IP: Why Rimm Mattered

[David Farber <farber () cis upenn edu>]

Date: Fri, 27 Jun 1997 19:18:11 -0700
From: Mike Godwin <mnemonic () well com>






This is a posting of mine from the WELL that might help put some things in
perspective.


Topic 1422 [media]:  Rimmember When?
#156 of 156: 664/668: The Neighborhood of the Beast (mnemonic)      Fri Jun
27 '
97 (18:51)   129 lines




 With all due respect for Jack, who is usually right about Constitutional Law
 issues, he's dead wrong when he characterizes yesterday's victory as a
 slamdunk based on the precendents alone.


 The law was always in our favor, yes, but the balance of the factual
 findings was absolutely critical. And when you know that, you know why
 the religious right had invested so much in Rimm's success.


 Had Rimm published his article and it had remained unrefuted (or, I'm afraid
 to say, even if it had been challenged for its methodological flaws but the
 underlying dishonesty of it had never been discovered), yesterday's decision
 could easily have gone the other way.


 Here's what Jack is forgetting:


 The CDA had already passed in the Senate when Sen. Chuck Grassley, timing
 his announcement with advance knowledge of the GLJ article and of the Time
 cover story, called for separate indecency ban -- this one very, very
 similar to the CDA, but slightly different in the degree to which it focused
 on system operators. He called hearings -- set for four weeks from the day
 of the Time cover story. Rimm was to be the star witness.


 Now, no one, not even Grassley aide John McMickle, was able to explain why
the
 Grassley bill was even necessary, given the passage of the CDA. But we now
 know why it was necessary -- it was *necessary to have a bill that had
 passed as the result of Congressional fact-finding in order to establish a
 factual record that would inoculate the censorship provisions that would
 otherwise be easily struck down.*


 Rimm's article thus was a linchpin of the strategy -- Marty makes national
 headlines claiming not only that there's porn on the Internet (which no one
 disputed) but that the pornographers are ACTING IN AN ORGANIZED,
 MANIPULATING WAY AND CULTIVATING MORE AND MORE EXTREME TASTES IN CONSUMERS
 FOR VIOLENT, DEGRADING, DISGUSTING, AND PSEUDO-CHILDPORN IMAGERY. In other
 words, Marty's piece was necessary because it identified a purported crisis
 and shocked readers into instinctive reactions, all the while passing itself
 off as objective research.


 Now, one of the things you must know is that bad sociological research is
 hard to refute in any final way, even on a good day. (Just about the only
 way to sink it is to reveal that the researchers were dishonest or corrupt,
 which, "luckily enough," happened to be the case here.) Let's assume that
 the Atlantic City Press never reveals the dirt about Marty's conman past.
 The scenario then plays out this way:


 Rimm testifies. The study is criticized by Hoffman and Novak, repeatedly,
 and most researchers refuse to take it seriously, but he has a few
 defenders, mostly from CMU, and Congress adds his testimony to the permanent
 record. The Grassley bill passes easily, even though it's redundant, because
 who wants to vote against a bill aimed at stopping the pornographers from
 taking over the Internet? Then either the Exon bill or the Grassley bill or
 both become part of the Telecom Reform Act of 1996, signed into law by
 President Clinton early in 1996. ACLU, EFF, and others file an early
 challenge seeking to stay enforcement, but Judge Buckwalter in this scenario
 has this detailed legislative history in which Congress identified the
 urgent problem it was addressing, and it is this he weighs against the
 plaintiffs' worries about a chilling effect. Maybe we still get the TRO, but
 maybe we don't.


 Three weeks later, ALA weighs in, leading a somewhat smaller coalition of
 publishers and industry types (not everyone is willing to challenge the Rimm
 study or Congress, because it involves going into detail about what Marty
 got wrong, which means talking about anal sex, Japanese girls with dildos,
 and everything else Marty detailed in his article). Time, basking in the
 glow of having identified a genuine social trend BEFORE it happened for
 once, keeps the pump primed with followup stories.


 Maybe we win in Philly, but on narrower grounds (we still have lots of
 stipulated facts, but the district court also has the Rimm testimony in
 Congress PLUS the Rimm article PLUS all the other articles in the GLJ that
 praised it). We go up to the Supreme Court on what we do win (what we lose
 has to be appealed through a slower appellate process), and then oral
 argument goes rockily, with lots of discussion of Congress's findings,
 even in these days in which legislative-history arguments are unfashionable.
 We're fighting to keep our children safe from porn, after all.


 A narrow majority votes to uphold the statute, with the opinion assigned to
 Stevens, J. Stevens, who has said in public that Pacifica would have gone
 the other way had the radio station argued the issue of whether there was
 any evidence of significant harm, can't make such a statement about Reno,
 can't say in this scenario the kinds of things he said in yesterday's
 opinion. You remember -- all the stuff about the absence of any
 Congressional findings, of any evidence of harm, of any hearings at all.


 [Here's the relevant text from Reno v. ACLU:


 "The Act includes seven Titles, six of which are the product of extensive
 committee hearings and the subject of discussion in Reports prepared by
 Committees of the Senate and the House of Representatives. By contrast,
 Title V-known as the "Communications Decency Act of 1996" (CDA)-contains
 provisions that were either added in executive committee after the hearings
 were concluded or as amendments offered during floor debate on the
 legislation. An amendment offered in the Senate was the source of the two
 statutory provisions challenged in this case.... Particularly in the light
 of the absence of any detailed findings by the Congress, or even hearings
 addressing the special problems of the CDA, we are persuaded that the CDA is
 not narrowly tailored if that requirement has any meaning at all....  As a
 matter of constitutional tradition, *in the absence of evidence to the
 contrary*, we presume that governmental regulation of the content of speech
 is more likely to interfere with the free exchange of ideas than to
 encourage it.' (Emphasis mine -- MG]


 Instead, Stevens, who, after all, upheld the right of the government to
 censor content with a far more dubious record than this one -- the facts
 in Pacifica are now known by most legal scholars to have been invented --
 would hold that Congress could reasonably have found that this particular
 crisis was so urgent, and the governmental interest so indubitably
 justified, that the incidental restriction on free speech wrought by the
 CDA would simply have to be tolerated. After all, as he said in Pacifica,
 adults can get indecent content somewhere else.


 Now, maybe it would not have gone this way even if the Rimm/Time scandal
 had not surfaced. But the Supreme Court makes a fetish of deferring to
 Congressional fact-finding, especially when the underlying goal
 (protecting kids) is understood to be a valid one, and especially when it
 involves speech that (one might believe) is arguably of marginal value (as
 Stevens held George Carlin's comedy monologue to be).


 I hate to be the one to have to correct you on this, Jack, but if Rimm
 hadn't been nuked, and if the full extent of his fundamental dishonesty
 not begun to emerge quickly enough to stall the Grassley bill, free speech
 on the Net could have been toast.




 --Mike




----------------------------------------------------------------------------
'Indeed, the Government's asserted "failure" of the Internet rests on the
implicit premise that too much speech occurs in that medium, and that
speech there is too available to the participants.  This is exactly the
benefit of Internet communication, however.  The Government, therefore,
implicitly asks this court to limit both the amount of speech on the
Internet and the availability of that speech.  This argument is profoundly
repugnant to First Amendment principles.'
   --Judge Stewart Dalzell, ACLU v. Reno.


      Mike Godwin, EFF Staff Counsel, can be reached at mnemonic () eff org
                   or at his office, 510-548-3290.
----------------------------------------------------------------------------