On the third and final day of testimony in the civil libertarian attempt to stop enforcement of New York state's Net decency act, witnesses for the plaintiffs claimed that the statute is overly broad and places an unconstitutional damper on free speech.
Plaintiffs in ALA v. Pataki - including the American Library Association, the American Civil Liberties Union, and the New York Civil Liberties Union - on Monday brought four witnesses into US District Court to counter the state's case.
The New York law is a less-sweeping version of the federal Communications Decency Act. The Empire State statute takes aim at material deemed "harmful to minors" transmitted on the Net while the federal act attempts to ban a more general target: indecent online speech.
Testifying about the law's effect on public libraries, Maurice Friedman, executive director of the Westchester Library System and the ALA's first witness, pointed out that public libraries are specifically exempted from laws making it a crime to transmit obscene printed material to children, but have no such protection in the new state law.
Another witness, Rudolf Kinsky, an artist and member of Art on the Net, testified that he found the statute particularly troubling since he had recently moved to the United States from Poland in order to gain greater artistic freedom. At one point during cross examination, exasperated government lawyers trying to pin Kinsky down to a hard example of what art could be considered obscene, indecent, or even sexy demanded to know whether the somber oil painting of a judge hanging in the Manhattan court room of Judge Loretta A. Preska could be judged even remotely sexy.
"Salvador Dali might think so," opined Kinsky.
Other witnesses included Matthew Ehrlich, host of LAMBDA, a gay and lesbian conference on the East Coast online community Echo, and Barry Steinhardt, associate director of the ACLU. Both testified that an enormous amount of communication that wasn't smutty but might still offend many people took place on their sites.
"Their point was essentially that some people might consider what gets said 'harmful to minors,'" said ACLU staff attorney Ann Beeson. "Ehrlich testified that many people would judge much of what was said in gay and lesbian chat groups as totally offensive, whether it was explicitly obscene or not. And Steinhardt brought up the fact that several ACLU chat groups included discussion of masturbation with regards to [former Surgeon General] Jocelyn's Elders being fired."
Steinhardt also offered up a detailed summary of the reasons Internet age-verification schemes are flawed, focusing two main lines of argument: that credit card schemes almost inevitably exclude adults with bad or no credit; and that forcing sites to pony up the money to institute reliable screening mechanisms creates an undue financial burden.
In a move that some observers considered to indicate that New York state attorneys general James Hershler and Jeanne Lahiff had all but thrown in the towel on arguing the case, the two cross examined Steinhardt for only 20 minutes.
Monday's proceedings concluded the fact-finding section of the case. Oral arguments are scheduled to take place 22 April.
