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ACLU Trial Update 4/12/96

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*  1st Government Witness Acknowledges Difficulty in Finding 
   Sexually Explicit Material Online

*  2nd Government Witness Returns Monday to Conclude Testimony 

*  Plaintiffs have option to rebut government case Monday

Friday, April 12, 1996

PHILADELPHIA -- Testifying for the government today, Special Agent 
Howard A. Schmidt acknowledged, in answer to skeptical questioning 
by a three-judge panel, that it is "highly unlikely" for anyone to 
come across sexually explicit sites on the Internet by accident.

As the first witness for the government, Agent Schmidt began the 
morning with a live Internet tour and demonstration of a search 
for so-called indecency. The demonstration stopped short of 
actually displaying any of the images, but traced for the court 
the route by which Schmidt arrived at various web sites.  

Schmidt acknowledged -- under cross-examination -- that majority 
of the sites he found would have been off limits had he been 
running a software program such as SurfWatch, that blocks access 
to Internet sites considered inappropriate for children.

Marjorie Heins, who conducted cross-examination for the ACLU, 
noted that Agent Schmidt's expertise -- and the government's case 
-- lies in focusing on a very narrow category of sexual material, 
much of which is already covered by existing obscenity law.

"In today's testimony, the government attempted to divert the 
court's attention from the serious concerns of our plaintiffs by 
focusing on material that is highly inflammatory and largely 
irrelevant to this case," Heins said.

The consolidated cases of ACLU v. Reno and ALA v. DOJ challenge 
provisions of the Communications Decency Act that criminalize 
making available to minors "indecent" or "patently offensive" 

Under questioning by the judges, Agent Schmidt was asked how he 
would enforce the censorship law when confronted with a safe-sex 
information web-site that displayed an image illustrating how to 
put a condom on an erect penis. 

Agent Schmidt said that since the context was "educational, not 
purely for pleasure purposes," he would not censor the site but 
advise the publishers to post warnings.

His answer was different when asked how he would rate an online 
copy of the controversial Vanity Fair magazine cover featuring the 
actress Demi Moore, nearly naked and eight months pregnant.  

In that case, Schmidt said, the Communications Decency Act would 
apply because the image was "for fun."  He also said, in answer to 
a query from Judge Stuart Dalzell, that the community standard as 
to the offensive of the image might be different for Minnesota 
than it would for New York.  

"It is ironic that, according to the government, an explicit 
online image of an erect penis in an educational context would be 
acceptable, whereas Vanity Fair, a constitutionally protected 
publication containing a much less explicit image, would be 
censored," Heins said.

Following Agent Schmidt's testimony, the final plaintiff witness, 
Dr. Albert Vezza, told the judges about PICS (Platform for 
Internet Content Selection), a new rating system designed to allow 
parents to control children's access to the Internet without 

Dr. Vezza is associate director of the MIT Laboratory for Computer 
Sciences and has chief responsibility for the PICS project.  He 
was unable to testify earlier in the case due to scheduling 

Dr. Vezza said he expected that wide industry acceptance of the 
PICS standard would enable any number of "third-party" 
organizations such as the PTA, the Christian Coalition or the Boy 
Scouts of America to rate content for Internet users. 

The second and final government witness, Dr. Dan Olsen, a 
professor of computer science at Brigham Young University, took 
the stand in the mid-afternoon.  

Dr. Olsen acknowledged that the PICS standard would allow parents 
to control their children's Internet viewing according to their 
own values or via a rating system devised by a trusted 

He also acknowledged that a system he had conceived in which 
Internet sites must be labelled by the content originator, would 
not allow for such an independent rating scheme. 

While plaintiff lawyers completed cross-examination of Dr. Olsen 
today, he will return on Monday for redirect by government lawyers 
and to answer any questions the judges may have.  

It is now anticipated that Monday, April 15, will be the last day 
of trial in ACLU v Reno.  Plaintiff lawyers will have the 
opportunity on Monday (instead of April 26) to call witnesses to 
rebut the governments's testimony. However, the ACLU and ALA 
coalitions did not indicate which witnesses, if any they would 

Because the April 26 rebuttal day is no longer necessary, the next 
date in court is set for June 3, when the three-judge panel will 
hear oral arguments from both plaintiffs and defendants.  

The judges are expected to issue a ruling some time in the weeks 
following. Under expedited provisions, any appeal on rulings 
regarding the new censorship law will be made directly to the U.S. 
Supreme Court.

Lawyers for the ACLU appearing before the judges are Christopher 
Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal 
director of the ACLU of Pennsylvania.


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