The American Reporter v. Reno, Day 1 (April 29)

by Mark Mangan

In the back corner of the space reserved for lawyers and witnesses sat the familiar triumvirate of Schmidt, Baron, and Olsen. Schmidt opted not for the grey flannel, but instead had a grey double-breasted suit, a blue shirt, and a fat flowery tie; Olsen, an academic blue blazer and smug smirk; and Baron, a dark suit and defensive, searching little eyes. Three censors, will travel.

The dingy, closed federal courtroom in Philadelphia paled in comparison to this huge, new Ceremonial courtroom in downtown Manhattan--light, airy, with dark wood and green marble. I was a few minutes early and had the pleasure of overhearing Fred Cherry speaking to one of the only other souls in the room. He nodded towards Olsen, "I think I saw him on Declan's list, the famous censor at the Carnegie Watermelon Institute." He said he wanted to join his case with this one, but "I've been accused of having been put up to this by the ACLU."

Cherry is a thin, bent, wiry old man with thick, matted mess of of grey hair, a dusty presence and a worn, blue raincoat. He has weathered skin and large, carved features--big ears, a prominent nose, a long bony chin, and a bright smile that sparkles in his blue eyes. "Among other things," he pronounced to his audience of one, "I'm a connoisseur of pornography." Randall Boe, an attorney for the American Reporter, entered the courtroom and Cherry jumped up to hand him some papers. Boe thanked him in stride and approached his table.

All rose as the Honorable Denise Coat, Jose Cabranas, and Leonard Sand entered the room. Cabranas sat in the middle and was clearly in charge. From way back in the bleachers he looked a bit like a middle aged Gregory Peck, with a deep, raspy voice. On his left sat Sand, a bespectacled man with a full white beard and a little voice. Judge Coat was petite and generally quiet, but could be clearly heard when she spoke up.

The ACLU/ALA case in Philadelphia has been criticized for being a big mish-mash of a crowd of plaintiffs, who are mere fodder for an even bigger legal team. It is a grand scale effort of sometimes varying agendas. When Joe Shea of the American Reporter filed his suit against Reno he decided not to conjoin it with the ACLU's. Perhaps he felt that the point of his case would be lost in a political struggle, of which he would play no part; perhaps he had a personal gripe with the ACLU.

Regardless, rather than a combined effort by AIDS groups, parenting organizations, publishers of Holocaust information, Gay activists, and any and everyone else caught by the vague language of the CDA, Shea has a single point which drives to the heart of the debate: Is the Internet like print media or like television?

Shea's case focuses on an article recently printed by his Web-based news service in which the author criticized the CDA and mentioned all of the seven dirty words. Putting a timely spin on the comparison of media, Harpers magazine has recently published the exact same article. His case then asks the question, "An article that can clearly be published by print-based news services is now illegal an equivalent service online?" Shea hopes that the judges will be forced to decide explicitly whether the Internet is like the "scarce," "pervasive" broadcast media or like books, magazines and newpapers. It is within this comparison that the the Constitutionality of the CDA must be considered.

For all the grandiose aims and political shuffling I felt like I was simply having an odd case of deja-vu, run at a faster rpm. Up on the panel were three old scholars of the law, which the attorneys for both sides were going to school in new technologies. Only one of these cases can make it to the Supreme Court, so out came Gordon Gallagher of Pencom Systems Incorporated, who hit the ground running--right into acronyms and the alphabet soup of Internet jargon.

Gallagher knew the Internet backwards and forwards, up and down. He soon launched into a mess of TCP/IP, proxy servers, Sun Sparc stations, mail servers, and Web browsers. Judge Sand asked once, "can we can slow down for the computer illiterate?" But the schedule was deliberately breakneck and the task of teaching the intricacies of the Internet in two hours almost impossible. So Bo took it back to the basics and asked Gordon to demonstrate a Web browser. There were seven screens in the courtroom: three for the judges, one for each team of lawyers, one for the clerks, and another for the audience. The proceedings stalled ... Gallagher said they were logged into Schmidt's account and it had shut off after five minutes of no use. Special Agent Schmidt hustled up to fix the problem.

Gallagher took the court on a browser ride to The American Reporter, The Breast Cancer Information Clearinghouse, the Safer Sex page and the Ethical Spectacle. Olsen sat smirking with Baron, as Gallagher occasionally overqualified his answers to judges' questions, delving into the nuances of the technology. Randy Boe, however, was clear and well spoken in his questions, and adept at bringing Gallagher back to the important issues and technological discrepancies. William Hoffman for the Justice Department spent just a few minutes on cross-examination and Gallagher stepped down.

Schmidt, the Air Force computer crime guy, took his oath and was back on the stand, showing the judges just how easy it was to find smut. He gave the same routine as in Philadelphia, holding the judges' hands through the use of the browser, giving an effective layman's tutorial. This time, however, there was less time to fool around with Liberty Bells and legal resources. Schmidt got straight to business--clicking on to a search engine and typing "XXX." Then, instead of searching on "Jasmine," he found some good porno by entering "sleepingbeauty."

As in the ACLU case, Schmidt walked the judges up to the links then pointed them to the printed copy of the site in evidence. At the first lewd stop, Las Vegas Showgirls, the Special Air Force Porn Agent carefully clicked one page shy and referred the judges to what everyone would see if he were to click there. Cabranes looked at the screen and the papers and said "Why don't you just go ahead and do it, for the public interest."

Schmidt was taken off guard and obviously uncomfortable with the idea of clicking onto his favorite smut as the entire court looked on. "You want me to click on it?"

"Yes," said Cabranes.

Soon the seven screens became focal points of the room. Cherry had been alternately nodding off and now perked up and leaned into the public's screen, which sat directly in front of him. The clerks off to the side were now huddled around their screen, like four friends around a campfire. I was a few rows back and had a difficult time seeing past Cherry's disheveled head. There was some kind of woman sprawled back, grabbing herself, and Schmidt was getting increasingly uncomfortable. His lawyer, William Hoffman, a nerdy dude with a high pitch to his voice and a little lisp, jumped in and asked if they could skip hitting the porn links. Cabranes could care less--we were in New York City for fucksake.

"Whatever you think appropriate. That's fine."

Schmidt made it through only half of his testimony before the end of the day. He was not available to continue the next day and will have to finish up his smut tour next week.

In the meantime, the proceedings continue April 30 and Olsen will most likely be back to talk about his ingenuous rating scheme. Everything is moving at a jittery speed and the judges may simply not have a grounded enough understanding in how the Web works to begin diving into rating systems and the like. Everyone's worried about making it first to the hallowed halls of the highest court in the land. In any case, hopefully the time will be taken to do it right.

The CDA pages