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CDA Trial Transcript 4/1/96 (afternoon)

   	THE COURT CLERK:  Court is now in session.  Please be seated.
   	JUDGE DALZELL:  Proceed, Ms. Russotto.

   Q   Good afternoon again, Mr. Rheingold.
   	MS. RUSSOTTO:  Your Honor, there is one further matter with 
   regard to Mr. Rheingold's declaration that we would like to point 
   out.  We do have a hearsay objection to Paragraph 10, in which Mr. 
   Rheingold testifies about some matters that other people told him 
   about, we have obviously no opportunity to cross-examine anybody 
   about that.
   	JUDGE DALZELL:  Yeah, I would say that's hearsay.
   	MS. RUSSOTTO:  Very well.
   	MR. HANSEN:  If I might be heard on that, your Honor?
   	MR. HANSEN:  We have proffered Mr. Rheingold as an expert, I 
   think he would testify that it is the kind of information he 
   relied upon in writing his book --
   	JUDGE DALZELL:  But what she's referring to is, "I have been 
   told of at least one such space that as a result of the Act" --
   	MR. HANSEN:  That's right.
   	JUDGE DALZELL:  -- it seems to me that's textbook hearsay.
   	MR. HANSEN:  He was told about that in the context of an 
   affidavit that was submitted to him and which has been submitted 
   to the Government.  The Government has seen the evidentiary 
   foundation for that particular paragraph and they're free to 
   cross-examine him on further detail if they want, but I think as 
   an expert he's entitled to rely upon that as the kind of 
   information he has gathered in writing his book and the kind of 
   information he uses in forming expert opinions.
   	JUDGE DALZELL:  All right, for what it's worth we'll let it 
   in -- I mean, your point is well-taken.
   	MS. RUSSOTTO:  Thank you, your Honor.

   Q   Mr. Rheingold, would you please tell the Court what a virtual 
   community is?
   A   A virtual community is a group of people who meet through on-
   line discussions and through those on-line discussions form 
   individual relationships and often, but not always, continue those 
   relationships into the face-to-face world.  I would make a 
   distinction between communities of interest, let's say attorneys 
   or engineers who exchange information, and communities that 
   consist of many different kinds of people who have general 
   discussions from which relationships which extend beyond the 
   technical specifics of their information exchanges.
   Q   And virtual communities would be the latter, correct?
   A   Yes, although they can form from the former.
   Q   And what virtual communities have you participated in 
   A   I have participated for over ten years in a virtual community 
   known as the WEL, before that in --
   	THE WITNESS:  The WEL is an acronym for the whole earth 
   electronic link, one of the oldest of the communities that allow 
   low-cost access to individuals who are not particularly 
   specialists.  At the time that the WEL was formed you really had 
   to be a government researcher to have access to the ArpaNet (ph.).  
   So, this was really a pioneering experiment that continues to this 

   Q   In addition to the WEL what other virtual communities have 
   you --
   A   Before the WEL I explored a number of bulletin-board systems, 
   particularly one known as the Skateboard that I participated in 
   for some time before the WEL.  More recently I have become 
   involved in creating a new virtual community known as the River, 
   which is one that is a cooperative corporation owned by the 
   members of the community.  I have participated in virtual 
   communities in Japan, two of them in particular -- three of them 
   in particular, Twix (ph.) and Aegis (ph.) and Koara (ph.), which I 
   describe in my book; a community in France known as Calvidose 
   (ph.); a community in England known as Kicks.
   Q   All right.
   A   In addition to those there are mailing lists, MUD's and 
   MUSE's and UseNet news groups.
   	JUDGE DALZELL:  All right, I'll take the bait, what's a MUD?
   	MS. RUSSOTTO:  I was going to get to that.
   	THE WITNESS:  A MUD is an on-line forum like others in which 
   people can log in remotely, select an identity.  And essentially 
   it's a place where instead of a professional creating 
   entertainment you create your own entertainment.  You make 
   yourself a dwarf or a wizard or a princess and describe yourself 
   textually, so that others who issue the command to look at you 
   when you enter a room see your description of yourself as a wizard 
   or a princess, and then you have conversations and make up 
   adventures.  There's a large number of these, hundreds if not 
   thousands of these that exist.
   	JUDGE DALZELL:  Does MUD stands for something?
   	THE WITNESS:  It originally stood for multi-user dungeons, 
   because it came from the Dungeons and Dragons fantasy role-playing 
   	JUDGE DALZELL:  Okay, I'll take the bait on MUSE.
   	THE WITNESS:  These are... as many of these on-line forums 
   tend to evolve into forums that were not originally intended the 
   MUD's, which were originally kind of games that teenage boys 
   played with each other, were seen by some to be educational 
   environments in which instead of having a fantasy world you could 
   talk about mathematics or astronomy or social studies.  So, multi-
   user simulation environments, i.e. MUSE, evolved as a place where 
   not primarily game playing, but learning through role playing with 
   simulations is the purpose of the social gathering.
   	JUDGE DALZELL:  There you have it.
   	JUDGE SLOVITER:  I don't know about wizards, but I have a 
   feeling princesses aren't so happy nowadays, I'm not sure why 
   somebody would want to be a princess.

   Q   Mr. Rheingold, in the virtual communities that you have 
   described for us that form around these -- initially form around 
   the interest group discussions that you're talking about, the 
   interest -- the topics, you have yourself participated in virtual 
   communities built around a wide variety of issues, right?
   A   Yes.
   Q   And you're aware the virtual communities, some of the topics 
   would include AIDS, for example, right?
   A   Yes.
   Q   Sexual abuse of children would be another example?
   A   Yes.
   Q   Sex education of children?
   A   Yes.
   Q   Breast cancer support groups, correct?
   A   Yes.
   Q   Gender discrimination support groups --
   A   Yes.
   Q   -- and discussion groups?  A general discourse about 
   politics, right?
   A   Yes.
   Q   Now, sometimes the participants in these communities may 
   describe sexual activity in explicit terms in the course of these 
   discussions, correct?
   A   That's correct.
   Q   And sometimes they may use street or colloquial language to 
   make a point, right?
   A   That's correct.
   Q   And sometimes they may use an expletive in the heat of 
   argument or debate, right?
   A   That's correct.
   Q   And your concern is that under the CDA participants in these 
   virtual communities could be prosecuted for using explicit sexual 
   language in discussing AIDS, right?
   A   That's correct.
   Q   Or for discussing -- using that kind of language, explicit 
   sexual language in discussing the sexual abuse of children?
   A   That's correct.
   Q   Or breast cancer?
   A   That's correct.
   Q   Or any of the other topics that we just went through?
   A   That's correct.
   Q   Or for using expletives in heated discourse?
   A   Yes.
   Q   Indeed, didn't you tell me that you were concerned that 
   discussions of Shakespeare's Hamlet might be subject to -- or 
   might subject a virtual community member to prosecution under the 
   CDA because of the sexual puns in Hamlet?
   A   That's correct.
   Q   Now, do you really think that Hamlet depicts or describes in 
   terms patently offensive, as measured by contemporary community 
   standards, sexual or excretory activities or organs?
   A   I fear, because of my knowledge of the successful attempts to 
   remove books such as Tom Sawyer and the Diary of Anne Frank from 
   school libraries that the definition of what may be offensive may 
   indeed extend to Shakespeare, if it can extend to Anne Frank and 
   Mark Twain, yes.
   Q   You're also concerned that images of Michelangelo's "David" 
   that might appear in virtual community discussions that might 
   subject members to the -- members of the community to prosecution 
   under the CDA, right?
   A   Yes, other classical works of art that depict full-frontal 
   Q   And you think that Michelangelo's "David" and other classical 
   works of art that depict full-frontal nudity -- or do you think 
   that these types of works depict or describe in terms patently 
   offensive, as measured by contemporary community standards, sexual 
   or excretory activities or organs?
   A   Which contemporary community?  Standards in my household 
   regard works of art as not being offensive.  I am aware that there 
   are people who live in my neighborhood who do find that offensive.
   Q   Now, you have not participated in any virtual communities 
   that are built around the posting of sexually-explicitly images, 
   have you?
   	JUDGE BUCKWALTER:  What -- I didn't hear that, I'm sorry.
   	MS. RUSSOTTO:  I'm sorry, I'll repeat that.

   Q   You have not participated in any virtual communities that are 
   built around the posting of sexually-explicit images, have you?
   A   Not to my knowledge.
   Q   You're familiar with bulletin-board systems, right?
   A   Yes.
   Q   Would you just briefly explain what those are?
   A   A bulletin-board system is as simple as an inexpensive 
   personal computer with a modem, some simple software on it that 
   you plug into your telephone, and publicize the telephone number 
   and encourage people to log in, read and write, publish and 
   converse.  I understand that there are more than 70,000 bulletin 
   board systems in North America now.
   Q   And in your experience do virtual communities form around 
   some of these bulletin-board systems?
   A   Yes, they do.  I have participated in such and participate in 
   discussions with people who participate in them.
   Q   Now, some of these bulletin-board systems are commercial, are 
   they not?
   A   Yes, they are.
   Q   And they require a credit card for access, right?
   A   Yes, some of them do.
   Q   And some of these bulletin-board systems require a user to 
   register and receive a password before viewing the material that's 
   posted to the bulletin board, correct?
   A   That's correct.
   Q   And some bulletin-board systems in fact require a higher 
   access status in order to gain access to certain discussions on 
   the bulletin board, isn't that right?
   A   That's correct.
   Q   Now, I'm going to refer you to Exhibit 90, Defendant's 
   Exhibit 90, these are excerpts from your -- the paperback version 
   of your book, The Virtual Community.  And at Page 142 of your book 
   you state, "A bulletin-board system or BBS is open to anyone who 
   wants to call in.  You have to stick around for a while, perhaps 
   meet the SISOP (ph.) in person to be granted access to more 
   restricted discussions that take place among the inner circle of 
   the same BBS."
   A   Yes.
   Q   Is that correct?  So, not everyone can participate in these 
   higher-access discussions, correct?
   A   That's correct.
   Q   And there is an inner core of participants that are just 
   granted access to those restricted discussions, right?
   A   That's correct.
   Q   And in fact you would need a special password for the system 
   operator in order to gain access to the files -- to some files 
   that are not accessible to other participants, right?
   A   Not necessarily.  The system operator could have a list of 
   registered users who have access to certain material that was not 
   Q   So, then you would have to register to gain access to this 
   restricted list of materials on the bulletin board?
   A   Yes.
   Q   Now, you're aware, are you not, that sexually-explicit 
   material is posted to some bulletin-board systems, right?
   A   Yes.
   Q   And could virtual communities form around the posting of 
   images and text messages on sexually-explicit bulletin-board 
   A   Certainly I can think of instances where that could be the 
   Q   And those bulletin-board systems could require a user to 
   enter a credit card number for access to those images and 
   discussions, correct?
   A   It's technically possible, yes.
   Q   And they could also -- those bulletin-board systems that 
   accept postings or have postings of sexually-explicit images and 
   text, they could require registration or receipt of a password for 
   access to the site, right?
   A   That's correct.
   Q   And those types of bulletin-board systems could require a 
   higher access, as we were just talking about, to restrict a 
   minor's ability to gain access to the sexually-explicit materials, 
   A   Yes.
   Q   And restricting access to exclude minors from viewing the 
   sexually-explicit material on a bulletin-board system would not 
   substantially alter the adult virtual community formed around that 
   bulletin-board system, would it?
   A   I'm not sure, it would depend on the circumstances.  If that 
   in effect removed minors from a large range of discussions which 
   may have sexual content rather than simply downloading images, for 
   example, then I think that that -- that could be substantially 
   damaging to their participation.
   Q   Yes, but we're talking about those bulletin-board systems 
   that post and discuss sexually-explicit material, depictions of 
   explicit sexual activities, you're saying that you think there are 
   certain circumstances in which it would damage the community, that 
   community to exclude minors from viewing those kinds of images?
   A   Certainly -- if you would permit, I can cite an example.  If 
   you were, for example, a gay teenager in a small town who felt 
   that maybe you were the only person in the world who had certain 
   feelings, and those feelings do have to do with explicit sexual 
   acts or imagining certain sexual acts, and there are a number of 
   people like that who are at risk of suicide and depression, that 
   being unable to participate in discussions with others who might 
   be able to tell them that they're not alone, that instance would I 
   think be damaging.  And, again, the definition of whether it's 
   obscene or whether it could be offensive to some I think in my 
   mind is kind of fuzzy and would exclude what I think would be very 
   healthy discussions for some people.
   Q   So, you're assuming an educational value then to the 
   material, sexually -- explicit images of sexual activity, you're 
   assuming an educational value to that material?
   A   Well, as I understand it and I'm not an attorney, obscenity 
   has to do with the lack of socially-redeeming value.  So, I would 
   Q   I understand, that's --
   A   -- say socially-redeeming value would be educational value, 
   for example.
   Q   All right.  Now, children represent only a small percentage 
   of the number of participants in the virtual communities that 
   you're aware of, isn't that right?
   A   In some.  In others, such as the MUD's and MUSE's, I think 
   that they are a substantial minority or even a majority.
   Q   Okay.  So, in the MUD's and MUSE's there are a substantial 
   number of minors?
   A   Yes.
   Q   But in others it's mostly adults that are participating in 
   those virtual communities?
   A   Yes.
   Q   Now, I think your affidavit talks about your daughter using 
   the Internet, correct?
   A   That's correct.
   Q   And you've said that she uses that to E-mail messages to her 
   friends, right?
   A   And to use search engines to do research for her homework.
   Q   And your daughter is 11 years old, right?
   A   That is correct.
   Q   And you don't supervise your daughter all throughout the time 
   that she is using the computer, do you?
   A   No, I do not.
   Q   Do you use any of the parental blocking software to block 
   access to certain sites?
   A   No, I do not.  I believe it's important to teach my daughter 
   to make moral choices and I have made her aware that there are -- 
   that there is material out there that would be unhealthy for her 
   if she choose to access it.
   Q   And your advice to her is simply not to put it into her mind, 
   A   My advice to her is that, just as she knows that there are 
   nutritious things to put in her body, there are nutritious things 
   to put in her mind.  And if she comes across or has sent to her 
   material that she feels is harmful she should drag it to the 
   trash, which is the way you delete material on a screen, or she 
   should show it to me.
   Q   Now, you're familiar with the UseNet news groups, right?
   A   Yes, I am.
   Q   And in your opinion do virtual communities form around these 
   UseNet news groups?
   A   They can, they do.
   Q   All right.  And some of these news groups are moderated, 
   A   Yes.
   Q   And would you tell us or explain what happens in a moderated 
   news group?
   A   In an unmoderated news group anyone who wants to participate 
   by posting something will simply issue the command to send it to 
   that news group, and it will automatically be published and read 
   by others who subscribe.  In a moderated news group that posting 
   goes to a moderator and the moderator decides whether to publish 
   it or not.
   Q   And you yourself hosted a moderated news group, right?
   A   Yes, I did, I started one.
   Q   And you moderated it to essentially say that this is polite 
   conversation and if you make trouble your words won't show up, 
   A   Yes.  And also, I think to extend that, I was interested in 
   creating a forum for serious scientific discussion and not 
   arguments about science fiction.
   Q   But you retained some discretion over what was posted in the 
   news group that you moderated, right?
   A   Yes.  I received all of the postings before they were posted 
   and gave the command to post them.  There was not in fact a single 
   instance in which I choose not to publish something.
   Q   But you could have?
   A   I could have, that's correct.
   Q   You are aware, are you not, that adult news groups containing 
   sexually-explicit materials exist on UseNet, right?
   A   Yes.
   Q   Now, I'm going to refer you again to another excerpt from 
   your book on Page 131, this is Exhibit 90.  
   Q   And I'm looking at the continuing paragraph at the top of 
   Page 131, you say that "If a local group does not want to carry a 
   news group or wants to block access to UseNet by certain users 
   it's possible to do so."  That's correct, right?
   A   That's correct.
   Q   And by local group you mean a server or an ISP?
   A   Yes.
   Q   Internet service provider?
   A   Yes.
   Q   And the administrator of the server or the Internet service 
   provider could just decide not to carry certain news groups, 
   A   That is correct.
   Q   So, they could decide not to carry some of the news groups in 
   the alt.sex hierarchy, right?
   A   Yes, they could, although if you provide access to the 
   Internet it's not necessary to have access to the news groups that 
   that particular Internet service provider keeps on their server, 
   you could for example go to another server.
   Q   But you would have to have an account on that other server, 
   A   Not necessarily.  There might -- and in fact I'm quite sure 
   there are places where you can have access to news groups without 
   having a password, you could have guest -- they could be open to 
   guest accounts, for example.
   Q   Mm-hmm, but the server that -- the particular server that you 
   have an account on could decide not to carry the alt.sex hierarchy 
   or the alt.binaries hierarchy, right?
   A   That's correct.
   Q   And you talked about MUD's and MUSE's a little bit and you've 
   explained what those are, is it your opinion that virtual 
   communities can develop around those kinds of fantasy worlds?
   A   Yes, I have experienced them.
   Q   Okay, how does that happen?
   A   If people, and here we're talking about young people as well 
   as older people, find for example that they don't have the 
   intellectual stimulation or the kind of specific mentoring in 
   mathematics or literature, whatever they're interested in, in 
   their geographic vicinity and they go to a MUSE, such as the one I 
   described at MIT or one I have written about in Phoenix, Arizona, 
   and find an atmosphere in which people are friendly and help them 
   understand that material and can teach them in a way that maybe 
   they're not going to be able to learn at home or in their local 
   school, then that would become an important resource for them.  In 
   general, these communities are social places where it isn't just 
   the learning or the game playing, but the communication with 
   others, casual communications with others that you encounter 
   there, that seems to be the attraction.
   Q   And to participate in those kinds of fantasy worlds you have 
   to be issued a password, is that right?
   A   Almost all MUD's and MUSE's have a guest account that does 
   not require a password.  If you want to become a citizen of that 
   community and create a character that has an ongoing presence then 
   you need to register.
   Q   So, a guest would just allow you to peek in and see what's 
   going on, right?
   A   A guest could peek in and a guest could have conversations 
   and participate, but that guest would only be designated as Guest 
   1 or Guest 2 and would not establish an identity that had an 
   ongoing identity.
   Q   Now, these fantasy worlds often prescribe certain rules of 
   behavior for their participants, don't they?
   A   Sometimes they do, yes.
   Q   And in your book you have talked about the virtual community 
   called Cyberion City, correct?
   A   Yes.
   Q   And at Page 160 of your book you say that the Cyberion City 
   charter warns you when you enter that there are children there and 
   educators and librarians and people having fun, and anybody who 
   abuses the rule of polite communication is likely to have his or 
   her character removed, correct?
   A   That's correct.
   Q   And the rules of polite communication in Cyberion City 
   preclude using sexually-explicit language, right?
   A   Yes.
   Q   And they also preclude explicit discussions of excretory 
   activity, correct?
   A   Yes, as far as I know.
   Q   Well, you have written about it, right?
   A   Yes.
   Q   And participants in Cyberion City can be removed from the 
   community for violating those rules of the road, right?
   A   Yes.  I would add, however, that it's important to note that 
   the charter of Cyberion City was created by the participants, that 
   was the particular charter that they agreed upon and there are 
   indeed others that I didn't write about that have different rules.
   	JUDGE DALZELL:  Cyberion, for purposes of the record, is C-y-
   b-e-r-i-o-n, not with an S, as some of us might have thought.
   	JUDGE SLOVITER:  Oh, by listening.
   	JUDGE DALZELL:  Right.

   Q   But if the participants do violate these rules that are 
   agreed upon then they can be removed from the community, right?
   A   They can be removed.  In this case there is also a due 
   process built into the charter, and complaints can lead to trials 
   and juries of peers and appeals.
   Q   And they can be removed?
   A   And they can be removed.
   	JUDGE DALZELL:  How are the judges appointed?
   	THE WITNESS:  To my knowledge, they are selected by the 
   members of the community.
   	JUDGE DALZELL:  Do they have impeachment?
   	THE WITNESS:  I would suspect so.  Anything that comes up 
   when you're trying to run a judicial apparatus comes up in a 
   community like this and there are attempts to create mechanisms 
   for dealing with them.  In this particular case and others that I 
   know of those are regarded as educational opportunities whereby 
   students can understand what due process means.
   	JUDGE SLOVITER:  Do you have to have a passport that makes 
   you below 18 to get into them?
   	JUDGE DALZELL:  No.  You need to understand the language and 
   quite under -- quite often you need to participate in discussions 
   with minors to understand that.
   	JUDGE SLOVITER:  And if some of us are finding this world a 
   little difficult, judges and otherwise, we can just escape into 
   that one?
   	THE WITNESS:  Well, I sometimes say as a joke, but it's not 
   really a joke, that if you really want to understand the on-line 
   world you need to get a 17 or 18-year-old to sit with you.

   Q   And in other fantasy communities besides Cyberion City that 
   you're familiar with, someone with a route password could remove a 
   participant that doesn't comply with the rules of those 
   communities, right?
   A   Yes, they have the power to do that.
   Q   Right.  Are there discussions or descriptions of explicit 
   sexual activity that occur in some of these fantasy worlds?
   A   Yes.
   Q   Now, participants in these fantasy worlds can build parts of 
   the fantasy environment themselves, can't they?
   A   That's correct.
   Q   And they would basically program a room or a section of the 
   environment, is that right?
   A   Yes, they can not only communicate, but they can create 
   behaviors that are contingent upon things that happen.
   Q   And the creator of a particular environment could program it 
   to exclude certain people from that environment, right?
   A   Yes.
   Q   Or, conversely, only to allow certain people in, the same 
   thing, I guess?
   A   Yes.
   Q   So, these rooms could be programmed to exclude minors, for 
   A   Yes.
   Q   And rooms where there are discussions of explicit sexual 
   activity could be programmed to exclude minors?
   A   Yes.
   Q   And in your view it would not be detrimental to the community 
   of this fantasy environment for some minors to be excluded from 
   rooms where explicit sexual discussions are going on, right?
   A   Well, again, I would cite an instance of where some minor was 
   having a problem with sexuality, which might well be helped by 
   participating in those discussions.
   Q   Okay.  I would ask you to take a look at Page 149 of your 
   deposition.  And I think it might be useful to talk about some of 
   the -- a discussion that we had during your deposition of this 
   Q   Question:  "Do you think it would be beneficial to the 
   community to exclude minors from accessing rooms where that type 
   of description of explicit sexual activity is going on?"
   	Answer:  "It's hard to tell.
   	Answer:  I can think of instances from this affidavit in 
   which it would damage the community by causing people to lie about 
   their age.  I would also wonder where the distinction between 
   explicit sexual conversation and adult conversation was 
   	Question:  "Well, would the beneficial or detrimental effect 
   on the community perhaps depend on the age of the minor?"
   	Answer:  "Yes, I think yes.  I think that for an elementary 
   school student it would be much more inappropriate than for a high 
   school or college student."
   	Question:  "Why do you think it might be more inappropriate 
   for an elementary school student to be allowed access to one of 
   these rooms in a MUD where sexual activity is going on?"
   	Answer:  "For one thing, they haven't undergone puberty; for 
   another thing, probably for that reason they haven't had any 
   sexual education; and, for another thing, their level of maturity 
   would be presumably generally lower, although of course you find 
   very mature young people and very immature older people."
   	Question:  "So, it might not be a benefit to the community to 
   have an elementary school student be given access to those types 
   of rooms on the MUD?"
   	Answer:  "That's correct."
   	That was your testimony, correct?
   A   That's correct.
   Q   And the last question I have for you, in your book you talk 
   about a "digital convergence of media," what do you mean by that?
   A   Well, I mean that what we're talking about here, the Internet 
   and bulletin-board systems, are systems in which material that 
   resides on computers is sent through communication wires, we're 
   seeing that voice and images and software, as well as words, can 
   be converted to digital form and sent through wires.
   Q   Okay, thank you.
   	MS. RUSSOTTO:  May I have just a moment, your Honor?
   	MS. RUSSOTTO:  I have nothing further.
   	JUDGE SLOVITER:  Any redirect?
   	MR. HANSEN:  Just one question, your Honor.

   Q   Mr. Rheingold, as MUSE's and MUD's are currently set up do 
   the participants know whether the other participants are adults or 
   A   No.
   	MR. HANSEN:  That's all I have, your Honor.
   	JUDGE SLOVITER:  Judge Dalzell?
   	JUDGE DALZELL:  No questions from me.
   	(Discussion held off the record.)
   	JUDGE BUCKWALTER:  The one thing in your declaration, sir, 
   that is not really relevant, but I wonder what you meant by "among 
   the many things left out of the distorted popular image of the 
   Internet are people from whom the Net is a lifeline," what did you 
   mean by the distorted pop -- what is the distorted popular image?
   	THE WITNESS:  Well, I know personally disabled people, people 
   who are --
   	JUDGE BUCKWALTER:  No, no, no, I meant what's the distorted 
   popular image you're referring to?  Is it your feeling that --
   	THE WITNESS:  Well, I travel a lot and I speak a lot and 
   almost everything that I hear -- I'm also called by the media for 
   quotes a lot, almost everything that I'm asked is about porno on 
   the Net.  And I think that the distortion is that you turn your 
   computer on and porno comes flooding through the screen --
   	JUDGE BUCKWALTER:  Okay, that's what you meant by that.
   	THE WITNESS:  Yes.
   	JUDGE BUCKWALTER:  I wondered, because I would consider 
   myself to be part of the public --
   	THE WITNESS:  Yes.
   	JUDGE BUCKWALTER:  -- and I want to know what this distortion 
   is that I am --
   	THE WITNESS:  Well, do you --
   	JUDGE BUCKWALTER:  And you have explained to me what you 
   thought the distortion was, thank you.
   	THE WITNESS:  Okay.
   	JUDGE BUCKWALTER:  Thank you.
   	JUDGE SLOVITER:  As I understand it, and I didn't until 
   yesterday and I'm not sure I do, but what we're talking about in 
   MUSE's and MUD's -- and stop me if I'm -- or correct me, please, 
   if I'm incorrect -- is that there is some kind of interactive 
   fantasy world out there in which participants take on new 
   personalities or different personalities, a bit like a masquerade, 
   and this permits them to discuss with each other or among each 
   other whatever they want to, is that correct?
   	THE WITNESS:  No, I think that is not an adequate 
   description, if it was only that it probably wouldn't be popular.
   	JUDGE SLOVITER:  Well, and in the -- I guess in the -- I 
   don't -- and in the process they may --
   	THE WITNESS:  Could I add just a little bit to that?
   	JUDGE SLOVITER:  Well, no.  I mean, in the process they may 
   get educated or get their feelings out, et cetera, is that -- I 
   just want to know --
   	THE WITNESS:  No, you're leaving something out, which is it's 
   not just creating a fantasy character and having conversations, 
   but you can actually create the environment itself, which exists 
   independent of your presence in it.
   	JUDGE SLOVITER:  All right, let's leave that for the 
   existentialists and go back to what we have here.
   	THE WITNESS:  Well, it's important for children who for 
   example might be interested in C. S. Lewis to be able to create 
   their own "Narnia."
   	JUDGE SLOVITER:  But is this uniquely for children or 
   primarily for children?
   	JUDGE SLOVITER:  What percentage of this communication is 
   sexual in nature, do you have any idea?
   	THE WITNESS:  I can't tell you precisely, but my guess would 
   be it's under ten percent.
   	JUDGE SLOVITER:  And the material that's not sexual in nature 
   what do they -- what is the subject matter?
   	THE WITNESS:  The subject matter --
   	JUDGE SLOVITER:  I haven't read your books yet, so...
   	THE WITNESS:  -- could be adventure, science fiction, 
   classical literature.  There are places that I have described in 
   school districts that study ancient Egypt, for example, or other 
   historical places, not imaginary places.
   	JUDGE SLOVITER:  Is this used, to your knowledge, by schools 
   and school districts?
   	THE WITNESS:  Yes, it is.  There's -- the MUSE in 
   -- called MariMUSE in Maricopa County, that's an example, that's 
   in Phoenix, Arizona; one of the poorest school districts in the 
   nation, a place where a very small percentage of the students have 
   -- their students speak English; this is a place where college 
   students from Phoenix College and teachers from the school and 
   young children participate in discussions of, for example, ancient 
   Egypt or create -- recreate ancient Egypt and in fact bring their 
   parents in to show them, and in some instances teach their parents 
   	JUDGE SLOVITER:  So that on the screen at this time is like 
   an Egyptian city, is that what you're --
   	THE WITNESS:  You would give the -- you would say, show me 
   what's here, and you would then see a description written by 
   students that would say, there are pyramids in the distance.  And 
   you could say, approach the pyramid, they could then using words 
   describe what it is you see, so in that sense create an Egyptian 
   	JUDGE SLOVITER:  But it's all in language rather than in 
   	THE WITNESS:  It's all in language.
   	JUDGE SLOVITER:  Okay.  Now, at Paragraph 10 of your 
   declaration you state that some MUD's or MUSE's have designed 
   methods to ban minors from these communities, what sort of methods 
   do they use?  
   	THE WITNESS:  Well, in this instance I was informed by the 
   young man that the people who administered this MUSE 
   -- this MUD were afraid of the consequences of the CDA and asked 
   minors to identify themselves.
   	JUDGE SLOVITER:  But they're totally dependent then, are they 
   not, on self-identification?
   	THE WITNESS:  In this instance, yes.
   	JUDGE SLOVITER:  Well, in any -- you said yes to a number of 
   questions about that and I -- 
   	THE WITNESS:  Well, there's really no difference between a 
   MUD or a MUSE or any other site on the Internet to which you need 
   to log in.  If you need to log into this they can require a 
   password and they can require you to register to get that 
   	JUDGE SLOVITER:  But how would it be enforced as applicable 
   to minors?
   	THE WITNESS:  Well, you could require them to give you a 
   credit card number that you would verify.
   	JUDGE SLOVITER:  Well, you mean --
   	THE WITNESS:  It would require someone on the other end to go 
   through the process of verifying the credit card.
   	JUDGE DALZELL:  Well, now I'm really confused.
   	JUDGE DALZELL:  The host of this MUD, certainly a MUD, the 
   host of this is more often than not a child or somebody young.
   	THE WITNESS:  Well, I wouldn't say more often than not, but 
   certainly there are hosts who are children.
   	JUDGE DALZELL:  All right, but they're not going to verify 
   credit card numbers, how would they do that?
   	THE WITNESS:  That's correct, they're not going to be able to 
   do that.
   	JUDGE DALZELL:  I guess Chief Judge Sloviter and I are 
   perplexed because Ms. Russotto asked you a number of questions 
   about these MUD's and MUSE's being, her term, programmable --
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  -- to exclude minors and you readily answered 
   yes to all of those questions.
   	THE WITNESS:  You can do the programming, that's not the same 
   thing as doing the verification.  The tools exist to exclude 
   anyone you want, you can simply say Person A with Password B can't 
   get in.  Now, determining the age of that person and verifying I 
   think is a different matter from technically is it possible to do.
   	JUDGE DALZELL:  So, in other words, to get into the MUD or 
   the MUSE you would have to have -- well, you have to have a 
   password anyway, right, that someone gives you?
   	THE WITNESS:  Many of them say on the screen when you enter 
   register as guest, with password guest.  So, you don't necessarily 
   have to have a secret password.
   	JUDGE DALZELL:  But then if you're going to be a permanent 
   member what do you do, you write in using the U.S. Postal Service?
   	THE WITNESS:  If you want to be -- yes, if you want to be a 
   permanent member then you go through a registration procedure.  
   And quite often what that consists of is giving them a name, not 
   necessarily your legal identity, and an E-mail address, and they 
   will then E-mail the password to that E-mail address.  And what 
   they're concerned about is not so much who you are, but that the 
   person who you claim to be today is the same person you claim to 
   be tomorrow.  Otherwise you could have someone calling themselves 
   Howard on day one and another person on day two adopting that 
   identity and doing all kinds of things that Howard might not want 
   to be identified with.
   	JUDGE DALZELL:  And who is the they who gives the password?
   	THE WITNESS:  Well, it's the system administrator.  A system 
   administrator is the person, whether it's because they're in a 
   university and they've been given that power by the administration 
   or because they own a computer and they have connected it to the 
   network who has the route password, does that -- is that term 
   clear to you --
   	JUDGE DALZELL:  The route --
   	THE WITNESS:  -- the route password?  
   	JUDGE SLOVITER:  Well --
   	THE WITNESS:  The person who has control of the computer 
   system has technical control over everything that happens, can 
   throw anyone off, can admit who they want, can erase the data base 
   if they choose.
   	JUDGE SLOVITER:  What harm would happen if all sexual content 
   was removed?  It's less than ten percent and they could still play 
   their castles-in-the-air, what would happen?
   	THE WITNESS:  I would like to have a specific definition of 
   sexual content to --
   	JUDGE SLOVITER:  Well, I asked you how much of it involved 
   sexual activity, et cetera, and you said less than ten percent, 
   whatever you meant in answering I meant in asking.
   	THE WITNESS:  Okay, could you repeat that?  What harm would 
   there be?
   	JUDGE SLOVITER:  Yes, what would happen if -- to the extent 
   that they knew that all the games that were -- that could be 
   played were limited to games that had non-sexual activity?
   	THE WITNESS:  Well, it's -- if you're talking about games, I 
   don't see a problem --
   	JUDGE SLOVITER:  Well, I call it games, I mean, you become --
   	THE WITNESS:  -- discussion --
   	JUDGE SLOVITER:  -- a different person -- yes?
   	THE WITNESS:  As I said, I have named an instance in which I 
   think it could be harmful to ban discussions of sexual behavior, 
   those in which there is an educational component.
   	JUDGE DALZELL:  But that would be a MUSE?
   	THE WITNESS:  It could be.  And I think it's important to 
   note that this entire communications medium is one that evolves 
   and changes.  MUD's used to be for college students having -- 
   having fun, pretending to be play Dungeons and Dragons, now 
   they're becoming educational environments.  It's hard to tell what 
   they're going to become in the future.  So, I'm being careful with 
   my answers because I would want to be careful about exactly how I 
   would constrain how these things can grow, because what they are 
   today is not necessarily what they're going to be tomorrow.  And 
   in fact in my book I wrote about the fact that the Internet would 
   not be here if the people who created it stuck to the rules of 
   what you were supposed to do.  You weren't really supposed to 
   communicate, it was really just for government researchers --
   	JUDGE SLOVITER:  Well, we have seen --
   	JUDGE DALZELL:  Yes, we have been over that.
   	JUDGE SLOVITER:  We have been over that.
   	THE WITNESS:  right.
   	JUDGE SLOVITER:  Did our questions elicit -- our attempt at 
   understanding this, did that elicit any questions from either 
   	MS. RUSSOTTO:  No questions from the Government, your Honor.
   	MR. HANSEN:  No, your Honor.
   	JUDGE SLOVITER:  Okay, thank you very much.
   	(Witness excused.)
   	MR. PRESSER:  For purposes of our written record -- I am 
   Stefan Presser -- 
   	JUDGE SLOVITER:  You better identify yourself.
   	MR. PRESSER:  I am Stefan Presser of the American Civil 
   Liberties Union.  At this time plaintiffs would call Barry 
   Steinhardt, who is the associate director of the American Civil 
   Liberties Union, to the witness stand.  And as he makes his way 
   forward we would also introduce -- or ask permission to introduce 
   his signed declaration of March 27th, which was filed with this 
   Court on March 28th, as the direct testimony.
   	JUDGE SLOVITER:  Do you have any objection?
   	MR. BLACKWELL:  Your Honors, Craig Blackwell again. Yes, the 
   Government has a partial objection to the introduction of Mr. 
   Steinhardt's affidavit.  There are certain paragraphs in the 
   affidavit that report the substance of telephone conversations and 
   meetings between Mr. Steinhardt and members of two commercial 
   entities, New Media Publishing and First Data Security.  I believe 
   the paragraphs are 26, 27, 28, 29, 32 and 33, they're out-of-court 
   statements offered for their truth and they are classic hearsay.
   	JUDGE SLOVITER:  We'll accept it for what it's worth, 
   consistent with our ruling throughout.  But continue to object, to 
   the extent that you haven't, so it's on the record.
   	BARRY STEINHARDT, Plaintiffs' Witness, Sworn.
   	THE COURT CLERK:  Thank you, you may be seated.  Please state 
   and spell your name.
   	THE WITNESS:  Yes, it's Barry, B-a-r-r-y, Steinhardt, S-t-e-
   i-n-h-a-r-d, as in David, -t, as in Tom.

   Q   Good afternoon, Mr. Steinhardt.  Could you state for the 
   record your position at the ACLU?
   A   Associate director of the national office of the ACLU.
   Q   And you're also an attorney, correct?
   A   That's correct, yes.
   Q   The ACLU has two Internet sites, right?
   A   No, the ACLU has one Internet site, we also have -- we are 
   also an information provider on America Online.
   Q   And your Internet site, it's a Worldwide Website, correct?
   A   Yes.
   Q   And it's open to anyone with access to the Internet?
   A   Yes.
   Q   You're site on America Online is open only to America Online 
   subscribers, correct?
   A   That's correct, yes.
   Q   The material that the ACLU posts on its Website and America 
   Online sites deal with civil liberties issues, correct?
   A   Yes.
   Q   Could you turn to Defendant's Exhibit 149, which should be in 
   the binder in front of you?
   A   Okay.
   Q   That's the ACLU's home page on its Internet Worldwide 
   A   Yes.
   Q   Now --
   A   Rather, it's its home page as it appeared at the time when 
   this was downloaded, because the home page changes from time to 
   	JUDGE SLOVITER:  Please talk a little more clearly.  Sorry.
   	THE WITNESS:  Rather, it's its home -- that is the home page 
   as it existed at the time this particular image was downloaded, we 
   do change the home page from time to time.

   Q   Has it changed since it was downloaded as it was reflected by 
   Exhibit 149?
   A   Yes, it has.
   Q   In what sense?
   A   There is a second -- underneath the image, "Will justice 
   prevail," where it says, "Tune in to debates," there is a second 
   link; I don't remember precisely what that link is, but I noticed 
   looking last night that there was a single link that had been 
   Q   But everything else is the same?
   A   For the most part, yes.
   Q   Okay.  Now, on the right-hand side of the center icon there 
   are numerous topics that make up the ACLU's content that it posts 
   on the site, correct?
   A   Yes.
   Q   And the topics include, I'll name a few, separation of church 
   and state?
   A   Yes.
   Q   Criminal justice?
   A   Yes.
   Q   Cyberliberties?
   A   Yes.
   Q   Free speech?
   A   Yes.
   Q   Lesbian and gay rights?
   A   Yes.
   Q   Students rights?
   A   Yes.
   Q   And the rest of them are reflected there in that column on 
   the right?
   A   Yes, they are.
   	JUDGE SLOVITER:  Excuse me just for a minute.  To put the 
   minds of those of you in the courtroom at ease as to what's going 
   on, we have just received word that there may be a fire, but it's 
   not in this building.
   	JUDGE SLOVITER:  And the Marshals are here and presumably 
   they'll come -- since they're not angry at all of us, presumably 
   they'll come and get us or advise us if anything happens that we 
   should know about it.  So, although it's a little -- you may have 
   some concern or wonder.  I'm sorry to interrupt, Mr. Blackwell, 
   but I saw Mr. Coppolino turn around.
   	MR. BLACKWELL:  I hope he's watching my back.
   	THE COURT:  He's watching all of you, my guess is.

   Q   Mr. Steinhardt, the material that the ACLU posts on its 
   Worldwide Website and America Online sites are in the ACLU's view 
   educational, correct?
   A   Yes.
   Q   And also in the ACLU's view the materials are informational?
   A   The -- yes, but we don't control all of the postings to our 
   AOL site.
   Q   To the extent the ACLU posts content, it's in its view 
   educational or informational -- and/or?
   A   Related to civil liberties, yes.
   Q   On the America Online site, but not on the Website, the ACLU 
   also permits users to post messages on bulletin boards, correct?
   A   That's correct.
   Q   And there are about a dozen bulletin board topics?
   A   There are actually, since we spoke at the deposition I 
   checked, there are 20 of them.
   Q   20 topics?
   A   Yes.
   Q   And the topics of the bulletin boards are designated by the 
   ACLU, correct?
   A   That's correct, yes.
   Q   And those topics also relate to civil liberties issues?
   A   That's correct.
   Q   Which correspond roughly to the topics that are on the right-
   hand side of Exhibit 149?
   A   Roughly speaking, yes.
   Q   Now, on the America Online site and, again, but not on the 
   Website, the ACLU also has so-called auditorium events, correct?
   A   That is correct, although we do publish the transcripts of 
   some of those auditorium events on the Website.
   Q   But the events themselves happen only on the America Online 
   site, correct?
   A   At this point, yes.
   Q   Could you briefly explain for the Court what the auditorium 
   events are?
   A   An auditorium event would be a session where a guest speaker 
   would be brought in and would take questions from both a host, who 
   is generally an ACLU staff person, and from subscribers through 
   America Online who would post those questions by electronic mail 
   essentially and then the responses would appear, they are real-
   time conversations that take place.
   Q   Now, the guests for these events are chosen by the ACLU, 
   A   That's correct, yes.
   Q   And the guest is responding to questions posed by America 
   Online users?
   A   Yes.
   Q   Now, there is a moderator for these events who is an ACLU 
   employee who chooses what questions to pass on to the speaker, 
   A   It's either an ACLU employee or a volunteer who has been 
   trained to be a moderator.
   Q   But the point is that the moderator passes -- chooses which 
   questions to pass to the speaker, right?
   A   Yes.
   Q   And the users that are participating in the auditorium events 
   see only the question that the speaker answers, correct?
   A   Yes.
   Q   Now, the guests for these forums are nationally-known 
   personalities who speak on civil liberties-type issues, right?
   A   That's generally true, yes.
   Q   I'm sorry?
   A   That is generally true, yes.
   Q   Guests have included the former Surgeon General of the United 
   States, Dr. Jocelyn Elders, correct?
   A   Yes.
   Q   Who spoke, among other things, about the reasons why she was 
   dismissed by President Clinton?
   A   Yes, she spoke specifically about her references to 
   masturbation, yes.
   Q   And users participating in the forum discussed the 
   appropriateness of the President's response to her comments about 
   A   Yes, they did, both there and in bulletin boards following 
   Dr. Elders' appearance in this auditorium.
   Q   And you're concerned that those discussions about 
   masturbation in the context of Dr. Elders' firing by President 
   Clinton may be covered by the Communications Decency Act, correct?
   A   Well, there is language in certainly many of the bulletin 
   board postings that's very similar to that which caused the FCC to 
   bring action against Pacifica and Infinity Broadcasting.  So, yes, 
   to the extent to which it is the Government's position that it is 
   the same standard I am very concerned, yes.
   Q   You're concerned about the Elders comments?
   A   I am less concerned about the auditorium event than I am 
   concerned about the bulletin boards where individual America 
   Online subscribers discussed Dr. Elders' appearance and, in 
   particular, masturbation and used street language, yes.
   Q   Now, also on the America Online site, but not on the Website, 
   the ACLU has a chat room?
   A   Yes.
   Q   Where users can discuss current events, right?
   A   Yes.
   Q   And react to the events in other civil liberties issues?
   A   Yes.
   Q   And sometimes the ACLU sets topics for discussion in the chat 
   room, correct?
   A   Yes.
   Q   And, again, those topics would be civil liberties issue 
   A   Yes.
   Q   Mr. Steinhardt, could you turn to Defense Exhibit 155?
   A   Okay.
   Q   Now, the ACLU has posted on line the complete text of the 
   United States Supreme Court's decision in FCC v. Pacifica, right?
   A   That's correct.
   Q   And this is a downloaded version of that on-line posting, 
   A   Yes.
   Q   Now, the full text of the opinion includes the Carlin 
   monologue that was at issue --
   A   Yes.
   Q   -- as part of the Supreme Court's opinion?
   A   Yes.
   Q   And the ACLU is concerned that by virtue of posting the 
   Supreme Court's decision in Pacifica it may be subject to 
   liability under the Communications Decency Act, correct?
   A   Well, we have chosen to draw attention to those words as part 
   of the -- part of the decision, yes, and they also reappear 
   certainly in the America Online bulletin boards.
   Q   But you're specifically concerned about the Pacifica decision 
   to the extent it repeats the Carlin monologue in the Supreme 
   Court's decision, correct?
   A   It got Pacifica in a certain amount of trouble, yes.
   Q   So, you are concerned?
   A   Yes, certainly.
   Q   Now, if you could turn to Exhibit 158?  The ACLU has also 
   posted on line an abridged version, I guess, of the amicus brief 
   it filed in the United States Supreme Court in the Pacifica case, 
   A   Yes.  It's actually the introductory portions of the brief, 
   Q   Right.  And this is what Exhibit 158 is, a downloaded version 
   of that?
   A   Yes.
   Q   And in that brief the ACLU sets forth the so-called seven 
   dirty words from the Carlin monologue, right?
   A   That's correct.
   Q   And, again, the ACLU is concerned that by virtue of posting 
   on line the brief that it filed in the United States Supreme Court 
   in the Pacifica case it may be subject to liability under the 
   Communications Decency Act, right?
   A   Yes.  Again, we are concerned that by having drawn attention 
   to that particular portion of the brief we may be subject to the 
   Communications Decency Act, yes.
   Q   By drawing attention you mean having referenced the Carlin 
   monologue in your Supreme Court brief?
   A   Well, we have as part of our Website a feature which allows 
   individuals who are -- who visit our Website to in effect guess at 
   the seven dirty words and then we take them, after they submit 
   their answers we take them to the Pacifica decision.  So, yes, we 
   have gone about -- attempt -- we do that for a purpose, the 
   purpose is to illustrate that there is a changing view of what is 
   a filthy word or what is an indecent word and that not everyone -- 
   that everyone has a different understanding of that.  But, yes, we 
   have chosen to draw attention to those seven words in the decision 
   as opposed to other portions of the decision.
   Q   Now, the feature you're describing is in Exhibit 156 and 157 
   of the Defendants' Exhibit notebook, right?
   A   Give me one second, please... yes.
   Q   And you're not specifically concerned that those two exhibits 
   are in fact covered by the Communications Decency Act, right?
   A   Not the two exhibits themselves.
   Q   Now, the ACLU has also posted on line an abridged version of 
   the brief it filed in the U. S. Supreme Court in the Cohen v. 
   California case, correct?
   A   Yes.
   Q   Is that at Exhibit 160, Defense Exhibit?
   A   That's correct, yes.
   Q   Now, again, the ACLU is concerned that this brief it filed in 
   the Cohen case in the U. S. Supreme Court may be covered by the 
   Communications Decency Act, correct?
   A   Yes.
   Q   Now, the ACLU does not post or otherwise include in its on-
   line materials sexually-explicit pictures, does it?
   A   Well, not at this point, but that's simply because what we 
   post relates to generally current controversies that are involved 
   in.  So, for example, had this Website been up a few years ago 
   when the Mapplethorpe exhibit, which was a matter that we worked 
   on, was very much a live controversy we would not have hesitated 
   to post those images, which as I recall were both were sexual 
   nature and also some of them excretory.
   Q   You mean posting images of Robert Mapplethorpe's pictures?
   A   Yes, yes, we would not hesitate to do that if it were 
   relevant to a current civil liberties controversy.
   Q   But just so I can get an answer to the question, the ACLU 
   does not post sexually-explicit pictures at this point, correct?
   A   Our Website has only been up for about six weeks, we haven't 
   put any up yet, but we certainly don't have any policy or 
   intention not to.
   Q   Okay.  And you also haven't posted pictures of sexual acts, 
   correct, of couples engaged in sexual acts?
   A   No, but there are postings certainly to the AOL site which 
   are textual descriptions, yes.
   Q   But you haven't posted pictures of couples engaged in sexual 
   A   No.
   Q   And you also haven't posted pictures of excretory activities, 
   A   No, although some of the -- I should add that we have links 
   in our Website, also in AOL to some of the other plaintiffs in 
   this case who do have at least illustrations which are sexual in 
   Q   And which plaintiffs are you referring to?
   A   Well, for example, Planned Parenthood of America has a image 
   on its Website which shows how to properly place a condom on a 
   penis, so that seems to be sexual in nature.
   	MR. BLACKWELL:  Can I have one minute, your Honor?

   Q   You said your Website has only been up for six weeks?
   A   Eight -- I'm sorry, if I think about it the date would be 
   seven or eight weeks since it's been publicly announced, yes.
   Q   How about the AOL site?
   A   Approximately a year.
   Q   Now, individuals can apply for membership to the ACLU through 
   the ACLU's Worldwide Website, right?
   A   Yes.
   Q   And they can pay on-line with a credit card, correct?
   A   Yes.
   Q   In the next few months the ACLU is going to offer merchandise 
   for sale through its on-line site, right?
   A   That's correct, yes.
   Q   Things like books, posters, pamphlets, bumper stickers, 
   things like that, right?
   A   That's pretty much the catalogue, yes.
   Q   And users will be able to buy the merchandise with a credit 
   A   Yes, they will.
   Q   And the ACLU leases space on a secure server to handle these 
   credit card transactions, right?
   A   Yes, we do.
   Q   And by secure we mean that the information, the credit card 
   information that's transmitted is encrypted in some way?
   A   That's correct, yes, although not everyone has a browser 
   which permits them to use a secure server, but about 70 or 80 
   percent do.
   Q   Now, in your affidavit, Mr. Steinhardt -- do you have it in 
   front of you?
   A   If you'll give me a moment... okay.
   Q   Page 15, Paragraph 29.
   A   Okay.
   Q   You estimate there that assuming a level of traffic at the 
   ACLU Website equivalent to that of February, '96, assuming that 
   level of traffic at the site it would cost the ACLU approximately 
   $144,000 per month to verify credit card information for visitors 
   to the site, is that right?
   A   Well, I assumed it for that month since we don't have a great 
   deal of experience so far with the Website, I'm not prepared to 
   estimate the average monthly usage, so that this estimate is based 
   on what it would have cost in that month.
   Q   And the cost was 144,000, correct?
   A   That's correct.
   Q   Now, that figure assumes that the ACLU would be required to 
   verify credit card information for every visitor to the Website, 
   A   It does.
   Q   No matter what any particular visitor actually looks at at 
   the site, right?
   A   We don't -- when a visitor enters the site we don't 
   necessarily know what their intention is, which pages they're 
   going to want to access.
   Q   But the figure does -- would include an individual who just 
   goes to the home page and goes no further, correct?
   A   That's correct.
   Q   That person would be included in your $144,000 figure, 
   A   That's correct, but we have no idea -- no -- at the outset 
   when the person enters the home page whether or not they intend to 
   go to a different page.
   Q   Not every visitor to the ACLU site presumably accesses the 
   posting of the Supreme Court's decision in Pacifica, right?
   A   No, although a large percentage in that initial month did.
   Q   Now, you have participated in the creation of a Web page?
   A   I participated in the creation of the ACLU's Website, yes.
   Q   And you're generally familiar with HTML programming?
   A   Generally.
   Q   And that type of programming is becoming increasingly easy to 
   do, isn't it, in your --
   A   In its simplest forms, yes.
   Q   Now, the ACLU plans to offer in the near future audio 
   transmissions through its Website, correct?
   A   Yes.
   Q   And it plans to offer transmissions of things like speeches 
   and interviews, right?
   A   That's correct, yes.
   Q   And users will be able to hear actually the speech or 
   interview on their home computer, correct?
   A   Yes.
   Q   And the ACLU also plans to use audio capabilities for their 
   chat rooms?
   A   At some point, yes.
   Q   So, users will be able to through their home computers hear 
   themselves conversing in the chat room?
   A   At some point, yes.
   Q   And it also plans to offer in the near future video 
   transmissions through its Website, right?
   A   Well, it depends how you define near future.  The three 
   things you have mentioned, the audio transmissions would be first, 
   and probably the video second, and ultimately the chat rooms would 
   feature some audio capability.
   Q   But you do plan to offer video transmissions at some point 
   through the Website?
   A   We're going to try to keep up with the technology as it 
   evolves, yes.
   Q   And you're going to offer transmissions of things like 
   speeches and interviews?
   A   Yes.
   Q   I'm talking about video now?
   A   Yes.
   Q   And users will be able to see a video of a speech while 
   they're sitting at their home computer, right?
   A   Well, it's my understanding that at the moment the technology 
   hasn't quite gotten there in terms of a good image that's 
   available immediately.  We experimented, for example, on Martin 
   Luther King Day with the possibility of showing a portion of the 
   "I Have a Dream" speech, but at some point, yes, it will get 
   Q   It will get there.  And you expect to offer interactive video 
   features at some point as well, correct?
   A   We haven't discussed that, I don't know.  I would -- I don't 
   Q   Thank you, Mr. Steinhardt.
   	MR. BLACKWELL:  I have no further questions at this point.
   	JUDGE SLOVITER:  Thank you.
   	MR. PRESSER:  One or two, your Honor.

   Q   Mr. Steinhardt, in response to the Government's inquiries 
   concerning whether or not we presently portray pictures on our 
   Websites or on America Online you discussed that we might to the 
   extent that we were involved in particular cases, has the American 
   Civil Liberties Union recently been involved in the Jake Baker 
   A   Yes.
   Q   Can -- for the record --
   	JUDGE SLOVITER:  What case?
   	MR. PRESSER:  For the Jake Baker case, your Honor.

   Q   And, for the record, can you describe for the Court what that 
   case entailed?
   A   Jake Baker was a student at the University of Michigan who 
   was involved in two controversies, which -- arguably which both -- 
   both of which ultimately resulted in an unsuccessful prosecution:  
   He both posted stories, they were clearly fictional works, to some 
   of the alt.sex bulletin boards and he also engaged in what 
   appeared to many of us to have been a -- some fantasy 
   conversations, E-mail conversations, private conversations with 
   another individual who described himself as Arthur Ganda or 
   Uganda, it was probably a pseudonym.  Baker was prosecuted in 
   Detroit on charges essentially of conspiring to commit a 
   kidnapping.  The ACLU did participate as amicus before the 
   district court, the district court dismissed the charges.
   Q   Can I ask you to look at the Government's Exhibit 164 and 
   would you identify that document for me, sir?
   A   Yes, this is a posting to one of our bulletin boards on 
   America Online in which the posters who described themselves, if 
   you look at the from section, it says from the ACLU.  That is not 
   the American Civil Liberties Union, that is another group which 
   stands for Always Causing Legal Unrest, which regards itself as 
   sort of a shadow of the ACLU, and we so far have chosen not to 
   enforce our trademark rights.  The -- and what they have done, or 
   an individual who says that he or she represents them, is to post 
   one of Jake Baker's stories to the ACLU bulletin board.  It is -- 
   we chose to -- and also in the opening paragraph to criticize the 
   ACLU, the American Civil Liberties Union.  We chose to allow those 
   -- that posting to stand.
   Q   And why did we do that?
   A   Because we believe that everyone has a right to free, speech 
   even if we disagree with them, and it certainly would have made a 
   very contrary point had we taken that off.
   Q   And what if any concerns as a result of this posting and as a 
   result of the passage of the law that is in question here do we 
   have about this posting and others of its ilk?
   A   Well, this posting is a very explicit discussion of not only 
   sexual activity, but what I would describe as a rape, and it is -- 
   it initially at least is what resulted in Jake Baker being 
   investigated by the U. S. Attorney's Office in Detroit.  So, this 
   goes I think probably -- arguably goes beyond indecency, but 
   certainly could be regarded as -- by some as indecent.
   Q   Can I get you to look at Exhibits 162 and 163 of the 
   Government's submission?
   A   Okay.
   Q   Can you identify -- let's start with 162, can you identify 
   that document for the Court?
   A   Again, 162 is a posting to one of our bulletin boards, the 
   subject line there, "recently TOSsed," which the letters T-O-S are 
   capitalized, I believe is a reference to America Online's terms of 
   service.  This was a section of the bulletin board in which 
   individuals discussed the America Online terms of service and 
   posted some of them, posted material which either had been or they 
   believe would have been subject to the terms of service.  In 162 
   it's a poem entitled "Jesus Wore High Tops," again it contains 
   explicit sexual language and descriptions.  And I believe you 
   asked about 163 as well?
   Q   163, Mr. Steinhardt.
   A   This is a post -- again, a posting, the subject of which, 
   "Our words are words."  I don't recall specifically which topic 
   area this was in, but I have a concern that the poem at the bottom 
   of the posting, which uses a number of words which might be 
   regarded as indecent, at least one of which I recall is among the 
   seven words in the Carlin case, that goes on to Page 2, that those 
   -- that the posting of this poem might be regarded as an act of 
   	MR. PRESSER:  I have no further questions, your Honor.
   	JUDGE SLOVITER:  Does the Government have any redirect?
   	MR. BLACKWELL:  No, your Honor.
   	JUDGE SLOVITER:  You don't have any question, do you, I mean, 
   as somebody who has litigated in this field for a long time, that 
   these last exhibits would be considered patently offensive to some 
   parts of the community?
   	THE WITNESS:  I... I'm having difficulty understanding 
   precisely what the statute is attempting to reach, but I certainly 
   know that many -- there are many communities in which these 
   postings would be regarded as patently offensive, yes.
   	JUDGE SLOVITER:  These particular ones?
   	THE WITNESS:  Yes.
   	JUDGE SLOVITER:  Now, leaving these aside, because I guess my 
   question was superseded by the last couple of questions of Mr. 
   Presser, I think it might be fair to say that you are an expert in 
   matters relating to free speech and legal affairs relating to free 
   speech in this country, do you -- modesty not withstanding, would 
   you accept that?
   	THE WITNESS:  I'm certainly familiar, very familiar, yes, 
   your Honor.
   	JUDGE SLOVITER:  How realistic or maybe exaggerated do you 
   think your concern and the concern expressed throughout is the 
   concern that if you put Hamlet on line or the Bible on line, which 
   came up in some colloquy between the Court and some witnesses for 
   the plaintiff, that would subject them, one, to being prosecuted 
   and, two, to being convicted?
   	THE WITNESS:  Well, it's been our experience as an 
   organization that represents many people who have been the victims 
   of what we regard as censorship that community standards do vary 
   and that not infrequently the kind of material that the Court and 
   I might view as artistic or as having merit --
   	JUDGE SLOVITER:  Well, talk about yourself and the Court will 
   talk about itself.
   	THE WITNESS:  I'm sorry.  The kind of material that you 
   referenced, your Honor, has been the subject of efforts of 
   censorship, that's the kind of material that has been removed from 
   high school libraries, that is the kind of material that has been 
   removed from public libraries or there have been attempts to 
   remove it from public libraries.  There are many people out there 
   who regard that kind of material as indecent.
   	JUDGE SLOVITER:  How much does it cost, I'm not sure you can 
   give us an answer, how much does it cost for the ACLU to engage in 
   litigation, were it required to, either on its own behalf or on 
   behalf of somebody else to -- well, like this Jake somebody case 
   	JUDGE SLOVITER:  -- Baker case.
   	THE WITNESS:  Well, we were actually amicus in that case, but 
   we have been direct in other cases, including the time for example 
   of a staff attorney on such a case, a case like this one where we 
   have several staff attorneys work --
   	JUDGE SLOVITER:  Well, this one you're a plaintiff in.
   	THE WITNESS:  Yes, but where we have represented other 
   parties we could -- including the time of staff attorneys, the 
   costs can be in the hundreds of thousands of dollars.
   	JUDGE SLOVITER:  In one case?
   	THE WITNESS:  Yes, cases often go on for an extended period 
   of time.  Our attorneys are underpaid compared perhaps to the 
   private bar, but they still -- those of us who are employed in New 
   York still make a fairly healthy salary.
   	JUDGE BUCKWALTER:  Well, I was just reading your declaration 
   and -- 
   	JUDGE SLOVITER:  They don't think so.
   	JUDGE BUCKWALTER:  -- understanding that your admissions -- 
   what was that?
   	JUDGE SLOVITER:  No, that was whether they make a healthy 
   	MR. HANSEN:  Counsel is not prepared to adopt that part of 
   the testimony.
   	JUDGE BUCKWALTER:  No, I wanted the byplay on this healthy 
   salary to continue, but --
   	JUDGE BUCKWALTER:  -- that's all right.
   	THE WITNESS:  You can tell, your Honor, I'm an administrator.
   	MR. HANSEN:  Labor-management problem.
   	JUDGE SLOVITER:  No, Judge Buckwalter was questioning.
   	JUDGE BUCKWALTER:  That's all right.  I was reading your 
   declaration about the mission and the purpose of the ACLU and that 
   it's really contrary -- or that putting any of these defenses into 
   the use is contrary to your mission, I believe you stated.  And 
   you went on to state that if you were forced to bear the cost of 
   restrictions on the use of the Website by the use of -- by a debit 
   account or an adult access code you would shut down the Website, 
   for how long?
   	THE WITNESS:  Oh, I would --
   	JUDGE BUCKWALTER:  I can't -- I mean, you would certainly not 
   envision that you couldn't come back and get the Website up and 
   running again --
   	THE WITNESS:  If we were forced to go for example to credit 
   card verification of persons who use the Website we simply could 
   not bear the expense.
   	JUDGE BUCKWALTER:  You really do?  I mean, after a period of 
   time don't you think you could get the money needed to do that 
   sort of thing?
   	THE WITNESS:  Well, we --
   	JUDGE BUCKWALTER:  I mean, at first, sure, it's going to be 
   an expense, but once you get the program together...
   	THE WITNESS:  Well, there would be ongoing expenses.
   	JUDGE BUCKWALTER:  You're certainly not going to -- want to 
   close your Website entirely for that reason, would you?
   	THE WITNESS:  The problem, your Honor, is that there would be 
   ongoing expenses, both to verify new users who wish to use the 
   site and also to maintain a data base, a list --
   	JUDGE BUCKWALTER:  I understand that.
   	THE WITNESS:  -- of registrants.  And our site has proven to 
   be so far relatively popular.  Given the cost estimates that we 
   have received, the yearly -- it's not possible to know precisely, 
   but the yearly costs could be from our perspective extraordinary, 
   it would dwarf the costs that -- of the site so far.
   	JUDGE BUCKWALTER:  Extraordinary in what -- do you have a 
   percentage of your --
   	THE WITNESS:  Well, as I tried to illustrate in the example 
   that appears in Paragraph 29 of my affidavit, in the first month 
   alone just the transactional cost would have been $134,000, by 
   which I mean the cost of verifying that each of those -- minimum 
   of 67,000 persons who entered our site in fact had a valid credit 
   card, and that does not include any costs that would have been 
   imposed on us by the banks to do that kind of verification, which 
   is something that we cannot estimate at this point because we have 
   been unable to locate a bank which will regularly engage in the 
   verification of non-financial transactions.
   	JUDGE BUCKWALTER:  I suppose if there is a market for that 
   type of thing wouldn't that -- a market for a bank to devise a 
   verification system or something like that, won't the market 
   forces more or less make that feasible in some way?
   	THE WITNESS:  Well, it --
   	JUDGE SLOVITER:  Adam Smith thought.
   	JUDGE BUCKWALTER:  Adam Smith thought, yes, right.
   	THE WITNESS:  If they do -- they don't exist now and I don't 
   know what they would -- I don't know what they would cost.  I do 
   know that they would cost something and I assume they would 
   probably be a flat fee rather than a percentage, since there is 
   nothing to take a percentage of, but I can't speculate at this 
   point, nor could those persons in the credit card industry that I 
   spoke with speculate about what those costs would be, but they 
   would be -- even assuming that they were, say, a dollar, they 
   would be more than we can bear at this point, significantly more 
   than our entire on-line budget.
   	JUDGE BUCKWALTER:  Okay.  It just strikes me as being maybe 
   exaggerating the suggestion, close down your Website forever and 
   ever, I can't imagine in this world a cyberspace that you would do 
   that, that you wouldn't be able to find a way to, you know, keep 
   it going and incur -- and some way make the money for those 
   additional costs.  But I understand the analysis you did seem to 
   suggest at least initially it might be difficult for you to do it.
   	THE WITNESS:  Well, we have limited funds, as do all non-
   profits, and we have to make decisions on how to spend those 
   funds.  We made a decision that the current expenditure that we 
   make on the Website and on the America Online site delivers a 
   sufficient amount of program for the amount of expenditure.  This 
   kind of expenditure at least at this point would not be justified, 
   we would find other things --
   	JUDGE BUCKWALTER:  At least initially it appears that way, 
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  I have a few -- are you done?  I'm sorry.
   	JUDGE BUCKWALTER:  Yes, I am, thank you.
   	JUDGE DALZELL:  A few questions about your materials.  I 
   noticed, I think it was on the Website, that you had a request to 
   your members to communicate with Attorney General Reno about this 
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  Do you know, does she have an E-mail address?
   	THE WITNESS:  I don't know if she has an E-mail address, but 
   I can't resist telling your Honor that we actually at one point 
   published a phone number which we believed was just a general line 
   going into the Justice Department and at least on two occasions 
   that I am aware of Attorney General Reno herself answered those 
   phone calls.
   	JUDGE DALZELL:  Not bad.  Well, what I'm getting as is I 
   noticed in Senator Leahy's supplemental declaration that he has a 
   Website, he has an E-mail address and he says he conducts town 
   meetings on the Internet.
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  Are you aware in the course of your work as 
   to whether other Representatives and Senators do the same thing?
   	THE WITNESS:  Yes.  I couldn't give you an exact percentage 
   at this point, but a significant number of members of Congress 
   have E-mail addresses, some have Websites.  When we ask our 
   members or users of these sites to communicate with members of 
   Congress we offer them several possibilities:  One, if their 
   member has an E-mail address we provide them with that E-mail 
   address --
   	JUDGE DALZELL:  That's what I was going to -- you give them 
   the E-mail address?
   	THE WITNESS:  Yes.  Or we -- or if they have a fax number, 
   they virtually all do, we would send them a fax.
   	JUDGE DALZELL:  All right.  So, as far as based on your 
   personal knowledge, Senator Leahy is not unique in that respect?
   	THE WITNESS:  I think it's far from unique, yes.
   	JUDGE DALZELL:  All right.  With respect to Paragraph 36 of 
   your declaration, do I understand correctly that your Website 
   provides abortifacient information?
   	THE WITNESS:  It provides links to such information, yes.
   	JUDGE DALZELL:  About RU46 --
   	THE WITNESS:  46.
   	JUDGE DALZELL:  -- and that sort of thing?
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  And is that a recent service since February 
   1, 1996, or is that older?
   	THE WITNESS:  Well, on the Website it is, but in our normal 
   course of business litigating in this area we certainly have 
   provided information to both clients, the general public 
   providers, and they have provided information to us, discussing 
   abortifacients and discussing abortion services in general.
   	JUDGE DALZELL:  So, this is a service that you give on an 
   ongoing basis via the Internet?
   	THE WITNESS:  Not only by the Internet, but including the 
   Internet, yes.
   	JUDGE DALZELL:  Okay.  And, lastly, I don't know if you've 
   been here for our discussion about the PICS idea --
   	THE WITNESS:  Yes.  For --
   	JUDGE DALZELL:  Assuming -- pardon me?
   	THE WITNESS:  I'm sorry, your Honor, go ahead.
   	JUDGE DALZELL:  Assuming a PICS rating system becomes 
   operational this summer, would the ACLU rate itself?
   	THE WITNESS:  Well, as I understand the PICS proposal or the 
   PICS system, it's in effect an empty vessel into which third-party 
   rating systems can be put.  And self-rating is not required by 
   PICS, as I understand it, having read their literature.  I don't 
   think the ACLU would choose to rate itself, but I am certain that 
   there are others who would.
   	JUDGE DALZELL:  Well, the reason I ask is because, as I 
   understand the stipulation and the testimony, that the default is 
   that if you don't rate yourself you're blocked, isn't that what 
   you have all agreed to by stipulation?  Well, assume it is --
   	THE WITNESS:  I have not read that particular stipulation, so 
   I don't know.
   	JUDGE DALZELL:  -- therefore, you wouldn't be accessed by -- 
   if you don't rate yourself you won't be accessed by those who 
   block via PICS, correct?
   	THE WITNESS:  I'm just not certain about the factual 
   predicate of that, I don't know the answer.
   	JUDGE DALZELL:  But your point, I take it you're high enough 
   in the hierarchy that you can say with some authority that you 
   would not rate yourself?
   	THE WITNESS:  Well, I had not understood that point that -- 
   that we would be blocked if we failed to rate, but it is my 
   understanding of PICS that there are -- that the user can employ 
   any number --
   	JUDGE DALZELL:  But that's one of them --
   	THE WITNESS:  Yes.
   	JUDGE DALZELL:  -- is the default mode, that if you don't 
   rate, you're blocked, assume that's true.
   	THE WITNESS:  Assuming that's true?
   	THE WITNESS:  I'm not high enough up to make that decision on 
   the spur of the moment.
   	JUDGE DALZELL:  If you were, though, what would it be?
   	THE WITNESS:  I can't answer that, I would have to think 
   about it, it's the first time --
   	JUDGE DALZELL:  And if you had to rate yourself what would 
   you rate yourself, using the motion picture rating system that 
   we've been using here?
   	THE WITNESS:  Well, we think that we offer material that's of 
   important educational interest to minors, so I suppose we would 
   rate ourselves G, but I can imagine that there are other third 
   parties who would rate us X.
   	THE WITNESS:  NC-17.
   	JUDGE DALZELL:  Okay, that's all I have.
   	JUDGE SLOVITER:  I would imagine as a matter of principle, 
   couldn't one deduce from the history of the ACLU, about which I 
   don't know a lot, that you might object as a matter of principle 
   to rating yourselves, whether or not you would rate yourselves G 
   or anything else?
   	THE WITNESS:  Yes, we would object to being forced to rate 
   ourselves, yes.
   	JUDGE SLOVITER:  And we're going to find out more about PICS, 
   Mr. Coppolino promised us that he would educate us on that in due 
   course, I assume.  So, we'll have to put that together with this.
   	Do you have any more?
   	JUDGE BUCKWALTER:  No, I don't.
   	JUDGE SLOVITER:  Counsel?
   	MR. PRESSER:  Nothing further, your Honor.
   	JUDGE SLOVITER:  The Government?
   	MR. BLACKWELL:  Nothing further, your Honor.
   	(Witness excused.)
   	JUDGE DALZELL:  Do I understand, Mr. Coppolino, with respect 
   to the abortifacient provision, which I think is 1462(c)?
   	MR. COPPOLINO:  Yes, your Honor, 18 USC, I believe.
   	JUDGE DALZELL:  The Government -- that part at least of the 
   statute the Government is conceding is unconstitutional?
   	MR. COPPOLINO:  That's what I stated at the TRO hearing and 
   	JUDGE DALZELL:  You did?
   	MR. COPPOLINO:  -- Attorney General Reno has so stated in a 
   letter I believe to both Speaker Gingrich and Vice President Gore, 
   as President of the Senate.  I believe those are in the record, if 
   not I can provide them to the Court.
   	JUDGE SLOVITER:  Yes, but --
   	JUDGE SLOVITER:  -- we just wanted to --
   	JUDGE DALZELL:  I just want to confirm that for purposes of 
   the preliminary injunction -- I know it was for the TRO, but for 
   purposes of this hearing that that is not an issue, because the 
   Government concedes the point.
   	MR. COPPOLINO:  We don't believe it is an issue because -- we 
   have stated that the provision in the Justice Department's view is 
   unconstitutional.  We also indicated, however, at the TRO stage 
   that because the Attorney General has indicated that there would 
   be no prosecutions there could be no demonstration of irreparable 
   harm, and that would be our position as well at the PI stage and, 
   therefore, no need for an injunction on the statute at this stage.
   	JUDGE DALZELL:  All right.  	Anything else?
   	JUDGE SLOVITER:  I guess not.  We will then adjourn, 
   scheduled at the moment --
   	JUDGE DALZELL:  Well, we'll recess --
   	JUDGE SLOVITER:  -- we'll recess --
   	JUDGE DALZELL:  -- until the 12th, but I believe counsel 
   would like to see me -- unless there is something else from the 
   plaintiffs now?
   	JUDGE SLOVITER:  Thank you, Mr. Steinhardt, you don't have to 
   stay there.
   	MR. ENNIS:  No, your Honors, let me simply state that the 
   plaintiffs do not rest because we are going to be calling Mr. 
   Vaysa (ph.) during the time allotted for the Government's case, 
   and there may be a couple of other housekeeping details to take 
   care of then, but that would conclude our live witnesses.
   	JUDGE DALZELL:  All right, very good.  So, why don't we meet 
   in 15 minutes in the robing room for a status conference, counsel?
   	ALL COUNSEL:  Thank you, your Honor.
   	JUDGE DALZELL:  And we'll see you on the 12th at 9:30 for the 
   Government's case.
   	JUDGE SLOVITER:  Lawyers do not rest, period.
   	(Court adjourned at 2:54 o'clock p.m.)

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