From telstar@wired.comSun May 12 13:24:07 1996
Date: Sun, 12 May 1996 11:34:07 -0800From: telstar@wired.com
To: telstar@wired.com
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, your 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."