Affidavit

I, Ira Glasser, of New York, New York, do hereby depose and
swear:

1. I am the Executive Director of the American Civil Liberties
Union (ACLU), a nationwide, nonpartisan organization of nearly
300,000 members dedicated to defending the principles of liberty
and equality embodied in the Bill of Rights. I submit this
affidavit on behalf of the ACLU.

2. The ACLU is incorporated in District of Columbia and has its
principal place of business in New York City.

3. In addition to its legal advocacy to uphold the Bill of
Rights, the ACLU has long devoted considerable resources to
educating the public about civil liberties. Since 1993, the
ACLU's public education efforts have included extensive online
resources that offer electronic copies of ACLU publications,
reports, court briefs, news releases, and other material related
to the ACLU's legal, legislative, educational and advocacy work.
The ACLU's online resources also include interactive discussion
groups, chat rooms, and special online events that allow users to
discuss and debate a variety of civil liberties issues.

4. The National Office of the ACLU maintains its public online
resources through two separate online services, America Online
(AOL) and the Internet's World Wide Web. The ACLU has a contract
with America Online (AOL) to provide online resources through the
AOL online service. The ACLU has a separate contract with New
Media Publishing, Inc. to provide online resources through the
Internet's World Wide Web. The AOL site offers interactive
discussion groups, chat rooms, and special online events that are
not offered through the Internet site. Otherwise, the material
offered through the two services is substantively the same.

5. The ACLU's World Wide Web site, due to be publicly launched on
February 7, 1996, has already received over 8000 accesses
although it has only been accessible since January 26, 1996. Over
500 people visit the ACLU's site on America Online each week. In
1995, the ACLU posted hundreds of separate documents to its
America Online site, and it expects to increase the number of
online publications in 1996 on both the AOL site and the web
site.

6. The Public Education Department of the ACLU's National Office
in New York, New York creates and formats ACLU information for
both the America Online site and the Internet site. Using
electronic mail, the ACLU's affiliate offices in all fifty states
forward relevant information to the ACLU's Public Education
Department to be included in the ACLU's online resources.

7. While the ACLU's online resources on America Online are
physically located in computers owned and maintained by America
Online, Inc. of Vienna, Virginia, the ACLU has sole editorial
control over the site. Only AOL subscribers can access the ACLU
information on the AOL system.

8. While the ACLU's online resources on the Internet web site are
physically located in computers owned and maintained by New Media
Publishing of Falls Church, Virginia, the ACLU has sole editorial
control over the site. All online subscribers that have access to
the Internet can access the ACLU's web site.

9. New Media Publishing has expressed concern that it could be
held liable under the statute for the material on the ACLU's web
site. The company has not yet decided what action, if any, to
take as a result of this concern.

10. In addition to the Internet web site and the America Online
site maintained by the ACLU's Public Education Department at the
National Office, many ACLU affiliate offices provide their own
online resources through separate service providers. More and
more of the ACLU's fifty state affiliate offices have established
their own web pages, usually through a service provider in their
own state. The National Office web site creates links to these
affiliate web sites, but the affiliate web site information is
physically stored on various computers depending upon the service
provider used by the state affiliate office.

11. The ACLU is involved in cases and advocacy regarding arts
censorship, obscenity law and indecency law, discrimination
against gays and lesbians, and reproductive freedom. Because of
the nature of these and other civil liberties issues, many ACLU
documents necessarily use sexually explicit speech or vulgar
language. Thus, many of the ACLU's online resources contain
material that could be considered "indecent" or "patently
offensive." For example, the ACLU has posted the text of the
famous "Seven Dirty Words" comic monologue which the Federal
Communications Commission ruled "indecent," and which the Supreme
Court upheld in the 1978 FCC v. Pacifica case. (The Supreme Court
itself reproduced the "seven dirty words" monologue as an
appendix to its opinion in the Pacifica case.) In order to
illustrate the ever-changing public conception of what words are
"indecent," the ACLU has an online feature that allows users to
guess what the famous "seven dirty words" are. The ACLU allows
the user to access the correct answer by reading the Court
decision or the ACLU's brief in the case. In honor of its recent
75th anniversary, the ACLU also published a list entitled "The
ACLU's 75 Greatest Hits" that documents the ACLU's involvement in
75 important United State Supreme Court victories. The online
version of the list includes the text of the brief that the ACLU
filed for each case with the Supreme Court. One of these cases
was the Cohen v. California case, in which the Court reversed the
conviction of a man who allegedly disturbed the peace by wearing
a jacket that bore the words, "Fuck the draft," while walking
through a courthouse corridor. In addition, the ACLU's online
resources include an important trial court opinion dealing with
free speech in cyberspace. In U.S. v. Jake Baker, a federal
district court dismissed criminal charges against a student who
had posted online fictional stories and messages involving
violent sexual fantasies. The opinion quotes graphic passages
from the defendant's postings.

12. The ACLU's Internet sites also provide links to other
Internet sites as a resource for online users. For example, when
accessing an ACLU online file on civil liberties in cyberspace,
the ACLU site provides a link so that the user can "jump" to a
related site hosted by the Electronic Frontier Foundation. In
turn, EFF's site provides further links to additional relevant
online sites that deal with the subject.

13. The ACLU's site on America Online also hosts unmoderated
online discussion groups that allow citizens to discuss and
debate a variety of civil liberties issues. These include a "free
speech zone," in which users can simultaneously chat online about
current issues; the Bill of Rights bulletin board, an online
bulletin board that allows users to post messages on particular
civil liberties topics; and live "auditorium" events, in which a
featured speaker "talks" online on a particular issue and users
can respond simultaneously with online questions. Past speakers
have included such controversial figures as Camille Paglia
(academic and commentator on sexual politics) and Harvey
Fierstein (actor and gay rights activist). The ACLU's Public
Education Department changes the online topics frequently to
address current civil liberties concerns. Users are also
permitted to create bulletin board topics of their own choice.
All of these interactive services provide an opportunity for
online users to express their uncensored views on civil liberties
issues. Many of the communications have sexual content or vulgar
language; for example, users of the ACLU site on AOL have
discussed the content of Howard Stern's best-selling book,
Private Parts; the taboo of masturbation, in the context of the
firing of Jocelyn Elders; reasons why the word "fuck" has such
expressive power; and the First Amendment rationale for defending
pornography.

14. The ACLU does not moderate its online discussion groups
because any editing would be antithetical to the ACLU's strong
belief in freedom of speech and a free marketplace of ideas.
Thus, the online discussion groups provide both an opportunity to
learn about civil liberties and an opportunity to exercise one of
the most important of those liberties -- free speech.

15. The ACLU considers minors to be an important audience for its
online resources. The ability of minors to obtain online
information and to participate in chat rooms or discussion groups
with other minors and with adults is a vital part of their
education. It is particularly important that minors be able to
access information about their own civil rights so that they can
recognize when their rights are being infringed.

16. The ACLU understands that one possible course of action under
the statute that could protect the ACLU from possible criminal
prosecution or sanctions would be to delete all materials that
might be considered "indecent" or "patently offensive." Because
the ACLU believes that "indecent" and "patently offensive"
material is protected by the Constitution even for minors, it
does not currently intend to delete such materials from its
online communications in order to avoid criminal liability.
However, even if the ACLU wanted to screen "indecent" or
"patently offensive" material, the ACLU does not know how to
determine which material might be considered indecent or patently
offensive. In addition, because of the large amount of
information that flows into the ACLU online sites from users of
its interactive services, the ACLU would have to devote
tremendous resources to such screening, which would be
economically infeasible. In addition, because of the large number
of other online sites that are linked to the ACLU site, and in
turn the additional links on those sites, it would be technically
and economically infeasible to try to screen all "indecent" or
"patently offensive" material.

17. The ACLU understands that another possible course of conduct
that could protect the ACLU from possible criminal prosecution or
sanctions under the statute would be to forbid minors from
accessing online resources that might be "indecent" or "patently
offensive." Again, because the ACLU believes that "indecent" and
"patently offensive" material is protected by the Constitution
even for minors, it does not currently intend to refuse access to
minors in order to avoid criminal liability. While requiring
payment via credit card or check would be one way to verify the
age of most users, and thus to exclude most minors, the ACLU's
online services are currently provided for free. Requiring such
verification would shut out minors and also prevent adults
without credit from accessing ACLU online resources. In addition,
a credit card or check verification requirement would prevent
anonymous access and would require the ACLU to maintain records
of users who accessed their site in order to prove that a
particular user was not a minor. The ACLU believes that users
should be able to access its online resources anonymously and
without creating a record showing that they have accessed the
site.

18. The ability of the ACLU to continue to use online
communications to educate and communicate is essential to its
mission and its future advocacy. The ACLU's educational mission
would be undermined, and it would suffer economic hardship, if it
were required to write separate versions of its print
publications -- one for adults, and one for minors -- for
distribution online because of the "indecency" standard. The ACLU
does not currently screen requests for print publications to
determine whether the request is from a minor. (Current law
requires no such screening for print publications.) In addition
to the economic hardship, it would make no sense to deny a minor
access to an online version of an ACLU publication that the minor
could easily request in printed form.

19. In addition to its public online resources, the ACLU
maintains a private space on American Online that may be accessed
by ACLU staff but not by other America Online subscribers. The
AOL private space allows ACLU staff and members to exchange
documents and information on bulletin boards and through private
e-mail. ACLU staff and members also use other online services
(sometimes through America Online, and sometimes through other
Internet Service Providers) that include e-mail, online mailing
lists and discussion groups, and private bulletin board systems.
These additional services are an important low-cost method of
communicating and sharing documents and information between
individuals and select groups. Because ACLU staff and members
work on issues such as art censorship, obscenity, reproductive
freedom, and gay rights, some of these communications also
contain sexually explicit or vulgar speech or descriptions of the
human body or human reproduction.

20. Many ACLU staff and members receive requests for information
by private e-mail messages. Some of these requests are for
information on issues such as art censorship, obscenity,
reproductive freedom, and gay rights, and thus may include
sexually explicit or vulgar speech or descriptions of the human
body or human reproduction. The ACLU does not currently verify
the age of the person requesting the information, and does not
currently intend to begin verification procedures in order to
avoid criminal liability under the statute for the reasons stated
in paragraph 16 above.

21. Many of the ACLU's nearly 300,000 members use online
communications. ACLU members both receive and transmit
information through a variety of online communications including
the Internet's World Wide Web, online mailing lists, discussion
groups, chat rooms, computer bulletin boards, and private e-mail.
To avoid liability under the statute, ACLU members will either
have to self-censor "indecent" speech or risk prosecution. In
addition, many ACLU members are minors. The statute will
radically restrict access by ACLU members who are minors to
constitutionally protected material.

22. The ACLU, on behalf of itself and its members, fears
prosecution or other enforcement under the statute for
communicating, sending, or displaying "indecent" or "patently
offensive" material in a manner available to persons under age
18. The ACLU also fears that if the statute goes into effect,
America Online, New Media Publishing, and other online services
will ban ACLU communications that they consider potentially
"indecent" or "patently offensive," thereby depriving the ACLU,
its members, and others who use its online services of the
ability to communicate about important issues.

23. The ACLU conducts litigation to protect reproductive rights
nationwide, including women's access to abortions. The ACLU
regularly represents abortion providers and individual women
seeking abortions. The ACLU informs individual clients about
various abortifacient drugs and devices, including how they
function and where they are available. In addition, the ACLU's
World Wide Web site contains a link to the Feminist Majority
Online Web site, which contains the information that the
abortifacient drug RU 486 (also called mifepristone) is available
in France and that a specific health clinic in England will
administer it to American women. The ACLU also provides
information to our colleagues, the media, and the public about
the legal status of various abortifacient drugs and devices. In
the process of giving this information, the ACLU staff often
explain how the drugs and devices work and where they are
available. The ACLU distributes this information through the
mails, over telephone and FAX lines, and through interactive
computer services.

24. To assess the legality of using particular abortifacient
drugs and devices, the ACLU receives information from physicians,
abortion providers, abortion rights activists, and others
regarding how the drugs and devices work and who provides them.
For example, to help the ACLU determine the reach of laws
restricting access to abortion, its physician-clients send
medical literature differentiating between drugs and devices
(such as low-dosage birth control pills and intrauterine devices)
that prevent the implantation of a fertilized ovum, and so may be
defined as abortifacients, and others (such as condoms or
high-dosage birth control pills) that prevent conception and so
are not properly defined as abortifacients. The ACLU also
receives information about the availability and functioning of RU
486, the combination of methotrexate and misoprostol, and the
morning-after pill, which are all abortifacient drugs. Abortion
providers and others send the ACLU this information through the
mails, over telephone and FAX lines, and through interactive
computer services.

25. In addition to communicating about abortifacient drugs and
devices, the ACLU informs its individual clients about various
surgical abortion procedures, including how they are done and
where they are available. Furthermore, the ACLU's World Wide Web
site contains a link to the Abortion Clinics Online Web site,
which lists the addresses and telephone numbers of abortion
clinics across the country, and to other Web sites that describe
abortion procedures. The ACLU also provides information to our
colleagues in the field, the media, and the public about the
legal status of various surgical abortion procedures. In the
process of giving this information, ACLU staff often explain how
the procedures work and where they are available. The ACLU
distributes this information through the mails, over telephone
and FAX lines, and through interactive computer services.

26. The ACLU receives information from physicians, abortion
providers, abortion rights advocates, and others regarding how
specific surgical abortions are performed and who performs them.
For example, in making a record to demonstrate the scarcity of
abortion providers in a state where it is challenging an abortion
restriction, the ACLU compiles information about where and by
what means abortions are performed in that state. Abortion
providers and others send the ACLU this information through the
mails, over telephone and FAX lines, and through interactive
computer services.

27. Members of the ACLU send and receive information about
abortion and about various abortifacient drugs and devices
through the mails, over telephone and FAX lines, and through
interactive computer services.

28. The ACLU, on behalf of itself and its members, fears
prosecution or other enforcement under 18 U.S.C. Section 1462(c)
for sending or receiving through the mails, telephone and FAX
lines, and its online resources, "information . . . where, how,
or of whom, or by what means any" "drug, medicine, article, or
thing designed, adapted, or intended for producing abortion . . .
may be obtained or made."

Ira Glasser

Subscribed and sworn before me on this ___ day of February, 1996.

Notary Public

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