FC: More on Yahoo and porn from AFA, Cato Institute, Adult Video News

From: Declan McCullagh (declanat_private)
Date: Wed Jul 11 2001 - 21:15:36 PDT

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    [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
    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 
       * 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:
    Patrick of course has a right to complain about Yahoo's business practices, 
    but we also have the right to respond.
    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
    << 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
    Issue #11
    July 6, 2001
    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
    To: Declan McCullagh <declanat_private>
    Cc: Patrick Trueman <ptruemanat_private>
    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
    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,
    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
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    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
    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.
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