[My reply follows Patrick's. --Declan] ********* From: "Patrick A. Trueman" <ptruemanat_private> To: <politechat_private>, "Declan McCullagh" <declanat_private> Subject: Re: American Family Association continues porn attack on Yahoo Date: Wed, 11 Jul 2001 13:56:00 -0400 Declan, Thank you for your thoughts on this matter. I disagree with your legal position that: "fantasies that Patrick finds distasteful are still protected by the First Amendment." Sexually explicit material, whether in writing or pictures, etc., may be found to be obscene. Whether the specific material I have identified is obscene is for a jury to decide should someone decide to prosecute. The larger question is whether Yahoo! or any public corporation should be facilitating those who enjoy fanaticizing about raping a woman (or enjoy the other material that I have been identifying for the past three months). That is a decision that Yahoo! must now make since the issue has been called to public attention and is now part of a national conversation. Patrick Trueman ********* I thank Patrick for continuing this dialogue. He correctly says that my statement is not nuanced enough. Permit me to reword it to say "fantasies that Patrick finds distasteful are still protected by the First Amendment, and courts are almost always sure to agree." Let's also note that not all U.S. states have enacted obscenity laws, and the situation internationally is even more complex. The problem is that Patrick muddles the issues. There are a number of severable ones, including: * Which jurisdiction are we talking about when deciding whether images or graphics on Yahoo's discussion groups are obscene or not? An extremely conservative jurisdiction where the images can be viewed? Or the permissive California jurisdiction where Yahoo's servers are located? * Should the most restrictive standard apply? We know that Ohio's law bans "obscene" private writings that describe even people in their late teens. * Should Yahoo be held responsible, legally or in the court of public opinion, for what its users do in areas they can create without Yahoo's approval? * Is Patrick upset about what I'd call hardcore porn that does NOT violate obscenity laws, or just the stuff that does? (It seems to be both.) * What does Patrick do when he finds child porn on Yahoo's site, as his press release says exists? Even the mere possession of it even for an instant is a felony, and deleting doesn't make that crime go away. :) Also, some conservatives have written to me saying that AFA is simply exercising its free speech rights. That's not all they're doing: Patrick is lobbying for the DOJ to spend tax dollars in prosecuting Yahoo executives: http://www.politechbot.com/p-02156.html Patrick of course has a right to complain about Yahoo's business practices, but we also have the right to respond. -Declan ********* From: MarkKernesat_private Date: Wed, 11 Jul 2001 13:11:26 EDT Subject: Re: FC: American Family Association continues porn attack on Yahoo To: declanat_private In a message dated 7/11/01 1:33:48 AM, declanat_private writes: << "Yahoo!'s "Rape Stories Fantasy" Club should be shut down immediately," said Patrick Trueman of American Family Association. The club contains photos titled "Raped" and "Group Rape" showing scared-looking, naked women handcuffed, bound, held down and raped. The club is described on Yahoo! as "a great place to exchange rape stories and fantasies." Here is a portion of one story:" I stand in the bushes and watch you fumble with you keys… You should know better than to not have them ready when you go into the house" … I throw your lifeless body over my shoulder and carry you into the house. I tie your four limbs securely to the bed. I grab my knife…["]>> Y'know, I'd swear these guys get off on this crap. Now, if only I could prove it!... << Child pornography can still be found on Yahoo! "It appears that Yahoo! is providing free space in its clubs and GeoCities sites for many for-profit child pornography web sites", said Trueman. Pictures of children in sexually explicit poses are provided in some and all have links to sites outside of Yahoo! that offer child pornography.>> Someone should tell Trueman that 18- and 19-year-olds are still "teens." If in fact there were links to actual child porn, those owning the links should be prosecuted -- and Trueman, as an ex-Justice Department prosecutor, knows that and knows how to deal with it... so why doesn't he? Answer: Because the AFA makes big hay (read: money) out of screeds like this. << "Yahoo! should not be allowed to profit from the sexual exploitation of children and women." Trueman said.>> Assuming for a moment that the "children" are legal teens, and that people getting paid to pose nude is a legal business, one has to ask: "Why shouldn't it? Everyone else does... including, since this stuff plays such a big part in their fundraising, the AFA!" Cynically yours, Mark Kernes, Adult Video News ********* From: "Adam Thierer" <athiererat_private> To: <declanat_private> Subject: RE: American Family Association continues porn attack on Yahoo Date: Wed, 11 Jul 2001 12:52:57 -0400 Declan: This appears to be just another part of the renewed push by conservatives to get the Bush Administration to step up censorship efforts. I documented this disturbing trend, and explained why it was so wrong-headed, in the most recent edition of the Cato TechKnowledge newsletter. Feel free to post this if you like. I'd love to hear how conservatives respond. - - Adam Thierer - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Cato Institute TechKnowledge newsletter (www.cato.org/tech) Issue #11 July 6, 2001 NEW WIND IN THE SAILS OF THE CENSORSHIP CRUSADE? by Adam Thierer Indecency and obscenity are in the news again. Of course, it's difficult to recall a time when they weren't in the public eye, both literally and figuratively. America's love-hate relationship with pornography ranks as one of great paradoxes of this country's history. While a deep puritanical streak runs throughout America's history and culture, it is equally clear that Americans possess a seemingly insatiable appetite for materials of a prurient nature. Nowhere is this more evident than in cyberspace. Despite the many informative Web sites, interactive tools, and unique business services that are available online, the adult entertainment industry is the only consistently profitable commercial sector on the Net today. And that isn't happening because a handful of perverts with big bucks are keeping all these "XXX" sites afloat. It is a mass market phenomenon, with tens of millions of Americans surfing the Net for adult-oriented fare. But while the phenomenon makes for interesting discussion in college sociology classes, the real question is: What, if anything, should public policymakers be doing about it? Legislators and regulators are always engaging in political grandstanding and demagoguery on the issue, claiming that they "need to clean up TV and the Internet," usually "for the sake of our children." Rhetorical sermonizing is one thing, but regulatory activism is quite another. And if the recent words and actions of certain conservative groups and Bush administration officials are any indication, the pro-censorship forces appear to be readying a new push to police pornography and regulate obscenity. For example: * Patrick Trueman, director of government affairs for the American Family Association, has called for the prosecution of Yahoo!'s corporate leaders since he feels the world's most popular Internet portal is providing obscene materials on its site. On the AFA's Web site, Trueman says, "This is something either the Justice Department will handle, or we will continue to up the ante with the Justice Department, providing them inescapable proof Yahoo! is trafficking in illegal material. So we're going to keep at this until there is a prosecution, or at least an investigation of Yahoo!" * Wired News recently reported that the AFA, along with 12 other pro-family groups and two Republican members of Congress, Reps. Steve Largent (R-Okla.) and Christopher H. Smith (R-N.J.), met with Attorney General John Ashcroft in late May to encourage the Department of Justice to step up obscenity prosecutions. They were apparently seeking to hold the administration to promises President Bush made while campaigning for office that he would vigorously enforce obscenity laws. * One of the individuals involved in the Ashcroft meeting, Bruce Taylor, president of the National Law Center for Children and Families, told The Industry Standard before the meeting, "If I was a prosecutor, I'd be like a kid in a candy store," when referring to the prosecution opportunities he feels are available to the current administration. * After the May meeting with the coalition of pro-censorship groups, Attorney General Ashcroft testified before the House Judiciary Committee in early June and declared that the Justice Department would be increasing its efforts to assist state officials bent on imprisoning the operators of sex sites that feature obscene images. "We try to be especially accommodating to local law enforcement to assist [state officials], and I would think that would be an objective of ours in this respect," said Ashcroft. * Meanwhile, in early April, the Federal Communications Commission issued a bizarre set of policy guidelines outlining what qualifies as "indecent" speech on radio or television. The case comparisons used in the FCC policy statement are so vague and oftentimes contradictory that it led noted First Amendment attorney Robert Corn-Revere, a partner at the Washington law firm of Hogan & Hartson, to note that "the FCC's broadcast-indecency standard remains today just what it was before the commission issued its guidance to the broadcast industry: clear as mud." The FCC has also issued a number of high-profile fines in recent months for supposed indecent radio broadcasts. In sum, it appears that a renewed censorship effort is underway by many religious activists and conservative leaders, aimed at getting the Bush Administration to take up the pro-censorship crusade on their behalf. These efforts seem a bit ironic, however, given that conservatives are fond of talking about "parental responsibility" but seem to want to pass the buck to Big Government when it comes to controlling their children's viewing or listening habits. Some conservatives argue that the Internet is just such an intrusive technology, and is so readily accessible to children of all ages, that legislators must step in and help shield children's eyes from potentially offensive materials. Of course, in years past, they've said much the same thing about television, radio, cable TV, and even comic books, so in one sense, their tune hasn't changed all that much. Moreover, how intrusive is the Internet in reality? After all, parents must first purchase a computer, obtain an Internet access provider, set the system up, log on, and take a host of other steps before the Net is available to their children. If parents have taken such steps to bring this technology into the home, they should not then expect regulators to assume the remainder of their parental obligations once the kids get online. Conservatives are also fond of making the argument that only political speech deserves strict First Amendment protection while other forms of speech and expression do not. As the Family Research Council Web site flatly states, "Free speech has nothing to do with pornography or nude dancing or cuss words. That stuff has the serious potential to stir up bad things." Not exactly profound legal logic, but their point is nonetheless clear: policymakers should feel free to censor any forms of nonpolitical expression, especially those of a sexual nature. But this argument has always been based on a false distinction and shaky legal logic. All forms of speech and expression are important and deserving of protection by the First Amendment unless the rights of an individual are violated in the process. Which leads to a final point about conservatives who favor censorship: they often group all sexually related activities and Web sites together in an attempt to craft blanket prohibitions. This is not good public policy. Most adult entertainment Web sites allow consenting adults to enjoy sexually related materials without engaging in behavior that poses harm to others. Online cyber-stalking or sites that traffic child pornography are different; rights are violated in these cases, and legal sanctions are appropriate. In the name of "protecting children," policymakers oftentimes end up treating us all like juveniles. The conservative groups and political leaders that are encouraging this renewed censorship crusade need to start taking their own first principles of personal responsibility and parental decision-making more seriously. -- Adam Thierer (athiererat_private) is the director of telecommunications studies at the Cato Institute in Washington, D.C. This article is available online at http://www.cato.org/tech/tk/010706-tk.html . To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html. ********** Date: Wed, 11 Jul 2001 15:25:24 -0400 From: Mich Kabay <mkabayat_private> Subject: RE: FC: American Family Association continues porn attack on Yahoo To: Declan McCullagh <declanat_private> Cc: Patrick Trueman <ptruemanat_private> -----BEGIN PGP SIGNED MESSAGE----- Dear Declan, Message text written by INTERNET:declanat_private >Now anti-porn groups can come back every week (Patrick has >sent me at least two very similar press releases recently), >identify discussion groups that are purportedly offensive, and >compel Yahoo to take action. Since discussion areas can be >created without human intervention, it's an infinite loop. And >even if Patrick is successful, he'll merely succeed in driving >the participants back to Usenet. < In what possible sense is the migration of hateful people into the ghettos of the USENET a Bad Thing? Making it harder for such folk to express themselves seems like a Good Thing to me as long as it is not through government action. When I hear homophobes and racists speaking in public, I speak to them to express my revulsion at their language, even when it can be dangerous to do so. When I encounter people who write and speak offensively about women, I protest their language. This practice is known as "applying social pressure" and is one of the ways that people help to define norms of acceptable and unacceptable speech and behavior -- and yes, there _are_ legally-protected forms of speech that are nonetheless socially unacceptable in a given context. Just because it is _not illegal_ to say that all Gorophians have their norbili stuffed up their cranial otylimumpules is no reason expect to get away with saying such a vile thing among civilized people. >Finally, if child porn exists, that's one thing -- but >fantasies that Patrick finds distasteful are still protected by >the First Amendment and perhaps even Yahoo's terms of service.< > As for your including the First Amendment in your comments -- is it not correct to state that there are no legal constraints whatsoever on the restrictions that may be imposed on subscribers by an Internet service provider and Web hosting system like Yahoo and GeoCities? First amendment restrictions apply to government action, not to pressure groups and corporations. I suppose that if a firm wanted to, say, limit all communications to words devoid of the letter "e" they could do so perfectly legally. Might lose some customers, but it seems to me that it would be neither illegal nor immoral. [I am not a lawyer and this is not legal advice.] Suppose you ran an office building with a vacant office and neo-Nazi hatemongers proposed to rent it; would you have any difficulty whatsoever in refusing to do business with them? Years ago, my colleagues and I were asked to help a business protect their intellectual property against copyright violations. We quickly discovered that the property was pornography; we respectfully declined to take the contract. You have a problem with that? - From the 1960s to the end of the 1980s I boycotted goods from South Africa and urged others to do so too. Thousands of people cooperated to shame corporations into banning the fruits of the apartheid regime because we saw apartheid as a crime against humanity. Today, I refuse to do business with corporations which abuse workers making sports equipment, growing coffee and so on. I not only exercise my personal freedom in choosing with whom to do business, but I also write letters to those companies protesting their support of what I consider outrageous behavior. I talk to others about it; I send letters to friends; I'm sure that some find me a royal pain in the ass for nattering on about these things. But there is nothing in law nor in morality which would even suggest that I ought not to do so. Does this mean that people with whose opinions I disagree should also be free to express their disapproval of what corporations and other organizations are doing? Damn right. I despise sexist, racist, violent speech -- but I don't argue for government action to shut it down in the USA. I don't agree with anti-abortion fanatics, either, but I do not propose preventing them from boycotting companies or hospitals which provide abortions. Supporting free speech means supporting the right to speech with which we disagree. Why are the AFA's actions in any way more or less reprehensible than the anti-apartheid, the US civil rights or any other movement's actions in fighting perceived abuse? In all these cases, people are acting peacefully and legally to apply pressure to corporations to stop supporting what they see as objectionable behavior. They are, indeed, exercising their right to free speech. More power to 'em, I say. Best wishes, Mich M. E. Kabay, PhD, CISSP Associate Professor of Computer Information Systems Norwich University, Northfield VT < http://www.norwich.edu > Security newsletters and papers at < http://www.nwfusion.com/newsletters/sec/ > < http://www.securityportal.com/kfiles > 255 Flood Road Barre, VT 05641-4060 V: +1.802.479.7937 E: mkabayat_private The opinions expressed in any of my writings are my own and do not necessarily represent the position of my employer. [You may publish my comments verbatim (always including the digital signature) if you wish.] -----BEGIN PGP SIGNATURE----- Version: PGP Personal Privacy 6.5.8 Comment: Digital signatures increase security for everyone. iQB1AwUBO0ykfzPd6/an40lzAQFqhQMAsj3Jb0NgXvM6OaqkpCMEyWCX+vZnSkg1 T4GN0EhzyItVQ1BEviUMO//DDRicww999FVjJN9zSMbzVSAfdDGGwukf28LOVzhq 1kmI2Ka4rwBNztbDqrFILN5WvlnDGw8e =y7kq -----END PGP SIGNATURE----- *********** From: "Thomas Leavitt" <thomasleavittat_private> To: declanat_private Subject: Re: FC: American Family Association continues porn attack on Yahoo Date: Wed, 11 Jul 2001 11:22:43 -0700 Declan, I don't get the reasoning that equates an "orgy", which is a mutually consensual activity, to rape and the sexual abuse of children? And "teen" is a code word in the adult entertainment industry for 18+... only the truly naive think any of the commercial "teen" porn web sites have minors on them. Also, I find it curious that they never include links, or any other mechanism by which third parties can verify their claims, especially in the kiddie porn claims... all we ever heard is generic rants about offensive materials. You'd think that posting URLs to this stuff would motivate Yahoo to wipe it out. Someone should call them on this, and demand that they document their claims, with screen captures and web site URLS. Otherwise, this might as well be a generic template filled in with the "offensive site of the week". Further more, I have to say that I've complained about dozens of sites that violated Yahoo/Geocities AUP, and they were never less than prompt about wiping them out, usually within 24 hours. Any large scale free web hosting service is always going to have a certain percentage of sites not yet noticed that violate it's AUP. Yahoo might as well shut down now, if the AFA wants their servers to be pure and pristnie of this stuff. Hell, I've even run accross adult and otherwise AUP violating material on "Christian" free web site hosting service. Thomas *********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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