IP: Martin Rimm and the Antiporn Activists -- from the EFFector

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

From: Mike Godwin (mnemonic () eff org)
Subject: Who's Using Who?


Martin Rimm and the Antiporn Activists
-----------------------------------------------------------------


To those who have been investigating the scandal behind the
fraudulent Martin Rimm/Carnegie Mellon "cyberporn study" and the
Time magazine cover story that hyped it, it's long been known
that there was some kind of connection between Rimm's efforts
and those of antiporn activists -- particularly those on the
Religious Right.


But the precise nature of the connection has not been clear
until recently. Thanks to information provided by New York Law
School professor Carlin Meyer and others, it is now apparent
that Rimm had the assistance of antiporn activists, including
Bruce Taylor of the National Law Center for Children and
Families.


Thus, at the same time Rimm, himself no fundamentalist, was
using the antiporn activists to contrive a place for himself on
the national stage, the antiporn groups were using Rimm to
manufacture evidence that "cyberporn" was out of control and
needed to be regulated.


Figuring out the connection between Rimm and the Taylor gang is
like assembling a mosaic from very numerous and very tiny
pieces. Still, the whole picture begins to come together once
one notes certain interesting facts:


1) On November 5, 1994, Marty posted a message in a public
Usenet newsgroup that included the following response to Carl
Kadie:


'You're a good guy, Carl. I'm the principle investigator of the
study, "Marketing Pornography on the Information Superhighway."
It is being refereed and had the assistance of a lawyer who has
argued obscenity cases before the Supreme Court.'


2) Footnote 93 of Marty's article includes the following text:


'Another competing vision consists of a revised version of the
Miller standard. Instead of using community standards, the
proponents of the revised Miller standard advocate the creation
of a per se list of sexual activities which are automatically
and irrevocably deemed obscene. See Bruce A. Taylor, A Proposal
for a Per Se Standard, 21 U.Mich. J.L. Ref. 255 (1987-88).'


3) The Bruce Taylor article appears in the same volume of the U.
of Mich. Journal of Law Reform that includes the Dietz-Sears
study, upon which Marty based his own study (see, e.g., Rimm
footnotes 15 and 56).


4) After ordering a copy of that volume of the Journal of Law
Reform, I discovered the following language in footnote 13 of
the Bruce Taylor article (in which Taylor also boasts of his 15
years of experience in prosecuting obscenity):


"In all, this author has tried over 65 obscenity jury cases in
several states and has argued over 50 appeals before the Ohio
Court of Appeals, the Ohio and Colorado Supreme Courts, United
States Courts of Appeals for the Sixth and Ninth Circuits, and
the United States Supreme Court."


5) Bruce Taylor is currently heading the National Law Center for
Children and Families. This means he *currently* shares a
Fairfax, Va., suite of offices with H. Deen Kaplan.


6) Kaplan, as we have long known, is a) a third-year law student
at Georgetown, b) a vice president of the National Coalition for
Children and Families (formerly the National Coalition Against
Pornography, aka NCAP), and c) a member of the Georgetown Law
Journal staff throughout last year and currently on the
journal's articles-selection committee.


7) Bruce Taylor's organization, the National Law Center,
formerly employed John McMickle, who is now on the staff of Sen.
Chuck Grassley and who was the author of Grassley's
net.indecency legislation. McMickle, who, according to Danny
Weitzner of the Center for Democracy and Technology, is known to
be a protege of Taylor's, was the person who had advance
knowledge of Marty's study (this is clear from a letter McMickle
sent to university administrators at Rimm's alma mater, Carnegie
Mellon, in early November of last year), and who later planned
to call Marty as a witness to Grassley's Senate hearing. A year
ago at this time, McMickle was sharing offices with Deen Kaplan
in Fairfax, VA. The various antiporn groups at that suite (The
National Law Center, the National Coalition, and Donna
Rice-Hughes's group, "Enough is Enough!") apparently prefer to
office only with likeminded individuals.


8) Deen Kaplan is known to have provided Sen. Jim Exon with the
"blue book" of online porn that the Senator brandished on the
Senate floor.


9) Sen. *Grassley's* indecency legislation was introduced on
June 6 of this year, at approximately the time the issue of the
Georgetown Law Journal was originally set to be published.
Hearings on the Grassley legislation were set for July 24.
Coincidentally, perhaps, that was four weeks to the day after
Time's "Cyberporn" cover story hit the streets. Or perhaps it
wasn't purely coincidental -- Rimm seems to have known in March
that his study would be featured in a Time cover story.


10) Increasingly during the spring of 1995, Rimm expressed
concern to many people that his article might be perceived as
anti-porn, and he redoubled his efforts to get his legal
footnotes approved by civil-libertarian lawyers, including me,
Danny Weitzner of Center for Democracy and Technology, and
Stephen Bates, then an Annenberg Fellow.


11) Perhaps in the knowledge that the source of help on the
legal footnotes could result in his study's being branded as a
political, antiporn document, Rimm stressed the following in his
request to me in April:


"In the meantime, we would greatly appreciate an independent
check of our legal notes, which the journal helped us with. (No
one on our team is a lawyer)."


12) In the December, 1994, version of the study, which had
undergone no editing by any of the law journal staff, we see the
following text in footnote 53:


'The second of the competing visions consists of a revised
version of the Miller standard. Instead of using community
standards, the proponents of the revised Miller standard
advocate the creation of a per se list of sexual activities
which are automatically and irrevocably deemed obscene. Bruce
Taylor, A Proposal for a Per Se Standard, _______ J.L. Ref.
______ (1988).'


13) Except for minor changes, the sentences from footnote 53 in
the December version are echoed in footnote 93 of the final
version of the Rimm study. The main difference is that the
citation for the Bruce Taylor article is not complete in the
older draft. The most reasonable inference from this fact is
that the person who added that citation was pulling it from
memory, and left blanks so that the cite checkers at the law
journal would know to pull up the specifics. This is a strong
indication that a) the drafter of this footnote was a lawyer or
law student, and b) the drafter knew what kinds of assistance
law-journal staffs could be expected to provide. Together with
the citation format, it strongly suggests the likely background
of the person who assisted Marty with his legal scholarship.


14) In the biographical footnote to Taylor's law-review article,
the author makes a point of thanking "Len Musil, J.D. 1988,
Arizona State University, who is clerking for CDL [Citizens for
Decency through Law, the antiporn organization then headed by
Taylor], and who used his skills as editor of his university and
law school newspapers to edit this work and conform its style to
proper form."


15) According to sources at the Georgetown Law Journal, the
purported timetable for Rimm's and the law journal's
interactions goes something like this:


11-18-94 Time article on the CMU censorship flap, written by
Philip Elmer-DeWitt, becomes available on America OnLine. It is
also available in the 11-21-94 issue, which may have been on the
stands on 11-14-94.


11-14-94 to 12-5-94 In this 21-day interval, Meredith Kolsky,
articles editor for the Georgetown Law Journal, reads about
Rimm's study, gets a copy from Marty Rimm, suggests its
publication to the Georgetown Law Journal staff, the GLJ meets
and decides to accept the article, and Carlin Meyer is selected
as a probable contributor.


12-5-94 Meredith Kolsky solicits Carlin Meyer's review of the
Rimm article.


12-7-94 Kolsky thanks Meyer for agreeing to write a comment on
the Rimm article and ships a copy of the then-current draft of
the study to Meyer. It is from this draft -- the words
"Copyright 1994" and "DO NOT CIRCULATE!!" appear prominently on
the cover -- that I have taken the earlier version of Rimm's
obscenity/child-porn legal footnote.


Based on this breathtaking timetable (it's astonishing that the
law-journal staff members physically survived the rapid
acceleration of this editorial decisionmaking process), it's
certain that Marty had legal assistance prior to the official
formal submission article to the law journal. Who gave that
assistance?


The likeliest answers to this question: Deen Kaplan, the
Georgetown Law Journal staff member and antiporn activist, is
the author of the legal footnotes and law-related text of the
Rimm article, while Bruce Taylor, who continues to spearhead the
attempts to pressure Congress into censoring the Internet, is
the Supreme Court obscenity litigator who served as a "referee"
for Rimm.


If Rimm's academic fraud were a crime, Taylor and Kaplan, among
others, could easily be listed as unindicted co-conspirators.
The real crime, of course, is that, even though the Rimm study
itself has been discredited, the larger fraud -- the antiporn
groups' ongoing efforts to paint the Internet as vice den in
dire need of Congressional action -- continues unabated.




POSTSCRIPT: THE OBSCENITY FOOTNOTE


How much help did Martin Rimm receive in his legal footnotes and
research, and who helped him?


To get an idea of the assistance Marty had clearly received
before his article was checked by the Georgetown Law Journal
editors, take a look at Rimm's footnote dealing with the legal
and constitutional status of obscenity and child pornography.


The footnote appears as Footnote 2 in the Georgetown Law Journal
article, but it was Footnote 1 in the version of the article the
law journal sent to Carlin Meyer in December of 1994.


I have marked the differences between the earlier and later
versions of the footnote in the following way:


Material *deleted* from the first draft of the footnote is set
off and bracked with <<doubled angle brackets>>.


Material *added to* the first draft of the footnoate (i.e., that
appears in the final draft) is not set off, but appears in
[[doubled square brackets]].


Here's the footnote:


-------------------


The question of whether a sexually explicit image enjoys First
Amendment protection is the subject of much controversy and
reflects a fundamental tension in contemporary constitutional
jurisprudence. While this article discusses only the content and
consumption patterns of sexual imagery currently available on
the Internet and "adult" BBS, the law enforcement and
constitutional implications are obvious. Thus, it is necessary
to briefly discuss the constitutional status of sexually
explicit images.


Obscene material does not enjoy First Amendment protection. See
Roth v. United States, 354 U.S. 476 (1957)


<<(opinion of Brennan, J.)>>


; Miller v. California, 413 U.S. 15 (1973). In Miller, the
Supreme Court established the current tripartite definition for
obscenity.


<<Id.>>


In order to be obscene, and therefore outside the protection of
the First Amendment, an image must (1) appeal to a prurient
(i.e., unhealthy or shameful) interest in sexual activity, (2)
depict real or simulated sexual conduct in [[a]] manner that,
according to an average community member, offends contemporary
community standards[[,]] and (3) according to [[a]] reasonable
person, lack serious literary, artistic, political[[,]] or
scientific value. Id. at 25-27; [[see also]] Pope v. Illinois,
481 U.S. 497, [[500-01]] (1987) [[(rejecting "ordinary member of
given community" test, in favor of "reasonable person" standard
for purposes of determining whether work at issue lacks
literary, artistic, political, or scientific value)]]; Pinkus v.
United States, 436 U.S. 293, [[298-301]] (1978) [[(excluding
children from "community" for purpose of determining obscenity,
but allowing inclusion of "sensitive persons" in the
"community")]]; [[Ginzburg v. United States, 383 U.S. 463,
471-74 (1966) (allowing courts to examine circumstances of
dissemination todetermine existence of literary, artistic,
political, or scientific value);]] see also United States v.
Orito, 413 U.S. 139, [[143]] (1973) [[(holding that
constitutionally protected zone of privacy for obscenity does
not extend beyond the home)]]


<<Ginzburg v. United States, 383 U.S. 463, 471-74]]>>


.


To complicate matters, all adult pornographic material


<<must be>>


[[is initially]] presumed to be nonobscene.


<<Cf.>>


Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989)


<<.>>


[[(requiring judicial determination of obscenity before taking
publication out of circulation);]]


<<See>>


Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961)
[[(requiring procedures for seizure of obscenity which give
police adequate guidance regarding the definition of obscenity
to ensure no infringement on dissemination of constitutionally
protected speech)]]. Accordingly, law enforcers and prosecutors
attempting to pursue an obscenity investigation or prosecution
face constitutionally mandated procedural obstacles not present
in other criminal matters. See New York v. P.J. Videos, Inc.,
475 U.S. 868 (1986). For instance, the so-called "plain view"
exception to the Fourth Amendment warrant requirement, whereby
contraband plainly visible to a law enforcement officer may be
seized, does not apply to allegedly obscene material because,
prior to a judicial determination, nothing is obscene and
therefore, a fortiori, nothing be can be considered contraband.
See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979)
[[(requiring that search warrants contain specific description
of allegedly obscene items to be seized)]].


In addition to obscenity, one other type of sexually explicit
material does not enjoy constitutional protection. In New York
v. Ferber, 458 U.S. 747 (1982), the Supreme Court explicitly
removed pornography depicting minors from the protective aegis
of the First Amendment. That is, obscene or not, visual
depictions of children engaged in sexual conduct are not
constitutionally protected. Because the government interest


<<which the Supreme Court>>


identified [[by the Supreme Court]] as justifying removing child
pornography from the protection of the First Amendment is more
urgent than the government


<<interests>>


[[interest]] which


<<justifies>>


[[justify]] denying protection to obscenity, and because the
child pornography standard is far less vague than the obscenity
standard, law enforcers and prosecutors are not bound by any
unique procedural burdens here. See United States v. Weigand,
812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987).


In sum, the constitutional regime that the Supreme Court has
established for pornography creates two distinct categories of
sexually explicit imagery


<<which>>


[[that]] are not protected by the First Amendment. While
ascertaining whether a particular digital image contains a minor
is not [[a]] Herculean labor, ascertaining whether a particular
digital image is obscene in the abstract is well-neigh
impossible. Accordingly,


<<this Author>>


[[the research team]] will not attempt to pass on the question
of obscenity as it applies to the digital images that are the
subject of this


<<Article>>


[[article]].




---------


Two things are immediately clear to anyone accustomed to reading
law-review articles. The first is that Marty's footnote was
scarcely edited at all by the law-journal editors -- it was
published in much the same form as it appears in the December
draft. The second is that Marty's handling of legal citation
form is amazingly good for someone who, supposedly, doesn't have
a lawyer on his research team. It is this more than anything
that makes clear that Marty had assistance from someone who
wanted to make his legal scholarship look good enough for a law
journal


Finally, I suspect the transmutation of "this Author" to "the
research team" came at Marty's suggestion, and not the
law-review editors'.


********


More information on the Rimm/CMU/Time "CyberPorn" scandal is
available at: ftp.eff.org,
/pub/Censorship/Pornography/Rimm_CMU_Time/ gopher.eff.org,
1/Censorship/Pornography/Rimm_CMU_Time
http://www.eff.org/pub/Censorship/Pornography/Rimm_CMU_Time/