Conclusion of hearing
April 15, 1996
12 JUDGE DALZELL: Mr. Coppolino?
13 JUDGE SLOVITER: Oh, all right, Mr. Coppolino, Judge
14 Dalzell has invited you up.
15 MR. COPPOLINO: I'm sorry?
16 JUDGE DALZELL: Didn't you want to -- did you have
17 anything else for us or --
18 MR. COPPOLINO: I think the only thing that's left
19 to do today before the hearing concludes is for the
20 Government to formally move into evidence its exhibits.
21 I think this is going to be broken down in two
22 categories because I think plaintiffs have objections to the
23 exhibits or some of the exhibits.
24 JUDGE SLOVITER: Yes.
25 MR. COPPOLINO: I think that they can be safely
99
1 categorized as two main areas: one is the Howard Schmidt
2 exhibits of the sexually explicit material. They may have
3 objections to some or all of those and I think that that's
4 one argument, if you will.
5 In addition, we have extracted from the various
6 notebooks we have submitted to the Court over the last two
7 hearing days other exhibits which we would formally move into
8 evidence and there would be, I believe, some evidentiary
9 objections with respect to some of those.
10 With respect to that grouping I would ask Ms.
11 Russotto to present those exhibits and to respond to any
12 objections that they may have and then deal separately with
13 any objections to the Howard Schmidt exhibits, or we could
14 reverse the order, if it please the Court.
15 The only other point I would make preliminarily is I
16 don't know if the Court has those notebooks and if you wanted
17 to break and get them or whatnot, but that's really all that
18 has to be done before the hearing can conclude.
19 JUDGE SLOVITER: Do plaintiffs know now which you're
20 going to offer into evidence so that you have locked horns
21 already on those?
22 MR. COPPOLINO: Yes, I believe so. So we could
23 start with the non Howard Schmidt exhibits, if you'd like.
24 JUDGE SLOVITER: I didn't bring any exhibits down at
25 all.
100
1 JUDGE DALZELL: Oh, I've got the books here.
2 MR. COPPOLINO: Or we could start -- whichever.
3 JUDGE SLOVITER: Well, why don't we just do it
4 before lunch? Is that all right with you, Stewart?
5 JUDGE DALZELL: Yes.
6 (Discussion off the record.)
7 MR. BARON: Excuse me, your Honor, could Dr. Olsen
8 be excused?
9 JUDGE SLOVITER: Oh, I think so, unless he wants to
10 rule on the exhibits.
11 JUDGE DALZELL: Thank you very much, Dr. Olsen.
12 JUDGE SLOVITER: Thank you.
13 JUDGE DALZELL: Have a good trip back.
14 JUDGE SLOVITER: We want to ask counsel a question
15 as to what difference it's going to make for the purposes of
16 our decisionmaking? In other words, if the Government has
17 proffered the exhibits and we were to rule that some were not
18 relevant or appropriate, they would still have to go into the
19 record as proffered. And we're not dealing with a jury, so
20 why don't we let it -- why would the plaintiffs want to
21 object to letting anything in for this purpose?
22 MS. HEINS: Thank you, your Honor, Marjorie Heins
23 for the ACLU plaintiffs.
24 JUDGE SLOVITER: Can you be heard on the -- can she
25 be heard on the tape?
101
1 JUDGE DALZELL: Yes.
2 JUDGE SLOVITER: Okay, go ahead.
3 MS. HEINS: A few -- well, to start with, the Court
4 should have our objections to the exhibits that we thought
5 the Government was proffering at a time before they narrowed
6 the field.
7 The Government has not even moved the introduction
8 of some of those which are clearly hearsay or otherwise
9 inappropriate, so as to those --
10 JUDGE SLOVITER: Okay, well, they're now moving,
11 yeah.
12 MS. HEINS: You may have them but they're -- we are
13 agreed they are not part of any record to be considered in
14 connection with the preliminary injunction motion.
15 As to the ones we still dispute, our main objections
16 fall into two categories: one is hearsay and that would
17 include, for example, the Meese Commission report. It's
18 offered for the truth of the assertions in there. We
19 vigorously dispute the truth of those assertions.
20 JUDGE SLOVITER: But if you want to write your
21 objections, unless you wanted to stand up and say that and we
22 have your objections and we have the -- I don't see how --
23 you agree that nothing that we could do would mean that these
24 exhibits don't get into the record, one way or the other.
25 JUDGE DALZELL: They're not going to be purged from
102
1 the record.
2 MS. HEINS: Well, they may be in the record but we
3 would like an opportunity clearly to state our hearsay
4 objections to some of them and, by the way, as to some of
5 them, the Government does not dispute that they are not
6 admissible for the truth of any assertions there. And that
7 would be the other category of things like the Internet
8 Yellow Pages. I think we're agreed that as to those, they
9 are relevant only for purposes of showing the Court that
10 there are books out there that purport to list sex.
11 JUDGE DALZELL: But that's exactly the point, Ms.
12 Heins, is that the Court surely knows that the statements in
13 the Meese report are hearsay, okay? I mean we really know
14 what that is, we know it when we see it.
15 (Laughter.)
16 JUDGE DALZELL: And that being the case, for the
17 life of me I just don't understand what your concern is. We
18 know to go through this there are hundreds of exhibits here.
19 Do you really want us to go through them one by one now?
20 MS. HEINS: No.
21 JUDGE DALZELL: As though there were a jury here?
22 MS. HEINS: No, Judge Dalzell. And in fact the
23 areas of dispute are fairly small at this point. As long as
24 we are all agreed that the Meese Commission is hearsay and
25 none of the assertions in it can be considered for their
103
1 truth, then the fact that it is physically a piece of paper
2 in your chambers is irrelevant. But I think that agreement
3 has to be quite clear.
4 JUDGE SLOVITER: In the record.
5 JUDGE DALZELL: It's in the record, it's in the
6 record.
7 JUDGE SLOVITER: And it would be in the record one
8 way or the other. Remember, this is a preliminary injunction
9 hearing and for purposes of the preliminary injunction
10 hearing we just find it difficult to understand why we would
11 have to move, you know, strike any of this.
12 MS. HEINS: Well, it may be in the record but--
13 JUDGE SLOVITER: But we could accept it as subject
14 to your objections.
15 JUDGE BUCKWALTER: There's a lot of exhibits,
16 there's a lot of exhibits you object to here.
17 JUDGE SLOVITER: But it does seem to me that from an
18 appellate court standpoint, I always want to see what was
19 proffered and it might be error not to have accepted some
20 evidence or not, so it's got to be there.
21 JUDGE BUCKWALTER: Yeah, it seems to me you could
22 continue to argue in your briefs why we should not consider
23 certain exhibits in arriving at our decision, but all that we
24 think is that the exhibits ought to be part of the record in
25 any event for review by another court.
104
1 MS. HEINS: Well, they may be part of the record but
2 I do think we are entitled to a ruling or an agreement that
3 certain of them either are hearsay and therefore not to be
4 considered for any assertions that are in them or, in the
5 case of the Internet Yellow Pages, we are objecting simply
6 because, number one, the selected excerpts that the
7 Government has put in are obsolete, there is a new edition
8 and, number two, they have been very selective. And we would
9 simply propose --
10 JUDGE SLOVITER: We are confident that you will so
11 argue in your post trial. I think that what we're going to
12 do, we don't mean to deprive any of you of your 15 minutes in
13 the sun, you've had more than that, we will do as we have
14 done with all of the witnesses objections, we will accept the
15 exhibits for what they are worth. You can argue that they
16 are worth nothing or they can argue that they are worth a
17 great deal, but we see no reason after this lengthy
18 preliminary injunction hearing with very lengthy exhibits and
19 having seen the displays and everything else, we see no
20 reason to go through seriatim these exhibits at this time.
21 MS. HEINS: Well, again, just to make the record
22 clear--
23 JUDGE SLOVITER: Yes.
24 MS. HEINS: -- we have a very small number of
25 disputes, we are not suggesting --
105
1 JUDGE SLOVITER: All right.
2 MS. HEINS: -- that the Court engage in any such
3 burdensome task, as to the Internet Yellow Pages, as you can
4 see, we have gone to the effort of buying the Court the
5 entire Internet Yellow Pages. We simply think it is improper
6 for the Government to proffer obsolete copies of certain
7 selected portions. And they're heavy, we didn't bring one
8 for each. If I may just --
9 JUDGE DALZELL: Yes, Mr. Coppolino?
10 MR. COPPOLINO: Well, she's made her argument three
11 times and you've responded three times and I think the points
12 are clear on both sides now.
13 MS. HEINS: Well, if I may --
14 JUDGE SLOVITER: Well, let her make it for the
15 record.
16 MS. HEINS: -- please finish my sentence.
17 JUDGE SLOVITER: Yes, go ahead. I mean everybody
18 has been really very cooperative up till now so we're going
19 to continue in that vein. Continue.
20 MS. HEINS: I will try to be extremely brief.
21 JUDGE SLOVITER: Okay.
22 MS. HEINS: We simply think it is more appropriate
23 for the Court to be aware that there are many books that call
24 themselves the Internet Yellow Pages, we have brought two.
25 We will offer them. We hope that the Court could share one
106
1 as opposed to taking all three.
2 JUDGE SLOVITER: Oh, yes, we're in the same building
3 purposefully, we are in the same building.
4 MS. HEINS: I think that's more appropriate, these
5 are the current editions, again not offered for the truth of
6 the assertions in them.
7 JUDGE DALZELL: Are those the volumes right in front
8 of you there?
9 MS. HEINS: These are two different books purporting
10 to call themselves the Internet Yellow Pages.
11 JUDGE DALZELL: It looks to me like the Rules of
12 Civil Procedure on top.
13 MS. HEINS: That you don't get.
14 JUDGE DALZELL: Okay.
15 (Laughter.)
16 MS. HEINS: We also, another exhibit they have
17 offered--
18 JUDGE SLOVITER: Having helped to draft them, I can
19 assure that they do not fall within the --
20 (Laughter.)
21 MS. KAPPLER: Your Honor, if I may make a
22 suggestion?
23 JUDGE SLOVITER: No, let her finish.
24 MS. KAPPLER: I'm sorry.
25 MS. HEINS: Another exhibit they have proffered is a
107
1 selected portion of a book called Net.Sex. I could only find
2 one of these in four New York book stores that I tried
3 yesterday, but again we think the entire book should be
4 considered by the Court and not just the section that the
5 Justice Department has --
6 JUDGE SLOVITER: Okay, now, wait a minute. Mr. --
7 are you finished?
8 MS. HEINS: -- proffered and since I only have one,
9 what I would suggest in this case is to give us an
10 opportunity to go back to the office, Xerox it, the entire
11 thing -- it's short unlike these -- and submit it to the
12 Court afterwards.
13 JUDGE SLOVITER: Now, what we have right now is we
14 have the Government having gotten up and offered, proffered
15 into evidence, asked us to admit the Government's exhibits
16 into evidence. We have your objections. If you want to
17 proffer other things in purview of rebuttal, fine, but hold
18 on, let's deal with what is in front of us at the moment.
19 Do you have anything that you want to add as
20 objections to what the Government has proffered?
21 MS. KAPPLER: Yes, your Honor, and two points I'd
22 like to make. This is Ann Kappler for the ALA plaintiffs.
23 First, just a suggestion for the Court's benefit, I
24 think it might be helpful if we submitted a narrowly tailored
25 essentially restatement of our objections because there are
108
1 now different documents that are being submitted. They have
2 one piece of paper that just has the ones on which we object
3 to.
4 JUDGE SLOVITER: We absolutely will allow the
5 plaintiffs, having cut you off somewhat in oral argument, we
6 will certainly allow you to submit written objections to any
7 of the exhibits proffered by the Government.
8 MS. KAPPLER: Thank you, your Honor. I have one--
9 JUDGE SLOVITER: Okay? So that the record will be
10 clear. Yes?
11 MS. KAPPLER: Excuse me, I have one second point and
12 that is this morning we were handed a new document which I
13 think is of a very different ilk and that is a second
14 declaration of Howard Schmidt.
15 JUDGE SLOVITER: Now that's a separate thing. Let's
16 hold that out. We don't know, at the moment we're talking
17 about exhibits.
18 MS. KAPPLER: Well, they are submitting this as an
19 exhibit, I mean that's how they denominate it, as an exhibit.
20 JUDGE SLOVITER: Well, we are dealing at the moment
21 not with declarations, we're going to deal with declaration
22 later.
23 JUDGE DALZELL: That's a separate issue, surely.
24 JUDGE SLOVITER: Yes. So we agree that that's a
25 separate issue.
109
1 MS. HEINS: I have one other point, if I may.
2 JUDGE SLOVITER: Yes.
3 MS. HEINS: With respect to some of the exhibits
4 that have been proffered and these are in fact exhibits that
5 in Mr. Schmidt's original affidavit he attempted to
6 authenticate.
7 JUDGE SLOVITER: Well, Mr. Schmidt is a -- is a
8 separate -- Mr. Schmidt's documents I think are a separate
9 category. Right now we're dealing with all of the other
10 exhibits separate from Mr. Schmidt.
11 MS. HEINS: The reason I raised it now is these were
12 exhibits that were not in Mr. Coppolino's book, but these
13 were exhibits that were in the original three sets of
14 Government cross-examination exhibits. We were not given
15 notice that these were exhibits Mr. Schmidt had downloaded
16 and printed out, they were not produced to us at the
17 deposition as part of the materials that the Government was
18 telling us would be in what turned out to be the Coppolino
19 book. Instead they were cross-examination exhibits with no
20 indication of where they came from or who downloaded them.
21 Schmidt in his declaration in Paragraph 39 purported
22 to authenticate them in very vague terms. We would object to
23 their going in. These again are cross-examination exhibits
24 not in the Schmidt book, we would object to their going in,
25 they're not authenticated.
110
1 JUDGE DALZELL: Mr. Coppolino?
2 MR. COPPOLINO: First of all, can we change the name
3 of the book, your Honor?
4 (Laughter.)
5 MR. COPPOLINO: Your Honor, let me just step back to
6 indicate that -- a couple of things. First of all, I have a
7 pleading type document here which lists all of the exhibits
8 that we would offer into evidence from all of the materials
9 we have submitted over the past two weeks except for
10 declarations and I would -- that would give the Court and it
11 would give, as to the plaintiffs, we'd give you a full list.
12 Now, as I understand what the Court's been
13 indicating then the weight of these exhibits, whatever
14 evidentiary objections there are to them or our response to
15 them would be handled in the briefing process.
16 In other words, if they consider a particular
17 exhibit to be hearsay we could identify our response to that
18 in the brief. We're prepared to argue every one of their
19 objections right now, the hearsay objections, whatever they
20 might be, or any other concern.
21 If the Court prefers, however, we could simply deal
22 with that in the -- in the brief. If they think it's
23 hearsay, if we think we've got a hearsay objection we could
24 identify it.
25 JUDGE DALZELL: One second.
111
1 (Discussion off the record.)
2 JUDGE SLOVITER: I think what the Court would like
3 to do is that you -- all of these arguments can be made in
4 connection with your post-trial submission, and you can now
5 or later submit what you want, you can respond to it in
6 writing. We will have an opportunity to actually see the
7 documents and see the -- you can then proffer your rebuttal
8 exhibits if you want. And on the day that your -- well, and
9 in your writings, when you submit it with your post-trial
10 submissions, you can include this separately or encompassed
11 within it, and the Court will rule. Okay?
12 MR. COPPOLINO: That sounds fine, your Honor. We
13 would also --
14 JUDGE SLOVITER: Is that all right?
15 JUDGE DALZELL: As to everything.
16 MR. COPPOLINO: If it would assist the Court, we
17 could also do just a separate submission on evidentiary --
18 JUDGE DALZELL: You could.
19 JUDGE SLOVITER: You could, I think that would make
20 sense.
21 JUDGE BUCKWALTER: That makes a lot of sense.
22 JUDGE SLOVITER: That would clarify it.
23 JUDGE DALZELL: And do that at the time of the post-
24 trial briefing.
25 MR. COPPOLINO: Very well.
112
1 JUDGE DALZELL: That makes a lot of sense, Mr.
2 Coppolino.
3 MR. COPPOLINO: Well, I won't read the document, but
4 I will -- we will submit it and file it. The plaintiffs have
5 it, it lists all of the things we would proffer, so rather
6 than reading it, it's here in writing. I would indicate it
7 does include the Schmidt exhibits, as well as this additional
8 item that Ms. Kappler referred to -- did the Court want to
9 deal with that in the same manner or did it want to hear --
10 JUDGE DALZELL: Well, here's what I think you ought
11 to do is I would like you all, if possible, I'm sure my
12 colleagues will agree, in the next day or two to sit down and
13 try to narrow the areas of dispute, okay? Bearing in mind
14 what we have said to you not once, not twice, but many times
15 throughout the five days of hearing here, what we're doing,
16 and to take an intensely practical approach. But if each
17 side believes that there is a narrow universe of documents as
18 to which admissibility is a truly significant issue and you
19 can't agree on it then at the time of the post-trial
20 submissions you can identify those exhibits for us, all
21 right? Does that make sense?
22 MR. COPPOLINO: I think it does and I --
23 JUDGE DALZELL: Is that all right with you,
24 Colleagues?
25 JUDGE SLOVITER: Yes, yes --
113
1 JUDGE BUCKWALTER: No, that's fine.
2 JUDGE SLOVITER: -- fine.
3 MR. COPPOLINO: Yes, it does make sense and we have
4 I think tried to do that... we have narrowed it down to about
5 a dozen already.
6 JUDGE BUCKWALTER: Maybe you can further narrow it
7 down.
8 JUDGE SLOVITER: Now, what about the Schmidt
9 declaration?
10 JUDGE DALZELL: There's a new declaration?
11 MS. KAPPLER: Yes, your Honor.
12 MR. COPPOLINO: No. Could I explain that?
13 JUDGE DALZELL: Yeah, let's hear Mr. Coppolino
14 first.
15 MR. COPPOLINO: We were going to of course proffer
16 the Schmidt -- all of the Schmidt exhibits, the one
17 additional item which I was going to offer to the Court was
18 in the course of Mr. Schmidt's cross-examination and
19 questioning by the Court and redirect by me he went into an
20 issue which was not present in his direct testimony
21 concerning a key-word search, I think it was women pictures
22 with Surfwatch running. The issue came up as to whether or
23 not Surfwatch would block sexually-explicit sites, and we
24 described the tests he undertook by identifying specific
25 sites. Then under questioning he went into an issue of would
114
1 sites be identified through a key-word search and he
2 specifically talked about women pictures. He also indicated
3 that he had downloaded that particular result. What I was
4 going to offer to the Court was that specific download with
5 the declaration, which only authenticates it and says that I
6 did it and this is what I did, and that's all that this is.
7 Now, I realize it is a new exhibit, it is --
8 JUDGE SLOVITER: It is very problematic also.
9 MR. COPPOLINO: It is not a part of the direct
10 testimony, because that was not part of his direct testimony,
11 the door onto this subject was opened if you will on the
12 cross-examination. Now, if the Court considers it
13 prejudicial we don't have to offer it. He referred to it and
14 I thought that the Court might want to see it.
15 JUDGE SLOVITER: Do you object?
16 MS. KAPPLER: Yes, your Honor.
17 JUDGE SLOVITER: Okay, we sustain the objection. I
18 do --
19 MR. COPPOLINO: That only leaves the rest of the
20 Schmidt notebook then to talk about, if there is anything to
21 talk about.
22 JUDGE SLOVITER: Well, you're going to do the same
23 thing with the rest of the Schmidt notebook as you do with
24 all of the other exhibits and they will father objections,
25 and they may follow to all of the material, they may want to
115
1 object to part of it --
2 JUDGE DALZELL: But first you're going to meet and
3 try to resolve as much as possible.
4 MS. HEINS: Would it be appropriate at this point to
5 proffer the Internet yellow pages?
6 JUDGE SLOVITER: Yeah, I think you should proffer
7 them, except there's no wit -- is there anybody who --
8 JUDGE DALZELL: Well, there could be a stipulation
9 though.
10 JUDGE SLOVITER: Will you stipulate to the Internet
11 yellow pages?
12 MR. COPPOLINO: We have no objection if they want to
13 submit the whole volume.
14 JUDGE SLOVITER: Okay.
15 JUDGE DALZELL: Admitted.
16 JUDGE SLOVITER: And you can take it back --
17 MR. COPPOLINO: I'd like to know what volume it is.
18 JUDGE SLOVITER: -- and bring it back. I don't know
19 what --
20 MS. HEINS: I'd rather not have to take it back --
21 (Laughter.)
22 MS. HEINS: -- so I'd rather give it to you now.
23 And let me just point out that one of --
24 JUDGE DALZELL: Take it up to Room 2609.
25 MS. HEINS: -- one of them has a CD-Rom, which
116
1 purports to be a Web Browser; I haven't tried it, but --
2 JUDGE SLOVITER: I don't know how one would do --
3 use it, so --
4 MS. HEINS: -- it comes --
5 JUDGE SLOVITER: -- this is not -- well, okay.
6 Is that it? Okay. I want to thank -- yes, you're
7 going to all see Judge Dalzell about the scheduling in 15
8 minutes, but -- Mr. Ennis?
9 MR. ENNIS: I believe that's the close of the
10 Government's case, the Government has no further witnesses?
11 MR. COPPOLINO: The Government rests.
12 MR. ENNIS: We appreciate that the Court gave us the
13 opportunity to call rebuttal witnesses for the plaintiffs,
14 but as the Court has been informed we have waived calling any
15 live rebuttal witnesses. The only thing left that I am aware
16 of for plaintiffs is we are -- we have filed these
17 supplemental declarations of the non-trial affiants and that
18 has been set aside for separate briefing. I simply wanted to
19 remind the Court that we will be relying on those
20 supplemental declarations as well.
21 MR. COPPOLINO: We are aware that they filed it and
22 Judge Dalzell has allowed us an opportunity to object to that
23 and he has given us dates for that, and that's what we'll be
24 doing.
25 JUDGE SLOVITER: I do want to thank -- I think on
117
1 behalf of the entire Court, we do want to thank counsel for
2 the expeditious manner in which they have handled this very
3 lengthy, very long, very complex technologically and
4 otherwise record. I think that the cooperation is a credit
5 to you as members of the profession and the Court is very
6 grateful to all of you, and we will try to reciprocate.
7 JUDGE DALZELL: And I'll see you in 15 minutes.
8 (Court adjourned at 12:20 o'clock p.m.)
9 * * *
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