Declaration of Adam K. Glickman on Behalf of Condomania in Reno v. ACLU

  

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN CIVIL LIBERTIES UNION ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT BOOKSTORES, AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ARTNET WORLDWIDE CORPORATION BLACKSTRIPE, ADDAZI, INC. d/b/a CONDOMANIA, ELECTRONIC FRONTIER FOUNDATION, ELECTRONIC PRIVACY NFORMATION CENTER, FREE SPEECH MEDIA INTERNET CONTENT COALITION, OBGYN.NET PHILADELPHIA GAY NEWS, PLANETOUT CORPORATION, POWELL'S BOOKSTORE RIOTGRRL, SALON INTERNET, INC. and WEST STOCK, INC., Plaintiffs, v.  JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES, Defendant.

Civ. Act. No. 98-CV-5591 (LAR)

DECLARATION OF ADAM K. GLICKMAN ON BEHALF OF
ADDAZI, INC. D/B/A/ CONDOMANIA

I, Adam K. Glickman of Los Angeles, California, do hereby depose and swear:

Background

1. I am President and Chief Executive Officer for Addazi, Inc. d/b/a Condomania ("Condomania"). I started selling condoms while in college, creating a company which was the predecessor to Condomania. I have been interested in promoting safer sex for over a decade, and am considered to be one of the nation's foremost experts on condoms and safer sex issues.   

    

2. I was born and raised in New York, New York, and now live in Los Angeles, California. I graduated from Tufts University in 1989.   

    

3. Adazzi d/b/a Condomania is incorporated in the state of Massachusetts and has its principal place of business in Los Angeles, California.   

    

4. I established Condomania, the nation's first condom store, in June of 1991 in order to sell condoms and other safer sex items and to provide public education on safer sex. In 1996, Condomania launched Condomania Online, a site on the World Wide Web (the "Web"). Through Condomania Online, users can access extensive resources including a full color online catalog of Condomania's most popular items, the latest safer sex information, regularly updated newsletters and editorials, and company information. Moreover, through Condomania's education page, users can "link" to other sites that are dedicated to promoting safer sex education, AIDS awareness and a positive sexuality.   

    

5. Condomania focuses on assisting customers of every age, sex, culture and sexual orientation in learning about safer sex, and in purchasing condoms and safer sex products. Condomania believes the best way for the public to make educated choices about safer sex products is through access to accurate, non-judgmental information, and therefore provides multiple resources for such information on its Web site. Moreover, Condomania also provides safer sex information in its stores, as well as providing educational programs as a service to customers and surrounding communities.   

    

6. Condomania Online was conceived of and principally designed by me, based upon my experience with the Condomania retail stores and mail order division.   

    

   Online Materials Provided by Condomania

   7. The Condomania Web site has approximately 3,000 visitors each day. Visitors locate the site from over 130 countries, and from every state within the United States. Pennsylvania ranks third amongst the states in terms of number of visitors to our Web site.    

       

   8. Condomania launched its Web site as an extension of its stores in order to dramatically improve the availability of safer sex products to the general public and to provide a wealth of information to people who might not otherwise have access to the facts about safer sex and the best safer sex products available today. Through Condomania Online, people can access this information and order products all in the comfort and privacy of their own homes.    

       

   9. Visitors access Condomania over the Web, as defined in 47 U.S.C. § 231 (the "Act"). Condomania's URL is www.condomania.com. Once a visitor accesses the Web site, he can choose a variety of information from a menu located on Condomania's home page. (Exhibit 1). The user can "click" on the menu to travel to the page containing the desired selection of material. The items available for selection on the menu include the Condomania online catalog, safer sex information, store information, order information, the Condomania privacy policy, corporate information, new products, contacting Condomania, and the Condom Wizard. The visitor can also use the search engines located on the home page to find any information or products located within the Condomania Web site.    

       

   10. The Condomania online catalog is in full color and features over 250 of the most popular items from Condomania's stores. In all, there are over 100 different condoms featured, categorized by style so consumers can easily find the condoms that are best suited for them. Each condom has been photographed fully inflated so the viewer can see its actual shape, size, texture and color. (See Exhibit 2). In addition, the dimensions for each condom are displayed alongside a picture and dimensions of an "average" condom, so that each condom can be statistically and visually compared.    

        

   11. The Condom Wizard is an interactive condom search guide which takes users through a series of individualized questions and then provides product recommendations based upon the individual's needs and preferences. (See Exhibit 3). The Condom Wizard is tied into the online catalogue, so once the Wizard makes its recommendations, a viewer can click over to detailed descriptions of each product.    

        

   12. In addition to condoms, the online catalog features lubricants, t-shirts, boxer shorts, novelty items, games, books and other products -- all related to Condomania's theme of fun, safer sex. A "shopping cart" mechanism allows viewers who wish to purchase a product to "drop" products into a "shopping cart" as they go through the catalog. At the end of their shopping trip, viewers go to a "check out stand," where they can review their selections and make any changes. To complete a purchase, viewers complete an online order form with their address and credit card number, or they can print out an order form and send it to Condomania via mail or fax.    

        

   13. Condomania Online is a valuable resource not only to individuals who wish to purchase condoms and other safer sex products, but also to people who simply want to learn about safer sex. Education is a key goal of Condomania, and educational information is prominently placed on the Condomania Web site, as well as in the Condomania stores. The Condomania Web site includes a seventeen page Condomania Safer Sex Manual, covering 13 different topics. (See Exhibit 4). The Safer Sex Manual is designed to be user-friendly, using frank language to educate and help people negotiate the many issues of safer sex, such as the mechanics of safer sex and strategies for discussions about safer sex. This Manual was first conceived of as part of the "Safer Sex Kit" which was marketed to the public beginning in 1993. Approximately 50% of the sales of the Safer Sex Kit in 1993-1994 were to parents wanting to find an effective way to teach their children how to protect themselves from sexually transmitted diseases.    

        

   14. The site also contains two different monthly newsletters which provide additional information on the newest products and trends in the safer sex industry, and practical advice on how to incorporate safer sex into one's life. The site also has a forum for visitors to e-mail their own safer sex stories to Condomania, some of which are published by Condomania on its site. (See, e.g., Exhibit 5). Finally, the site also provides detailed information on sexually transmitted diseases, including HIV and AIDS, and information about Condomania's education and outreach programs, store locations and company history. The goal is to allow people to learn about safer sex in a casual, approachable environment, without lectures or embarrassment.    

        

   15. In addition, Condomania provides links to other informational sites. On the Educational Information page, users can select "Related Links." (Exhibit 6). From that page, users can immediately access a number of other Web sites which Condomania has selected as being additional sites dedicated to promoting safer sex, including AIDS sites, the sites of condom manufacturers and lubricant manufacturers, and other healthy, sexuality related sites.    

        

   16. All information available on Condomania Online is available to minors as well as adults. Condomania does not attempt to screen potential users by age. I believe that the availability of the information on the Condomania site may prevent sexually transmitted disease and unwanted pregnancy among older minors and adults and serves as a framework and a starting point for older minors and adults who want or need to initiate discussions about safer sex.    

        

   17. I believe that older minors in particular benefit from the information that can be learned from the Condomania Web site. I believe that in America today, it is difficult for older minors to obtain the information they need to act responsibly about sex. To cite a few statistics that can be found on the Condomania Web site:
       
       • The number of HIV-infected teens in the United States doubles every 14 months.     
       • The World Health Organization estimates that half of all HIV infections worldwide occur to people between the ages of 15 and   
       • Three million teens are diagnosed with sexually transmitted diseases each year in the United States.   
       • Two-thirds of people with sexually transmitted diseases are infected before the age of 25. 

   18. Clearly, in this environment, there is a need for more safer sex education for older minors. Condomania provides a forum for older minors to learn about safer sex in a youthful, non-judgmental environment. The goal of Condomania is to provide safer sex information to anyone who needs it, in a manner that makes the user feel comfortable and is fun to read. Moreover, Condomania allows older minors to learn about safer sex and purchase safer sex items in anonymity, alleviating concerns about having to ask embarrassing questions, or being seen purchasing condoms or other safer sex items. I believe that these attributes make Condomania's Web site a valuable tool in the fight against unwanted pregnancy and sexually transmitted disease.

   19. I understand that Condomania Online has been used by several teachers and schools to educate their students about safer sex. Moreover, schools in California and New York have taken school trips to our stores to teach their students about safer sex. Condomania prides itself on educating the public by providing up-to-date information regarding safer sex on both its Web site and in its stores. To quote from the Condomania Web page entitled "Education @ Condomania,"    

       
       Nationwide, hundreds of teenagers continue to confide in our employees their apprehensions and concerns about their first sexual experiences. Encounters like these remind us of the important role we play in helping people negotiate complicated decisions about sexual activity in the midst of a health epidemic. We are proud to have started a condom revolution and are committed to assisting our customers into a safer tomorrow.

        

   20. I understand, however, that some people and communities believe that it is not appropriate to provide safer sex information or to sell condoms to minors. I am aware that many people and communities associate condoms with pornography and condom stores with sex shops. I have received hate e-mails which, for example, described me as Satan and informed me that I would go to hell for my work at Condomania.    

        

   21. All of the information accessible on Condomania's Web site is available for free. In addition, access to the Condomania online catalog is also free.    

        

   22. At the time for purchase, or "checkout," users are given an option of using Condomania's Secure Server, or to create an order form for off-line orders. Only when a user chooses to purchase items through the Condomania Secure Server is the user asked to provide a credit card number. Thus, a user may even order Condomania products without providing Condomania with a credit card number.  

        

   Condomania Is a Commercial Site

   23. Adazzi d/b/a Condomania is a for-profit corporation. Condomania Online is profitable as a stand-alone entity and is responsible for more than one-half of Condomania's gross revenue.    

        

   24. Condomania is "in the business of making" communications for commercial purposes; much of the speech on Condomania is designed to facilitate the sale of condoms and other safer sex items. Although I believe that much of the information available on Condomania's Web site has significant non-commercial value, all of the information meets the definition of "for commercial purposes" under the Act.    

        

   25. Condomania receives income from the operation of its site by selling its products to users. While Condomania has considered adding advertising to its Web site, and may do so in the future, it currently does not feature outside advertisers and all profit is made from the sale of products through the online catalog.  

        

   Condomania Fears Prosecution Under the Act

   26. Condomania fears prosecution under the Act. Condomania provides safer sex information and product information on its site, all of which can be considered a "communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind" as defined by the Act.    

        

   27. Condomania publishes material that may be considered "harmful to minors" because free access to safer sex information is perceived by some communities as encouraging premarital sex and alternative forms of sexual contact. Additionally, the instructions and text contained in Condomania's safer sex information may also be perceived by some communities as "patently offensive." Finally, the Condomania Online catalog contains photographs of its products, including photographs of fully-inflated condoms, which may also be perceived by some as "patently offensive." While I believe I have designed the Condomania Web site to be fun, youth-oriented and appropriate for all ages, I am concerned that some communities may still consider its content to be "harmful to minors."    

        

   28. I believe that many communities with access to Condomania Online might consider the entire Condomania Web site, including the text and illustrations in Condomania's educational pages and online catalog, "patently offensive" and appealing to the "prurient interests" of minors. While I believe that in general society is becoming more accepting of teaching safer sex to older minors, I believe some communities may be of the opinion that the information given on the Condomania Web site is "harmful to minors" within the meaning of the Act.    

        

   29. I understand that the Act deems material "harmful to minors" if it "depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breasts." I fear that some communities may believe that items on the Condomania site do depict or describe such acts.    

        

   30. I understand that the Act deems material "harmful to minors" only if it "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." I feel that Condomania is at risk because, while communities might recognize the value of safer sex information for adults, they may believe such information or products lacks such value for minors, especially pre-pubescent minors.    

        

   31. I believe that Condomania is very much at risk of prosecution under the Act even though not all of the material on its Web site may be considered "harmful to minors." I understand that the Act expressly states that "it is not necessary that the . . . offering to make [communications over the Web that include any material that is 'harmful to minors'] be the person's sole or principal business or source of income" for the speaker to be prosecuted under the Act. Condomania believes that, because much of the imagery and text on its Web site contains material that may be considered "harmful to minors," it is in real danger of prosecution.    

        

   32. For example, in Condomania's Safer Sex Manual, users are told how to care for and put on condoms. (See Exhibit 4, "All About Condoms"). The page describes in detail the safest technique for using a condom, and provides drawn illustrations. Some communities may perceive the text and illustrations to be a description and depiction of a sexual act.    

        

   33. Condomania Online also has a page in its Safer Sex Manual regarding Dental Dams, Finger Cots and Latex Gloves. (See Exhibit 4, "Dams, Cots and Gloves"). This page explains how to use these items properly in order to protect oneself from disease. For example, the portion describing the use of a dental dam instructs the user to "[h]old the latex dam over the vulva or anus during oral stimulation, making sure that the latex remains in place." (Id.) Likewise, the portion describing the use of latex gloves indicates that latex gloves provide protection "during fingering or fisting of the vagina or anus." (Id.) Some communities may believe that these instructions advocate alternative forms of sexual activity that they disapprove of and that appeal to the "prurient interest" of minors.    

        

   34. The Condomania Safer Sex Manual also encourages users to engage in self-exploration of one's body. The "Take A Good Look" page states that
       

       [i]f you have never explored your body on your own, sharing it with someone else can be hard. Don't rely on your sexual partner to know more about your body than you do. You will make more educated decisions and have better sex if you understand how you and your partner's bodies work. . . . Learn what feels good to you so [you] can pass along this knowledge to your partner, and ask him or her to do the same.

       
       (See Exhibit 4). I fear that some communities in which masturbation is considered taboo would believe that Condomania's site advocates an unacceptable form of sexuality and therefore is "harmful to minors."    

        

   35. Finally, the Safer Sex Manual also provides a chart so a person may assess whether their sexual behavior puts them at risk for the contraction of a sexually transmitted disease. (See Exhibit 4, "What Is Safe?"). Some of the activities listed on the chart include masturbation, use of sex toys, watching erotic film, fellatio or cunnilingus, and various types of intercourse. I am concerned that some communities may believe that some of these activities are unacceptable forms of sexual activity, especially "with respect to minors," and therefore that our description of these activities is "harmful to minors." I am also concerned that some communities may think that by categorizing certain activities as "safe" or "somewhat safe," Condomania is encouraging those activities, and therefore appealing to the "prurient interest" of minors.    

        

   36. Similarly, the Condom Wizard uses whimsical but descriptive language to guide users through the selection of an appropriate condom. Examples of language used by the Condom Wizard are:  

        

   • "Start your day with your favorite person, a good breakfast and an orange flavored condom. Great with cereal!";    

      

   • "LifeStyles Mint Scented condoms are coated with a sweet mint flavored powder, sure to satisfy even the most discriminating palate. . . . A real favorite for oral sex.";    

      

   • "You say that the smell of latex has got you down? You say that one sniffy and good bye stiffy?";    

      

   • "Searching for those bumps of love, those studs of passion, those ribs of delight? Hoping to add a little rise to your fries?";    

      

   • "So, you want to put a bit more zing in your shwing? You say you're looking for a little rougher terrain for your off road vehicle of love?";    

      

   • "So, you say you are looking for a condom with bumps on the . . . inside to tickle your cockles? Hoping to add a little extra thrill to your dill?"; and    

      

   • "So, the hat feels a little tight, eh? You say that the only thing you seem to end up with when in pursuit of a high quality condom is a head-ache?". 
   (See Exhibit 3). Some communities might find this playful but explicit iscussion of sexuality to be "harmful to minors."  

    

7. Additionally, Condomania's online catalog provides detailed descriptions and full-color pictures of condoms, lubricants, dental dams, and other safer-sex-related products. (See, e.g., Exhibits 2 and 7). All of the condoms are photographed fully inflated, so the viewer can see their actual shape, size, texture and color. (See id.) I fear that some communities may find the manner in which the products are displayed to be offensive and appealing to the "prurient interests" of minors.   

    

8. In addition, Condomania's "Condom Tales" section includes accounts submitted by our customers of their experiences with condoms, such as "The Great Latex Lover" and "Shoelaces." (See Exhibit 5). I fear that some communities may find these accounts to be "harmful to minors."   

    

9. I also fear that Condomania may be subject to prosecution if the Web sites to which we provide links, such as The Society of Human Sexuality, The Coalition for Positive Sexuality, and Sensual Celebrations, are deemed to be "harmful to minors." (See Exhibit 6).   

    

10. I understand that the Act carries with it not only the threat of criminal prosecution and penalties, but also the threat of civil penalties of up to $50,000 for every day that Condomania communicates material that may be considered "harmful to minors." We also understand that the plaintiff's burden of proof in a civil action is significantly less than the government's burden of proof in a criminal prosecution: Condomania could be liable for damages if it is "more likely than not" guilty of communicating such information. Condomania could not afford to pay such significant civil damages. One $50,000 fine would drive Condomania out of business. In fact, Condomania could not afford to defend a civil action, even one that it ultimately won. 

     

Condomania Does Not Understand What Actions Will Constitute a Violation of the Act

41. We at Condomania do not understand which "community" will be judging the material on our Web site. In part, the Act defines material that is "harmful to minors" as that which "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest." We do not know, however, whether the applicable community is every local community where our Web site is accessed or the worldwide community of Web users. We understand the applicable community standards in Los Angeles and New York, where we operate stores, but we do not know the community standards of each community that can access Condomania Online, and it would be impossible for us to keep track of them all.   

     

42. In addition, we do not understand what actions might lead to prosecution. For example, we do not understand how to define the terms "considered as a whole," "patently offensive," "contemporary community standards," "any other reasonable measures that are feasible under available technology," or "good faith to implement a defense," in the context of the Web. Finally, we do not understand the difference between a "knowing" and an "intentional" violation under the Act, even though the latter imposes higher penalties. 

     

The Act's Defenses Do Not Shield Condomania from Liability

43. The Act's affirmative defenses do not help Condomania to avoid prosecution under the Act.   

     

44. Requiring a user to provide credit card information before accessing our site would not be feasible because to verify the card would require a commercial tran