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 <>. 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. <> 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 to determine 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)]] <> . To complicate matters, all adult pornographic material <> [[is initially]] presumed to be nonobscene. <> Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989) <<.>> [[(requiring judicial determination of obscenity before taking publication out of circulation);]] <> 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 <> identified [[by the Supreme Court]] as justifying removing child pornography from the protection of the First Amendment is more urgent than the government <> [[interest]] which <> [[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 <> [[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, <> [[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]]. --------- 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/