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

[Declan McCullagh <declan () well com>]

[My reply follows Patrick's. --Declan]

*********

From: "Patrick A. Trueman" <ptrueman () afo net>
To: <politech () politechbot com>, "Declan McCullagh" <declan () well com>
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: MarkKernes () aol com
Date: Wed, 11 Jul 2001 13:11:26 EDT
Subject: Re: FC: American Family Association continues porn attack on Yahoo
To: declan () well com

In a message dated 7/11/01 1:33:48 AM, declan () well com 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" <athierer () cato org>
To: <declan () well com>
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 (athierer () cato org) 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 <mkabay () compuserve com>
Subject: RE: FC: American Family Association continues porn attack on
  Yahoo
To: Declan McCullagh <declan () well com>
Cc: Patrick Trueman <ptrueman () afo net>

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Dear Declan,

Message text written by INTERNET:declan () well com
>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: mkabay () compuserve com

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
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From: "Thomas Leavitt" <thomasleavitt () hotmail com>
To: declan () well com
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

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