response 14 of 111:

May 26 17:02 UTC 1999

I would rather Grex didn't take a position on this or any other 
political question.  If Grexers want to join the ACLU or other 
political advocacy groups and support this sort of agenda, then they 
should do so.  There's no reason to ask all Grex supporters to ally 
themselves with a political position as a condition of being a member of 
Grex.

response 16 of 111:

May 26 19:51 UTC 1999

A non-profit charitable organization can lend its *expertise* to
any issue or legislation. If there will be negative affects of
this litigation upon the otherwise legitimate uses of this communication
medium, even if that affect is indirect (such as stilling speech because
it might be construed to come under the law), then it could be considered
the duty of a responsible organization to point this out. 

For example, a number of charitable non-profit organizations are testifying
against development of the Humbug Marsh by pointing out what the consequeces
of development would be to the fishery, wildlife, endangered species, 
natural amenities, etc. Their tax exemption is not jeopardized by this.

response 18 of 111:

May 27 02:14 UTC 1999

I'm pretty sure that litigation is not advocacy.  Our tax exempt status
does not restrict us from filing lawsuits to avoid being fined $10,000
for pursuing our official purpose.  Grex can't lobby the governor to not
sign this bill, but it can sue.

We can do advocacy so long as it consumes a "non-substantive" portion of
our resources.  Showing the blue ribbon on our web page, counts as
non-substantive.

response 20 of 111:

May 27 17:19 UTC 1999

Hi

I am J.C. Salyer, the ACLU lawyer that sent you the initial e-mail 
about the Michigan Internet Censorship law.  I appreciate you taking 
the time to consider possibly joining in our challenge to this law.  I 
would be happy to answer any questions you have or that someone would 
like to e-mail to me (jsalyer@aclu.org).

From reading the discussion that you have already had about this law, I 
can tell that you understand the kinds of threats a censorship law such 
as S.117 poses to speakers rights to use the Internet.  Not only will 
those individual users who post matterial that is "harmful to minors" 
be liable under this law, but ISPs would be liable if they "have 
knowledge" that they are disseminating such matter.

One consequence of this law is that unpopular speech may be subject to 
a "heckler's veto."  That is to say, someone who disagreed with a web 
sites message (e.g. a gay and lesbian web site) could tell an ISP that 
their child accessed that web site using the ISP's services and that 
they wanted the web site blocked so that the child would not visit the 
site again.  At that point the ISP would have knowledge of a minor 
intending to access material and would be put in the position of being 
a censor or facing prosecution under the law.  Of course, individual 
web sites and chat group participants would also be subject to the same 
sort of "heckler's veto."

response 22 of 111:

May 27 18:30 UTC 1999

My name is Michael Steinberg and I am the legal director of the ACLU of 
Michigan.  Although our office is in Detroit, I am an Ann Arbor resident 
and have lived here for 13 years.  I joined this conference at the 
request of the President of your Board of Directors, John Remmers.  

The ACLU of Michigan is extremely concerned about the free speech 
ramifications of Michigan's recently-enacted law restricting material on 
the Internet (we call it the "Internet Censorship Law").  The law 
applies to any "sexually explicit" material that might be deemed 
"harmful to minors."  Therefore, Internet organizations that engage in 
discussions addressing such topics as sex education or AIDS prevention, 
or art websites that post photos of classic nude painting or statues may 
be liable under the law.  As you know, it is impossible to verify the 
age of those who gain access to the Internet or who are engaged in 
conferences such as this one.  Accordingly, in order to avoid liability 
under the Michigan law, speakers on the Internet would have to reduce 
their level of dialogue to that which is appropriate for my 8-year-old. 
The Courts have struck down laws similar to the Michigan's law as 
unconstitutional because they severely burden access to speech protected 
by the First Amendment and because there are alternatives means to 
prevent minors from gaining access to pornography that are much less 
restrictive of  First Amendment rights (e.g., parental oversight or 
filters).  

For more information about the similar cases that the ACLU has litigated 
across the country, please see the Cyber Liberties page of the national 
ACLU website at http://www.aclu.org/issues/cyber/hmcl.html.  The 
Michigan case will look very much like a New York case entitled, 
American Library Association v Pataki.  There are numerous documents 
from the Pataki case on the website including the complaint, brief in 
support of a preliminary injunction, affidavits or declarations from the 
plaintiff organizations, the court's opinion striking down the statute 
and even the transcripts from the evidentiary hearing.

Since the ACLU of Michigan does not have a large legal staff, we 
primarily rely on cooperating attorneys to handle our major cases.  We 
are fortunate to have Andrew Nickelhoff and Marshall Widick of the 
Detroit firm of Sachs, Waldman, O'Hare, Helveston, Bogas & McIntosh 
serving as cooperating attorneys in this case.  They are excellent 
attorneys and have both won First Amendment cases for us in the past.

We are also fortunate to have the assistance of staff attorneys from the 
National ACLU.  J.C. Salyer, who first approached GREX, is on the 
national staff in New York.  He has worked on ACLU cases challenging 
laws similar to the Michigan law on the federal level and in New York 
and New Mexico.  He has been doing much of the leg work recruiting 
plaintiffs for the case thus far (which non-profit groups, as Larry 
Kastenbaum correctly notes, are permitted to do).  J.C. is also going to 
join this conference and explain what other plaintiffs have signed up 
for the Michigan case thus far.  Because of his expertise, he is also 
better able to answer some the questions posed above that I have not 
answered.

I truly hope that GREX will join our suit as a plaintiff.  As J.C. will 
explain, it is important that we have a wide range of plaintiffs to 
illustrate all the different ways that the Michigan law will impact the 
Internet.  I am aware of your organization from friends in Ann Arbor and 
it is clear that you are committed to free speech on the Internet.  If 
you wish to talk to me over the phone, I can be reached at (313) 
961-7728 (during business hours) or (734) 665-3737.  Thanks.

response 24 of 111:

May 27 18:47 UTC 1999

(Mr. Steinberg slipped in - welcome!)

response 26 of 111:

May 27 20:12 UTC 1999

Let me try and address Mark's question about what being a plaintiff 
entails.  Your primary commitment by participating as a plaintiff would 
be a commitment to lend your name to the lawsuit.  By lending your name 
as a respected organization that serves the community as both a access 
provider to the Internet and as a forum for the free flow of ideas, you 
will help us convince the Court that this kind of censorship is just as 
unconstitutional on the Internet as it has always been in the 
traditional context of print and that it stifles the unique 
democratizing aspects of the Internet.

TIME COMMITMENT:

The commitment to be a plaintiff is also a time commitment -- 
plaintiffs need to be available to provide information for the 
lawsuit.  You might want to designate a member or two of Grex serve as 
a contact for purposes of the suit.

The litigation may be quickly resolved, or may take years to complete.  
Regardless of the duration of the case, you will probably spend no more 
than a week or so providing information for the lawsuit.

Initially, before we file the lawsuit, we will need you to provide us 
with information that will establish your "standing" to sue.  In order 
to establish "standing" to challenge the Michigan law, a plaintiff must 
describe in detail why she, her organization, or her customers are 
personally in danger of injury from the statute.  Thus, a plaintiff 
must provide a few specific examples of content that she communicates 
online (or that her organization or customers communicate online) that 
could be deemed "sexually explicit."  After the lawsuit is filed, we 
may ask you for additional information as it becomes necessary for 
various phases of the case.  Most of this information can be provided 
to us by regular mail, e-mail, or phone, so in-person visits will not 
be necessary.

As part of discovery in the case, the defendants may request answers to 
interrogatories (sets of written questions) or may request to depose 
your organization (reserve a time to ask questions orally).  If the 
defendants do request this sort of discovery, it is unlikely to take 
more than a day or two of your time.

Finally, if the case goes to trial, we may need you to testify in 
court.  This, too, is unlikely to require more than a day or two of 
your time.

COSTS AND FEES:

No financial contribution is required for participation in the 
lawsuit.  We will pay the costs and fees involved in bringing the suit.

If we win the suit, we may apply to the court for reimbursement of 
attorneys fees and costs.  If the court ultimately requires the 
defendants to pay fees and costs, the money will go to reimburse the 
legal organizations rather than to the plaintiffs.

RISKS:

There are very few foreseeable risks to participating in the lawsuit.  
You will receive some publicity from your participation in the lawsuit, 
and may receive calls from the press.  (This can be good or bad, 
depending upon your perspective.)  Supporters of CDA and other 
censorship laws have labeled them "anti-smut" laws and imply in the 
media that anyone who opposes these laws must be in favor of protecting 
smut.  We will, of course, fight an derogatory labeling of our 
plaintiffs with reference to the very legitimate content that they 
provide.  In addition, there is a slight chance that the publicity 
surrounding the lawsuit could potentially increase your exposure to 
criminal liability if the law is upheld as constitutional.  That is, 
your participation in the suit might bring your organization to the 
attention of law enforcement who might investigate your online 
communications.

Finally, there is always the possibility that a court will fine a 
plaintiff for failure to respond to discovery or for misrepresenting 
facts.

I mention these risks for the sake of thoroughness; it is highly 
unlikely that you would actually encounter such problems.

A BROAD ARRAY OF PLAINTIFFS:

In our previous challenges to Internet censorship laws we have been 
joined by a wide range of Internet speakers who have acted as 
plaintiffs.  Plaintiffs have ranged from the American Booksellers 
Foundation for Free Expression and the Internet Content Coalition 
(whose members include CBS New Media, Time, Inc., and the New York 
Times Electronic Media Company) to art and literature web sites such as 
ArtNet and Salon Magazine as well as safe sex web sites.  In our 
challenge to the New York law, we were joined by an ISP called the 
Public Access Networks Corporation ("PANIX") that feared liability 
under the law from both the web sites it hosted and for statements made 
in PANIX chat areas and newsgroups.  In that case we were also joined 
by an ISP called ECHO that feared liability from both web pages it 
hosted and from statements made in the many "conferences" it provided.

In this case, we hope to have a similar broad array of plaintiffs as 
were present in our previous cases.  We have already spoken with 
several Internet content providers that have agreed to join our 
challenge.  For instance, we will be representing web sites that 
provide safer sex and sex education information such as AIDS 
Partnership Michigan and the SexEd.org web site.  We will also be 
representing web sites that provide art and literature over the 
Internet such as Art on the Net, Web Del Sol and Mark Amerika of the 
Alt-X web site.

Because Grex includes conferences on so many subjects and provides free 
access to all, it would be particularly valuable as a plaintiff in 
demonstrating to the court that the Internet truly is a "virtual 
soapbox" where anyone can have their say.  In part, it has been because 
Federal Courts have repeatedly found that the Internet really is a 
"market place of ideas" that they have held that it is entitled to full 
First Amendment protection.

I would also like to address the concern raised by Mark's discussion 
with his stepfather that their are things on the Internet that children 
should not see.  First, as Mark points out, the law makes "sexually 
explicit" matter illegal, but includes within that definition material 
that adults have a constitutional right to read and send to each 
other.  Speech that might be censored by this law includes art that 
includes nudity, literature and poetry, safer sex information as well 
as the speech that is often unpopular such as that of gay and lesbian 
organizations.  When the Supreme Court faced this issue in ACLU v. Reno 
they held that what adults are entitled to see and transmit to one 
another can not be limited to what is appropriate for a child; the 
Court said that such a result would be like "burning down the house to 
roast a pig."  Thus, this law simply sweeps to broadly.

In the lawsuit we will argue that the primary responsibility for 
preventing children from seeing inappropriate material must rest with 
parents and not with the government.  There are alternatives to 
censorship laws for parents who worry about their children accessing 
sexually explicit material on the Internet, such as filtering software 
and ISPs that have accounts just for children, that allow parents 
control what their children see without having the government decide 
what everyone is allowed to see.  Although filters are not perfect, at 
least they allow adults to make their own decisions about what both 
they and their children will see. 

response 28 of 111:

May 27 22:09 UTC 1999

I'm a board member, staff member, current secretary, former president.
I'm reasonably good at composing answers to questions from the
government (I did Grex's 501(c)3 paperwork).  I'm willing to commit a
significant amount of time to this process.

response 30 of 111:

May 27 22:35 UTC 1999

   Speaking as a founder of Grex, staff and board person, I think Grex
should join in on this.

   In most circumstanes I would agree with jep that Grex should stay
out of political things, but this inane law directly challanges the
existence of Grex as it has always been.

response 32 of 111:

May 27 22:49 UTC 1999

The board met in closed session once when I was on the board, to discuss a
dispute with our landlord.  I believe there may have been one earlier closed
session, but it certainly isn't routine.

I think I'm in support of this, as long as the risks to us aren't too great.
Do Larry, or any of the other lawyers here, have any reasons we should not
be a part of this?

response 34 of 111:

May 28 00:40 UTC 1999

So far as the "pornography causes crime" thing goes, I think that's more
than a bit misleading.  The first thing is certainly obvious; showing a
connection is not the same as showing a cause and effect relationship.
It may be that people who happen to be violent are also fond of
pornography, and it may be that they happen to move out of communities
that place restrictions on pornography - but of course, if everyone
restricts pornography, these people aren't just going to vanish because
they have no place to go.  Of course, this may also not be the case; the
above data just isn't enough to draw any broad conclusions about any
causal relationships that may exist.  A more serious problem with this
whole cause-and-effect problem is simply in defining what pornography
is.  There are actually many different types of pornography, and they
have different effects on people.  I read of one study in which the
researchers went through and classified and separated a bunch of
pornographic movies according to type.  One type was basically the sort
that showed people in various sorts of not necessarily standard, but
still very loving situations, in very graphic detail.  The second type
basically portrayed various sorts of acts of violence and non-consensual
relationships, again in graphic detail.  The two forms of pornography
had opposite effects on the subjects; the former tended to inspire the
subjects to feel closer and move loving, the latter made subjects feel
more paranoid and separated from humanity, and less loving.  There are,
of course, also many media subjects which we don't currently restrict,
and which do have a measurable negative impact on their viewers.  TV is
the most obvious example: there are plenty of studies that show that
exposure to all of the various forms of violence and
people-not-being-nice-to-each-other that commonly exist on commercial TV
results in people feeling generally more isolated and paranoid.  I don't
think these people who are interested in eliminating pornography
actually have any interest in making society a better place to live.  If
they were, these people should have been interested in drawing a
distinction between different forms of pornography, and should have been
interested in other expressions of unfair aggression in society, not
just those that appear to be sexual in nature.  I think these people who
are interested in eliminating pornography are really just interested in
imposing their religions and cultural views on everyone else -- and are
really just cosmetically updated puritans.

It is certainly the case that this directly effects grex.  This law, and
the open newuser that is one of the fundemental parts of grex, are
pretty much in direct conflict; I don't see how we can continue to
operate anywhere near the way we do now, if this law were upheld.  In
this respect, grex is somewhat unique, there are very few places on the
internet that give people anywhere as much access with as little
validation.  Given how fundemental this is, I don't see how grex really
has any choice but to fight this law.  --If we were to agree this law
has any validity, then we might as well shut grex down now.  For those
who might still think otherwise, I should say that not only do we have
conferences such as "singles" (with "questionable" material), but we
also have at least one long-time user who has a substantial number of
sexually explicit stories on grex.  These we allow, but we don't allow
images, of any sort, or eggdrop & their ilk, but we still have at any
one time a substantial transient population of both of these.  If grex
staff & board were to be held liable for the behavior of these people,
there's just no way grex could continue to operate as it has, and I
don't see how grex would actually make sense in any meaningful form.

I also happen to think this effects a lot more than just grex, or, for
that matter, pornography & crime.  If a law, such as the above, were to
be held valid, I think this would have very negative consequences for
the US in the long run.  The US didn't just spring out of the ideals of
a bunch of perfect christians after kicking the evil British out.  In
fact, a lot of the founding fathers were, well, "pretty earthy", with
many of the usual sins.  And, the evils they were confronting were not
just those of the british, but were alive and well here in the colonies
as well, and in most cases, were merely the natural results of human
nature.

One of the most important factors leading up to revolutionary war and
constitution, was in fact a very lively discussion of what was proper
and just that was taking place in the coffee houses and newsletters of
colonial america.  I think it is fair to say that the founding fathers
believed these sorts of discussions to be essential to a free and open
society, and that that is why they explicitly put a guarantee of free
speach (and by extension, freedom of the press) in the constitution.
Something to keep in mind is that newspapers of the 1790's were not much
like today's monolithic mass media.  Newspapers of the 1790's were much
smaller affairs, with editors who generally felt far more free to
express even very radical opinions.  The sorts of public forums that can
be found on grex (and elsewhere on the internet) today are actually much
closer to the public coffee rooms and newspapers of 1790s, than to a
modern newspaper or TV network.

The above law introduces a new and very chilling idea into the legal
system, that some ideas are "dangerous", and may therefore be regulated
and controlled.  It is not much of a stretch to go from the idea that
pornography is bad, to the idea that drugs are bad, or that communism is
bad, and that public discussion of these dangerous ideas should also be
regulated.  After that, well, if we're willing to regulate these ideas,
why not regulate ideas such as the KKK, ecology, liberalism, feminism,
and, while we're about it, why not regulate all public speech, just in
case?

I don't think the founding fathers would necessarily be susprised to see
laws like the above passed -- I think most of the founding fathers came
to realize that freedom and liberty was not something that had to be
fought for once and that would then survive on its own, but that instead
it would be a constant battle, something that would have to be fought
for anew, each generation.  We have every right to be disappointed in
our state government for passing such an ill-conceived piece of
legislation, but I guess we should feel proud for having this
interesting opportunity to defend the principles of this country, in
seeking to secure the continuation of what is, after all, a pretty nifty
corner of the internet.

response 36 of 111:

May 28 02:30 UTC 1999

Re #26:  Thank you, jcs, for that long response.  It contained a thorough
answer to my question of what Grex's responsibilities are.

Based on what I've seen, I think Grex should join the suit.  I'm Grex's
treasurer, and have been for the last 3.5 years, and like Jan I'm willing
to devote some time to working on the case.