with civil liberties issues,
9 correct?
10 A Yes.
11 Q Could you turn to Defendant's Exhibit 149, which should
12 be in the binder in front of you?
13 A Okay.
14 Q That's the ACLU's home page on its Internet Worldwide
15 Website?
16 A Yes.
17 Q Now --
18 A Rather, it's its home page as it appeared at the time
19 when this was downloaded, because the home page changes from
20 time to time.
21 JUDGE SLOVITER: Please talk a little more clearly.
22 Sorry.
23 THE WITNESS: Rather, it's its home -- that is the
24 home page as it existed at the time this particular image was
25 downloaded, we do change the home page from time to time.
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1 BY MR. BLACKWELL:
2 Q Has it changed since it was downloaded as it was
3 reflected by Exhibit 149?
4 A Yes, it has.
5 Q In what sense?
6 A There is a second -- underneath the image, "Will justice
7 prevail," where it says, "Tune in to debates," there is a
8 second link; I don't remember precisely what that link is,
9 but I noticed looking last night that there was a single link
10 that had been added.
11 Q But everything else is the same?
12 A For the most part, yes.
13 Q Okay. Now, on the right-hand side of the center icon
14 there are numerous topics that make up the ACLU's content
15 that it posts on the site, correct?
16 A Yes.
17 Q And the topics include, I'll name a few, separation of
18 church and state?
19 A Yes.
20 Q Criminal justice?
21 A Yes.
22 Q Cyberliberties?
23 A Yes.
24 Q Free speech?
25 A Yes.
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1 Q Lesbian and gay rights?
2 A Yes.
3 Q Students rights?
4 A Yes.
5 Q And the rest of them are reflected there in that column
6 on the right?
7 A Yes, they are.
8 JUDGE SLOVITER: Excuse me just for a minute. To
9 put the minds of those of you in the courtroom at ease as to
10 what's going on, we have just received word that there may be
11 a fire, but it's not in this building.
12 (Laughter.)
13 JUDGE SLOVITER: And the Marshals are here and
14 presumably they'll come -- since they're not angry at all of
15 us, presumably they'll come and get us or advise us if
16 anything happens that we should know about it. So, although
17 it's a little -- you may have some concern or wonder. I'm
18 sorry to interrupt, Mr. Blackwell, but I saw Mr. Coppolino
19 turn around.
20 (Laughter.)
21 MR. BLACKWELL: I hope he's watching my back.
22 THE COURT: He's watching all of you, my guess is.
23 (Laughter.)
24 BY MR. BLACKWELL:
25 Q Mr. Steinhardt, the material that the ACLU posts on its
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1 Worldwide Website and America Online sites are in the ACLU's
2 view educational, correct?
3 A Yes.
4 Q And also in the ACLU's view the materials are
5 informational?
6 A The -- yes, but we don't control all of the postings to
7 our AOL site.
8 Q To the extent the ACLU posts content, it's in its view
9 educational or informational -- and/or?
10 A Related to civil liberties, yes.
11 Q On the America Online site, but not on the Website, the
12 ACLU also permits users to post messages on bulletin boards,
13 correct?
14 A That's correct.
15 Q And there are about a dozen bulletin board topics?
16 A There are actually, since we spoke at the deposition I
17 checked, there are 20 of them.
18 Q 20 topics?
19 A Yes.
20 Q And the topics of the bulletin boards are designated by
21 the ACLU, correct?
22 A That's correct, yes.
23 Q And those topics also relate to civil liberties issues?
24 A That's correct.
25 Q Which correspond roughly to the topics that are on the
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1 right-hand side of Exhibit 149?
2 A Roughly speaking, yes.
3 Q Now, on the America Online site and, again, but not on
4 the Website, the ACLU also has so-called auditorium events,
5 correct?
6 A That is correct, although we do publish the transcripts
7 of some of those auditorium events on the Website.
8 Q But the events themselves happen only on the America
9 Online site, correct?
10 A At this point, yes.
11 Q Could you briefly explain for the Court what the
12 auditorium events are?
13 A An auditorium event would be a session where a guest
14 speaker would be brought in and would take questions from
15 both a host, who is generally an ACLU staff person, and from
16 subscribers through America Online who would post those
17 questions by electronic mail essentially and then the
18 responses would appear, they are real-time conversations that
19 take place.
20 Q Now, the guests for these events are chosen by the ACLU,
21 correct?
22 A That's correct, yes.
23 Q And the guest is responding to questions posed by America
24 Online users?
25 A Yes.
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1 Q Now, there is a moderator for these events who is an ACLU
2 employee who chooses what questions to pass on to the
3 speaker, correct?
4 A It's either an ACLU employee or a volunteer who has been
5 trained to be a moderator.
6 Q But the point is that the moderator passes -- chooses
7 which questions to pass to the speaker, right?
8 A Yes.
9 Q And the users that are participating in the auditorium
10 events see only the question that the speaker answers,
11 correct?
12 A Yes.
13 Q Now, the guests for these forums are nationally-known
14 personalities who speak on civil liberties-type issues,
15 right?
16 A That's generally true, yes.
17 Q I'm sorry?
18 A That is generally true, yes.
19 Q Guests have included the former Surgeon General of the
20 United States, Dr. Jocelyn Elders, correct?
21 A Yes.
22 Q Who spoke, among other things, about the reasons why she
23 was dismissed by President Clinton?
24 A Yes, she spoke specifically about her references to
25 masturbation, yes.
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1 Q And users participating in the forum discussed the
2 appropriateness of the President's response to her comments
3 about masturbation?
4 A Yes, they did, both there and in bulletin boards
5 following Dr. Elders' appearance in this auditorium.
6 Q And you're concerned that those discussions about
7 masturbation in the context of Dr. Elders' firing by
8 President Clinton may be covered by the Communications
9 Decency Act, correct?
10 A Well, there is language in certainly many of the bulletin
11 board postings that's very similar to that which caused the
12 FCC to bring action against Pacifica and Infinity
13 Broadcasting. So, yes, to the extent to which it is the
14 Government's position that it is the same standard I am very
15 concerned, yes.
16 Q You're concerned about the Elders comments?
17 A I am less concerned about the auditorium event than I am
18 concerned about the bulletin boards where individual America
19 Online subscribers discussed Dr. Elders' appearance and, in
20 particular, masturbation and used street language, yes.
21 Q Now, also on the America Online site, but not on the
22 Website, the ACLU has a chat room?
23 A Yes.
24 Q Where users can discuss current events, right?
25 A Yes.
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1 Q And react to the events in other civil liberties issues?
2 A Yes.
3 Q And sometimes the ACLU sets topics for discussion in the
4 chat room, correct?
5 A Yes.
6 Q And, again, those topics would be civil liberties issue
7 oriented?
8 A Yes.
9 Q Mr. Steinhardt, could you turn to Defense Exhibit 155?
10 (Pause.)
11 A Okay.
12 Q Now, the ACLU has posted on line the complete text of the
13 United States Supreme Court's decision in FCC v. Pacifica,
14 right?
15 A That's correct.
16 Q And this is a downloaded version of that on-line posting,
17 correct?
18 A Yes.
19 Q Now, the full text of the opinion includes the Carlin
20 monologue that was at issue --
21 A Yes.
22 Q -- as part of the Supreme Court's opinion?
23 A Yes.
24 Q And the ACLU is concerned that by virtue of posting the
25 Supreme Court's decision in Pacifica it may be subject to
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1 liability under the Communications Decency Act, correct?
2 A Well, we have chosen to draw attention to those words as
3 part of the -- part of the decision, yes, and they also
4 reappear certainly in the America Online bulletin boards.
5 Q But you're specifically concerned about the Pacifica
6 decision to the extent it repeats the Carlin monologue in the
7 Supreme Court's decision, correct?
8 A It got Pacifica in a certain amount of trouble, yes.
9 Q So, you are concerned?
10 A Yes, certainly.
11 Q Now, if you could turn to Exhibit 158? The ACLU has also
12 posted on line an abridged version, I guess, of the amicus
13 brief it filed in the United States Supreme Court in the
14 Pacifica case, right?
15 A Yes. It's actually the introductory portions of the
16 brief, yes.
17 Q Right. And this is what Exhibit 158 is, a downloaded
18 version of that?
19 A Yes.
20 Q And in that brief the ACLU sets forth the so-called seven
21 dirty words from the Carlin monologue, right?
22 A That's correct.
23 Q And, again, the ACLU is concerned that by virtue of
24 posting on line the brief that it filed in the United States
25 Supreme Court in the Pacifica case it may be subject to
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1 liability under the Communications Decency Act, right?
2 A Yes. Again, we are concerned that by having drawn
3 attention to that particular portion of the brief we may be
4 subject to the Communications Decency Act, yes.
5 Q By drawing attention you mean having referenced the
6 Carlin monologue in your Supreme Court brief?
7 A Well, we have as part of our Website a feature which
8 allows individuals who are -- who visit our Website to in
9 effect guess at the seven dirty words and then we take them,
10 after they submit their answers we take them to the Pacifica
11 decision. So, yes, we have gone about -- attempt -- we do
12 that for a purpose, the purpose is to illustrate that there
13 is a changing view of what is a filthy word or what is an
14 indecent word and that not everyone -- that everyone has a
15 different understanding of that. But, yes, we have chosen to
16 draw attention to those seven words in the decision as
17 opposed to other portions of the decision.
18 Q Now, the feature you're describing is in Exhibit 156 and
19 157 of the Defendants' Exhibit notebook, right?
20 A Give me one second, please... yes.
21 Q And you're not specifically concerned that those two
22 exhibits are in fact covered by the Communications Decency
23 Act, right?
24 A Not the two exhibits themselves.
25 Q Now, the ACLU has also posted on line an abridged version
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1 of the brief it filed in the U. S. Supreme Court in the Cohen
2 v. California case, correct?
3 A Yes.
4 Q Is that at Exhibit 160, Defense Exhibit?
5 A That's correct, yes.
6 Q Now, again, the ACLU is concerned that this brief it
7 filed in the Cohen case in the U. S. Supreme Court may be
8 covered by the Communications Decency Act, correct?
9 A Yes.
10 Q Now, the ACLU does not post or otherwise include in its
11 on-line materials sexually-explicit pictures, does it?
12 A Well, not at this point, but that's simply because what
13 we post relates to generally current controversies that are
14 involved in. So, for example, had this Website been up a few
15 years ago when the Mapplethorpe exhibit, which was a matter
16 that we worked on, was very much a live controversy we would
17 not have hesitated to post those images, which as I recall
18 were both were sexual nature and also some of them excretory.
19 Q You mean posting images of Robert Mapplethorpe's
20 pictures?
21 A Yes, yes, we would not hesitate to do that if it were
22 relevant to a current civil liberties controversy.
23 Q But just so I can get an answer to the question, the ACLU
24 does not post sexually-explicit pictures at this point,
25 correct?
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1 A Our Website has only been up for about six weeks, we
2 haven't put any up yet, but we certainly don't have any
3 policy or intention not to.
4 Q Okay. And you also haven't posted pictures of sexual
5 acts, correct, of couples engaged in sexual acts?
6 A No, but there are postings certainly to the AOL site
7 which are textual descriptions, yes.
8 Q But you haven't posted pictures of couples engaged in
9 sexual acts?
10 A No.
11 Q And you also haven't posted pictures of excretory
12 activities, correct?
13 A No, although some of the -- I should add that we have
14 links in our Website, also in AOL to some of the other
15 plaintiffs in this case who do have at least illustrations
16 which are sexual in nature.
17 Q And which plaintiffs are you referring to?
18 A Well, for example, Planned Parenthood of America has a
19 image on its Website which shows how to properly place a
20 condom on a penis, so that seems to be sexual in nature.
21 MR. BLACKWELL: Can I have one minute, your Honor?
22 JUDGE SLOVITER: Yes.
23 (Pause.)
24 BY MR. BLACKWELL:
25 Q You said your Website has only been up for six weeks?
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1 A Eight -- I'm sorry, if I think about it the date would be
2 seven or eight weeks since it's been publicly announced, yes.
3 Q How about the AOL site?
4 A Approximately a year.
5 Q Now, individuals can apply for membership to the ACLU
6 through the ACLU's Worldwide Website, right?
7 A Yes.
8 Q And they can pay on-line with a credit card, correct?
9 A Yes.
10 Q In the next few months the ACLU is going to offer
11 merchandise for sale through its on-line site, right?
12 A That's correct, yes.
13 Q Things like books, posters, pamphlets, bumper stickers,
14 things like that, right?
15 A That's pretty much the catalogue, yes.
16 Q And users will be able to buy the merchandise with a
17 credit card?
18 A Yes, they will.
19 Q And the ACLU leases space on a secure server to handle
20 these credit card transactions, right?
21 A Yes, we do.
22 Q And by secure we mean that the information, the credit
23 card information that's transmitted is encrypted in some way?
24 A That's correct, yes, although not everyone has a browser
25 which permits them to use a secure server, but about 70 or 80
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1 percent do.
2 Q Now, in your affidavit, Mr. Steinhardt -- do you have it
3 in front of you?
4 A If you'll give me a moment... okay.
5 Q Page 15, Paragraph 29.
6 A Okay.
7 Q You estimate there that assuming a level of traffic at
8 the ACLU Website equivalent to that of February, '96,
9 assuming that level of traffic at the site it would cost the
10 ACLU approximately $144,000 per month to verify credit card
11 information for visitors to the site, is that right?
12 A Well, I assumed it for that month since we don't have a
13 great deal of experience so far with the Website, I'm not
14 prepared to estimate the average monthly usage, so that this
15 estimate is based on what it would have cost in that month.
16 Q And the cost was 144,000, correct?
17 A That's correct.
18 Q Now, that figure assumes that the ACLU would be required
19 to verify credit card information for every visitor to the
20 Website, right?
21 A It does.
22 Q No matter what any particular visitor actually looks at
23 at the site, right?
24 A We don't -- when a visitor enters the site we don't
25 necessarily know what their intention is, which pages they're
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1 going to want to access.
2 Q But the figure does -- would include an individual who
3 just goes to the home page and goes no further, correct?
4 A That's correct.
5 Q That person would be included in your $144,000 figure,
6 correct?
7 A That's correct, but we have no idea -- no -- at the
8 outset when the person enters the home page whether or not
9 they intend to go to a different page.
10 Q Not every visitor to the ACLU site presumably accesses
11 the posting of the Supreme Court's decision in Pacifica,
12 right?
13 A No, although a large percentage in that initial month
14 did.
15 Q Now, you have participated in the creation of a Web page?
16 A I participated in the creation of the ACLU's Website,
17 yes.
18 Q And you're generally familiar with HTML programming?
19 A Generally.
20 Q And that type of programming is becoming increasingly
21 easy to do, isn't it, in your --
22 A In its simplest forms, yes.
23 Q Now, the ACLU plans to offer in the near future audio
24 transmissions through its Website, correct?
25 A Yes.
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1 Q And it plans to offer transmissions of things like
2 speeches and interviews, right?
3 A That's correct, yes.
4 Q And users will be able to hear actually the speech or
5 interview on their home computer, correct?
6 A Yes.
7 Q And the ACLU also plans to use audio capabilities for
8 their chat rooms?
9 A At some point, yes.
10 Q So, users will be able to through their home computers
11 hear themselves conversing in the chat room?
12 A At some point, yes.
13 Q And it also plans to offer in the near future video
14 transmissions through its Website, right?
15 A Well, it depends how you define near future. The three
16 things you have mentioned, the audio transmissions would be
17 first, and probably the video second, and ultimately the chat
18 rooms would feature some audio capability.
19 Q But you do plan to offer video transmissions at some
20 point through the Website?
21 A We're going to try to keep up with the technology as it
22 evolves, yes.
23 Q And you're going to offer transmissions of things like
24 speeches and interviews?
25 A Yes.
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1 Q I'm talking about video now?
2 A Yes.
3 Q And users will be able to see a video of a speech while
4 they're sitting at their home computer, right?
5 A Well, it's my understanding that at the moment the
6 technology hasn't quite gotten there in terms of a good image
7 that's available immediately. We experimented, for example,
8 on Martin Luther King Day with the possibility of showing a
9 portion of the "I Have a Dream" speech, but at some point,
10 yes, it will get there.
11 Q It will get there. And you expect to offer interactive
12 video features at some point as well, correct?
13 A We haven't discussed that, I don't know. I would -- I
14 don't know.
15 Q Thank you, Mr. Steinhardt.
16 MR. BLACKWELL: I have no further questions at this
17 point.
18 JUDGE SLOVITER: Thank you.
19 MR. PRESSER: One or two, your Honor.
20 REDIRECT EXAMINATION
21 BY MR. PRESSER:
22 Q Mr. Steinhardt, in response to the Government's inquiries
23 concerning whether or not we presently portray pictures on
24 our Websites or on America Online you discussed that we might
25 to the extent that we were involved in particular cases, has
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1 the American Civil Liberties Union recently been involved in
2 the Jake Baker case?
3 A Yes.
4 Q Can -- for the record --
5 JUDGE SLOVITER: What case?
6 MR. PRESSER: For the Jake Baker case, your Honor.
7 BY MR. PRESSER:
8 Q And, for the record, can you describe for the Court what
9 that case entailed?
10 A Jake Baker was a student at the University of Michigan
11 who was involved in two controversies, which -- arguably
12 which both -- both of which ultimately resulted in an
13 unsuccessful prosecution: He both posted stories, they were
14 clearly fictional works, to some of the alt.sex bulletin
15 boards and he also engaged in what appeared to many of us to
16 have been a -- some fantasy conversations, E-mail
17 conversations, private conversations with another individual
18 who described himself as Arthur Ganda or Uganda, it was
19 probably a pseudonym. Baker was prosecuted in Detroit on
20 charges essentially of conspiring to commit a kidnapping.
21 The ACLU did participate as amicus before the district court,
22 the district court dismissed the charges.
23 Q Can I ask you to look at the Government's Exhibit 164 and
24 would you identify that document for me, sir?
25 A Yes, this is a posting to one of our bulletin boards on
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1 America Online in which the posters who described themselves,
2 if you look at the from section, it says from the ACLU. That
3 is not the American Civil Liberties Union, that is another
4 group which stands for Always Causing Legal Unrest, which
5 regards itself as sort of a shadow of the ACLU, and we so far
6 have chosen not to enforce our trademark rights. The -- and
7 what they have done, or an individual who says that he or she
8 represents them, is to post one of Jake Baker's stories to
9 the ACLU bulletin board. It is -- we chose to -- and also in
10 the opening paragraph to criticize the ACLU, the American
11 Civil Liberties Union. We chose to allow those -- that
12 posting to stand.
13 Q And why did we do that?
14 A Because we believe that everyone has a right to free,
15 speech even if we disagree with them, and it certainly would
16 have made a very contrary point had we taken that off.
17 Q And what if any concerns as a result of this posting and
18 as a result of the passage of the law that is in question
19 here do we have about this posting and others of its ilk?
20 A Well, this posting is a very explicit discussion of not
21 only sexual activity, but what I would describe as a rape,
22 and it is -- it initially at least is what resulted in Jake
23 Baker being investigated by the U. S. Attorney's Office in
24 Detroit. So, this goes I think probably -- arguably goes
25 beyond indecency, but certainly could be regarded as -- by
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1 some as indecent.
2 Q Can I get you to look at Exhibits 162 and 163 of the
3 Government's submission?
4 A Okay.
5 Q Can you identify -- let's start with 162, can you
6 identify that document for the Court?
7 A Again, 162 is a posting to one of our bulletin boards,
8 the subject line there, "recently TOSsed," which the letters
9 T-O-S are capitalized, I believe is a reference to America
10 Online's terms of service. This was a section of the
11 bulletin board in which individuals discussed the America
12 Online terms of service and posted some of them, posted
13 material which either had been or they believe would have
14 been subject to the terms of service. In 162 it's a poem
15 entitled "Jesus Wore High Tops," again it contains explicit
16 sexual language and descriptions. And I believe you asked
17 about 163 as well?
18 Q 163, Mr. Steinhardt.
19 A This is a post -- again, a posting, the subject of which,
20 "Our words are words." I don't recall specifically which
21 topic area this was in, but I have a concern that the poem at
22 the bottom of the posting, which uses a number of words which
23 might be regarded as indecent, at least one of which I recall
24 is among the seven words in the Carlin case, that goes on to
25 Page 2, that those -- that the posting of this poem might be
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1 regarded as an act of indecency.
2 MR. PRESSER: I have no further questions, your
3 Honor.
4 JUDGE SLOVITER: Does the Government have any
5 redirect?
6 MR. BLACKWELL: No, your Honor.
7 JUDGE SLOVITER: You don't have any question, do
8 you, I mean, as somebody who has litigated in this field for
9 a long time, that these last exhibits would be considered
10 patently offensive to some parts of the community?
11 THE WITNESS: I... I'm having difficulty
12 understanding precisely what the statute is attempting to
13 reach, but I certainly know that many -- there are many
14 communities in which these postings would be regarded as
15 patently offensive, yes.
16 JUDGE SLOVITER: These particular ones?
17 THE WITNESS: Yes.
18 JUDGE SLOVITER: Now, leaving these aside, because I
19 guess my question was superseded by the last couple of
20 questions of Mr. Presser, I think it might be fair to say
21 that you are an expert in matters relating to free speech and
22 legal affairs relating to free speech in this country, do you
23 -- modesty not withstanding, would you accept that?
24 (Laughter.)
25 THE WITNESS: I'm certainly familiar, very familiar,
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1 yes, your Honor.
2 JUDGE SLOVITER: How realistic or maybe exaggerated
3 do you think your concern and the concern expressed
4 throughout is the concern that if you put Hamlet on line or
5 the Bible on line, which came up in some colloquy between the
6 Court and some witnesses for the plaintiff, that would
7 subject them, one, to being prosecuted and, two, to being
8 convicted?
9 THE WITNESS: Well, it's been our experience as an
10 organization that represents many people who have been the
11 victims of what we regard as censorship that community
12 standards do vary and that not infrequently the kind of
13 material that the Court and I might view as artistic or as
14 having merit --
15 JUDGE SLOVITER: Well, talk about yourself and the
16 Court will talk about itself.
17 THE WITNESS: I'm sorry. The kind of material that
18 you referenced, your Honor, has been the subject of efforts
19 of censorship, that's the kind of material that has been
20 removed from high school libraries, that is the kind of
21 material that has been removed from public libraries or there
22 have been attempts to remove it from public libraries. There
23 are many people out there who regard that kind of material as
24 indecent.
25 JUDGE SLOVITER: How much does it cost, I'm not sure
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1 you can give us an answer, how much does it cost for the ACLU
2 to engage in litigation, were it required to, either on its
3 own behalf or on behalf of somebody else to -- well, like
4 this Jake somebody case --
5 JUDGE BUCKWALTER: Baker.
6 JUDGE SLOVITER: -- Baker case.
7 THE WITNESS: Well, we were actually amicus in that
8 case, but we have been direct in other cases, including the
9 time for example of a staff attorney on such a case, a case
10 like this one where we have several staff attorneys work --
11 JUDGE SLOVITER: Well, this one you're a plaintiff
12 in.
13 THE WITNESS: Yes, but where we have represented
14 other parties we could -- including the time of staff
15 attorneys, the costs can be in the hundreds of thousands of
16 dollars.
17 JUDGE SLOVITER: In one case?
18 THE WITNESS: Yes, cases often go on for an extended
19 period of time. Our attorneys are underpaid compared perhaps
20 to the private bar, but they still -- those of us who are
21 employed in New York still make a fairly healthy salary.
22 JUDGE SLOVITER: Okay.
23 JUDGE BUCKWALTER: Well, I was just reading your
24 declaration and --
25 JUDGE SLOVITER: They don't think so.
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1 JUDGE BUCKWALTER: -- understanding that your
2 admissions -- what was that?
3 JUDGE SLOVITER: No, that was whether they make a
4 healthy salary.
5 (Laughter.)
6 MR. HANSEN: Counsel is not prepared to adopt that
7 part of the testimony.
8 (Laughter.)
9 JUDGE BUCKWALTER: No, I wanted the byplay on this
10 healthy salary to continue, but --
11 (Laughter.)
12 JUDGE BUCKWALTER: -- that's all right.
13 THE WITNESS: You can tell, your Honor, I'm an
14 administrator.
15 (Laughter.)
16 MR. HANSEN: Labor-management problem.
17 JUDGE SLOVITER: No, Judge Buckwalter was
18 questioning.
19 JUDGE BUCKWALTER: That's all right. I was reading
20 your declaration about the mission and the purpose of the
21 ACLU and that it's really contrary -- or that putting any of
22 these defenses into the use is contrary to your mission, I
23 believe you stated. And you went on to state that if you
24 were forced to bear the cost of restrictions on the use of
25 the Website by the use of -- by a debit account or an adult
184
1 access code you would shut down the Website, for how long?
2 THE WITNESS: Oh, I would --
3 JUDGE BUCKWALTER: I can't -- I mean, you would
4 certainly not envision that you couldn't come back and get
5 the Website up and running again --
6 THE WITNESS: If we were forced to go for example to
7 credit card verification of persons who use the Website we
8 simply could not bear the expense.
9 JUDGE BUCKWALTER: You really do? I mean, after a
10 period of time don't you think you could get the money needed
11 to do that sort of thing?
12 THE WITNESS: Well, we --
13 JUDGE BUCKWALTER: I mean, at first, sure, it's
14 going to be an expense, but once you get the program
15 together...
16 THE WITNESS: Well, there would be ongoing expenses.
17 JUDGE BUCKWALTER: You're certainly not going to --
18 want to close your Website entirely for that reason, would
19 you?
20 THE WITNESS: The problem, your Honor, is that there
21 would be ongoing expenses, both to verify new users who wish
22 to use the site and also to maintain a data base, a list --
23 JUDGE BUCKWALTER: I understand that.
24 THE WITNESS: -- of registrants. And our site has
25 proven to be so far relatively popular. Given the cost
185
1 estimates that we have received, the yearly -- it's not
2 possible to know precisely, but the yearly costs could be
3 from our perspective extraordinary, it would dwarf the costs
4 that -- of the site so far.
5 JUDGE BUCKWALTER: Extraordinary in what -- do you
6 have a percentage of your --
7 THE WITNESS: Well, as I tried to illustrate in the
8 example that appears in Paragraph 29 of my affidavit, in the
9 first month alone just the transactional cost would have been
10 $134,000, by which I mean the cost of verifying that each of
11 those -- minimum of 67,000 persons who entered our site in
12 fact had a valid credit card, and that does not include any
13 costs that would have been imposed on us by the banks to do
14 that kind of verification, which is something that we cannot
15 estimate at this point because we have been unable to locate
16 a bank which will regularly engage in the verification of
17 non-financial transactions.
18 JUDGE BUCKWALTER: I suppose if there is a market
19 for that type of thing wouldn't that -- a market for a bank
20 to devise a verification system or something like that, won't
21 the market forces more or less make that feasible in some
22 way?
23 THE WITNESS: Well, it --
24 JUDGE SLOVITER: Adam Smith thought.
25 JUDGE BUCKWALTER: Adam Smith thought, yes, right.
186
1 THE WITNESS: If they do -- they don't exist now and
2 I don't know what they would -- I don't know what they would
3 cost. I do know that they would cost something and I assume
4 they would probably be a flat fee rather than a percentage,
5 since there is nothing to take a percentage of, but I can't
6 speculate at this point, nor could those persons in the
7 credit card industry that I spoke with speculate about what
8 those costs would be, but they would be -- even assuming that
9 they were, say, a dollar, they would be more than we can bear
10 at this point, significantly more than our entire on-line
11 budget.
12 JUDGE BUCKWALTER: Okay. It just strikes me as
13 being maybe exaggerating the suggestion, close down your
14 Website forever and ever, I can't imagine in this world a
15 cyberspace that you would do that, that you wouldn't be able
16 to find a way to, you know, keep it going and incur -- and
17 some way make the money for those additional costs. But I
18 understand the analysis you did seem to suggest at least
19 initially it might be difficult for you to do it.
20 THE WITNESS: Well, we have limited funds, as do all
21 non-profits, and we have to make decisions on how to spend
22 those funds. We made a decision that the current expenditure
23 that we make on the Website and on the America Online site
24 delivers a sufficient amount of program for the amount of
25 expenditure. This kind of expenditure at least at this point
187
1 would not be justified, we would find other things --
2 JUDGE BUCKWALTER: At least initially it appears
3 that way, okay.
4 THE WITNESS: Yes.
5 JUDGE DALZELL: I have a few -- are you done? I'm
6 sorry.
7 JUDGE BUCKWALTER: Yes, I am, thank you.
8 JUDGE DALZELL: A few questions about your
9 materials. I noticed, I think it was on the Website, that
10 you had a request to your members to communicate with
11 Attorney General Reno about this law?
12 THE WITNESS: Yes.
13 JUDGE DALZELL: Do you know, does she have an E-mail
14 address?
15 (Laughter.)
16 THE WITNESS: I don't know if she has an E-mail
17 address, but I can't resist telling your Honor that we
18 actually at one point published a phone number which we
19 believed was just a general line going into the Justice
20 Department and at least on two occasions that I am aware of
21 Attorney General Reno herself answered those phone calls.
22 (Laughter.)
23 JUDGE DALZELL: Not bad. Well, what I'm getting as
24 is I noticed in Senator Leahy's supplemental declaration that
25 he has a Website, he has an E-mail address and he says he
188
1 conducts town meetings on the Internet.
2 THE WITNESS: Yes.
3 JUDGE DALZELL: Are you aware in the course of your
4 work as to whether other Representatives and Senators do the
5 same thing?
6 THE WITNESS: Yes. I couldn't give you an exact
7 percentage at this point, but a significant number of members
8 of Congress have E-mail addresses, some have Websites. When
9 we ask our members or users of these sites to communicate
10 with members of Congress we offer them several possibilities:
11 One, if their member has an E-mail address we provide them
12 with that E-mail address --
13 JUDGE DALZELL: That's what I was going to -- you
14 give them the E-mail address?
15 THE WITNESS: Yes. Or we -- or if they have a fax
16 number, they virtually all do, we would send them a fax.
17 JUDGE DALZELL: All right. So, as far as based on
18 your personal knowledge, Senator Leahy is not unique in that
19 respect?
20 THE WITNESS: I think it's far from unique, yes.
21 JUDGE DALZELL: All right. With respect to
22 Paragraph 36 of your declaration, do I understand correctly
23 that your Website provides abortifacient information?
24 THE WITNESS: It provides links to such information,
25 yes.
189
1 JUDGE DALZELL: About RU46 --
2 THE WITNESS: 46.
3 JUDGE DALZELL: -- and that sort of thing?
4 THE WITNESS: Yes.
5 JUDGE DALZELL: And is that a recent service since
6 February 1, 1996, or is that older?
7 THE WITNESS: Well, on the Website it is, but in our
8 normal course of business litigating in this area we
9 certainly have provided information to both clients, the
10 general public providers, and they have provided information
11 to us, discussing abortifacients and discussing abortion
12 services in general.
13 JUDGE DALZELL: So, this is a service that you give
14 on an ongoing basis via the Internet?
15 THE WITNESS: Not only by the Internet, but
16 including the Internet, yes.
17 JUDGE DALZELL: Okay. And, lastly, I don't know if
18 you've been here for our discussion about the PICS idea --
19 THE WITNESS: Yes. For --
20 JUDGE DALZELL: Assuming -- pardon me?
21 THE WITNESS: I'm sorry, your Honor, go ahead.
22 JUDGE DALZELL: Assuming a PICS rating system
23 becomes operational this summer, would the ACLU rate itself?
24 THE WITNESS: Well, as I understand the PICS
25 proposal or the PICS system, it's in effect an empty vessel
190
1 into which third-party rating systems can be put. And self-
2 rating is not required by PICS, as I understand it, having
3 read their literature. I don't think the ACLU would choose
4 to rate itself, but I am certain that there are others who
5 would.
6 JUDGE DALZELL: Well, the reason I ask is because,
7 as I understand the stipulation and the testimony, that the
8 default is that if you don't rate yourself you're blocked,
9 isn't that what you have all agreed to by stipulation? Well,
10 assume it is --
11 THE WITNESS: I have not read that particular
12 stipulation, so I don't know.
13 JUDGE DALZELL: -- therefore, you wouldn't be
14 accessed by -- if you don't rate yourself you won't be
15 accessed by those who block via PICS, correct?
16 THE WITNESS: I'm just not certain about the factual
17 predicate of that, I don't know the answer.
18 JUDGE DALZELL: But your point, I take it you're
19 high enough in the hierarchy that you can say with some
20 authority that you would not rate yourself?
21 THE WITNESS: Well, I had not understood that point
22 that -- that we would be blocked if we failed to rate, but it
23 is my understanding of PICS that there are -- that the user
24 can employ any number --
25 JUDGE DALZELL: But that's one of them --
191
1 THE WITNESS: Yes.
2 JUDGE DALZELL: -- is the default mode, that if you
3 don't rate, you're blocked, assume that's true.
4 THE WITNESS: Assuming that's true?
5 JUDGE DALZELL: Yeah.
6 THE WITNESS: I'm not high enough up to make that
7 decision on the spur of the moment.
8 (Laughter.)
9 JUDGE DALZELL: If you were, though, what would it
10 be?
11 THE WITNESS: I can't answer that, I would have to
12 think about it, it's the first time --
13 JUDGE DALZELL: And if you had to rate yourself what
14 would you rate yourself, using the motion picture rating
15 system that we've been using here?
16 THE WITNESS: Well, we think that we offer material
17 that's of important educational interest to minors, so I
18 suppose we would rate ourselves G, but I can imagine that
19 there are other third parties who would rate us X.
20 JUDGE DALZELL: NC-17.
21 THE WITNESS: NC-17.
22 JUDGE DALZELL: Okay, that's all I have.
23 JUDGE SLOVITER: I would imagine as a matter of
24 principle, couldn't one deduce from the history of the ACLU,
25 about which I don't know a lot, that you might object as a
192
1 matter of principle to rating yourselves, whether or not you
2 would rate yourselves G or anything else?
3 THE WITNESS: Yes, we would object to being forced
4 to rate ourselves, yes.
5 JUDGE SLOVITER: And we're going to find out more
6 about PICS, Mr. Coppolino promised us that he would educate
7 us on that in due course, I assume. So, we'll have to put
8 that together with this.
9 Do you have any more?
10 JUDGE BUCKWALTER: No, I don't.
11 JUDGE SLOVITER: Counsel?
12 MR. PRESSER: Nothing further, your Honor.
13 JUDGE SLOVITER: The Government?
14 MR. BLACKWELL: Nothing further, your Honor.
15 (Witness excused.)
16 JUDGE DALZELL: Do I understand, Mr. Coppolino, with
17 respect to the abortifacient provision, which I think is
18 1462(c)?
19 MR. COPPOLINO: Yes, your Honor, 18 USC, I believe.
20 JUDGE DALZELL: The Government -- that part at least
21 of the statute the Government is conceding is
22 unconstitutional?
23 MR. COPPOLINO: That's what I stated at the TRO
24 hearing and --
25 JUDGE DALZELL: You did?
193
1 MR. COPPOLINO: -- Attorney General Reno has so
2 stated in a letter I believe to both Speaker Gingrich and
3 Vice President Gore, as President of the Senate. I believe
4 those are in the record, if not I can provide them to the
5 Court.
6 JUDGE SLOVITER: Yes, but --
7 JUDGE DALZELL: Okay.
8 JUDGE SLOVITER: -- we just wanted to --
9 JUDGE DALZELL: I just want to confirm that for
10 purposes of the preliminary injunction -- I know it was for
11 the TRO, but for purposes of this hearing that that is not an
12 issue, because the Government concedes the point.
13 MR. COPPOLINO: We don't believe it is an issue
14 because -- we have stated that the provision in the Justice
15 Department's view is unconstitutional. We also indicated,
16 however, at the TRO stage that because the Attorney General
17 has indicated that there would be no prosecutions there could
18 be no demonstration of irreparable harm, and that would be
19 our position as well at the PI stage and, therefore, no need
20 for an injunction on the statute at this stage.
21 JUDGE DALZELL: All right. Anything else?
22 JUDGE SLOVITER: I guess not. We will then adjourn,
23 scheduled at the moment --
24 JUDGE DALZELL: Well, we'll recess --
25 JUDGE SLOVITER: -- we'll recess --
194
1 JUDGE DALZELL: -- until the 12th, but I believe
2 counsel would like to see me -- unless there is something
3 else from the plaintiffs now?
4 JUDGE SLOVITER: Thank you, Mr. Steinhardt, you
5 don't have to stay there.
6 MR. ENNIS: No, your Honors, let me simply state
7 that the plaintiffs do not rest because we are going to be
8 calling Mr. Vaysa (ph.) during the time allotted for the
9 Government's case, and there may be a couple of other
10 housekeeping details to take care of then, but that would
11 conclude our live witnesses.
12 JUDGE DALZELL: All right, very good. So, why don't
13 we meet in 15 minutes in the robing room for a status
14 conference, counsel?
15 ALL COUNSEL: Thank you, your Honor.
16 JUDGE DALZELL: And we'll see you on the 12th at
17 9:30 for the Government's case.
18 JUDGE SLOVITER: Lawyers do not rest, period.
19 (Laughter.)
20 (Court adjourned at 2:54 o'clock p.m.)
21 * * *
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