Declaration of Ernest Johnson on Behalf of ArtNet Worldwide Corporation

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 ERNEST JOHNSON ON BEHALF ARTNET WORLDWIDE CORPORATION

I, Ernest Johnson of Queens, New York, do declare:

Background

1. I am Vice President of Operations for ArtNet Worldwide Corporation ("ArtNet.com"). I began working for ArtNet.com in 1993. I have been interested in computer technology for many years. Before joining ArtNet.com, I worked at Showcase Communications, Inc. where I transferred model portfolios to CD-ROM so that model searches could be completed more easily.   

    

2. I have lived in New York state for the past twenty years. I studied physics at Rensselaer Polytechnic Institute until 1987. I currently live in Queens, New York.   

    

3. ArtNet.com is incorporated in the state of New York and has its principal place of business in New York, New York.   

    

4. ArtNet.com is the leading online service for the art world. ArtNet.com offers World Wide Web (the "Web") users powerful tools and extensive resources including up-to-date and comprehensive searchable databases of auction records, gallery exhibitions and artists' portfolios, as well as international museum links and art fair Web sites -- all with full-color reproductions. In addition, ArtNet Magazine provides the latest art world news, exhibition reviews, columns, and feature articles by top art critics and columnists.   

    

5. ArtNet.com places only fine art on its Web site. ArtNet.com contains reproductions of works by artists ranging from Monet to Rembrandt to Edward Hopper.   

    

6. ArtNet.com is committed to providing an uncensored Web site and therefore ArtNet.com does not examine and expurgate material based on its content. If the material is fine art, it may be reproduced or discussed on ArtNet.com.   

    

7. ArtNet.com was founded in 1989 as Centrox Corporation by Pierre Sernet, an avid collector of nineteenth-century Japanese photographs. Sernet had grown frustrated with the difficulty and tediousness of conducting research using auction catalogues and wanted to discover a faster way of determining the value of works of art and of previewing lots coming to auction. He therefore commissioned the development of a computer imaging system that became the forerunner of the art information network ArtNet.com provides today.   

    

8. Hans Neuendorf is the current Chairman and CEO of ArtNet.com. Since the early 1960s, Hans Neuendorf has been recognized as one of the world's most successful and innovative art dealers. From his galleries in Hamburg and Frankfurt, he was an early champion of some of the most important movements of the last half of this century and helped to establish the reputations of many now-famous contemporary artists. Among those represented by Neuendorf at formative stages of their careers are modern American masters Andy Warhol and Cy Twombly, British painters David Hockney and Richard Hamilton, American West Coast artists Robert Graham and Billy Al Bengston, German artists Georg Baselitz, Bernd Koberling and Karl Pfahler, as well as Italian artists Lucio Fontana and Emilio Vedova. In his role as gallery owner, Neuendorf devoted great attention to publishing, producing an extensive series of art books and catalogues. 

    

Online Materials Provided by ArtNet.com

9. Each week, ArtNet.com receives over two million hits and is visited by over 50,000 unique hosts from around the world.   

    

10. ArtNet.com is greatly improving the way information is exchanged in the art world. In all areas of study, obtaining accurate and comprehensive information is the key to intelligent decision-making. In the fine arts, this information must include visual images. Until recently, these visual images could be presented only in print on paper. The invention of digital compression has now created the possibility of storing large files of data and images and transporting them quickly over existing telephone lines. This new technology has opened the door to a new era of instant and economical visual communication. ArtNet.com is at the forefront of this new technology, and is using it to solve a problem which has plagued the art world for years: the high cost of printing, distributing, storing, and retrieving visual records of art works. Using its powerful information-retrieval software and sophisticated color-imaging technology, ArtNet.com is centralizing historical and contemporary records from publishers, auction houses, and galleries worldwide. It is recovering catalogues raisonnés long out-of-print and publishing materials electronically that would have been prohibitively expensive to produce in the past. It is also giving artists the opportunity to showcase their work online.   

     

11. ArtNet.com provides a central marketplace where creators, buyers and sellers of art can meet. Information that was formerly fragmented or altogether unavailable is now together in one location on the Web. ArtNet.com users therefore can easily compare the content and prices of an enormous volume of artwork.   

     

12. ArtNet.com creates the art world's most efficient marketplace and thus reduces transaction costs to both sellers and buyers of art. With the availability of art for sale on the Web, dealers are no longer required to waste resources by mailing catalogs or attending art shows to sell their work. In addition, buyers of art do not have to spend money or time traveling to areas where art is bought and sold. Therefore, buyers and sellers of art benefit financially from the services provided by ArtNet.com.   

     

13. ArtNet.com is expanding the art market by reaching a wider range of potential collectors, and thus is diversifying the art world. Artists who, prior to the Web, could not profit from their work because they could not find an interested audience, now can reach potential buyers. In addition, ArtNet's availability over the Web extends the fine arts market to buyers who are not insiders in the art world and provides individuals who do not live in areas where a large volume of art is bought and sold access to art. Because of ArtNet.com, anyone interested in art or the art market need only access the Web to become part of, and receive comprehensive and instant information about, the art world.   

     

14. ArtNet.com is not only valuable to individuals who wish to purchase and sell art, but also is a useful resource for people who want to learn about art. ArtNet's extensive databases can provide assistance to individuals who are researching or interested in fine art. A visitor can easily type into the search engine located on ArtNet's home page the name of a work or artist and receive a variety of information about the subject, including reproductions, reviews, and articles. Because this information is located on the Web, it is accessible to individuals who do not have access to libraries or museums that have such extensive information about art.   

     

15. All information on ArtNet.com is available to minors, as well as adults. I believe that ArtNet.com provides a valuable research and educational resource to older minors in particular. Youths often learn about or become interested in fine art for the first time in their late teens. High schools often provide teenagers with their first exposure to fine art in art, humanities, or history courses. We believe that minors can benefit from the accessibility and enormity of ArtNet's databases and information, both in completing their school work and in cultivating their interest in art.   

     

16. Visitors access ArtNet.com over the Web, as defined in 47 U.S.C. § 231 (the "Act"). ArtNet's Web address is http://www.artnet.com. Once a visitor accesses the Web site, she can choose a variety of information from a menu located on ArtNet's home page. See 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 art databases, an online magazine, and chatrooms. The visitor can also use the search engine located on the home page to find information on ArtNet.com or on other art-related Web sites.   

     

17. ArtNet's comprehensive and up-to-date databases include full color reproductions of, and information about, a wide variety of artistic pieces. These databases include Galleries Online, Artists Online, and Auction Online.   

     

18. Launched in 1995, the Galleries Online database gives art galleries the opportunity to publish their exhibition and inventory catalogues online. Catalogues will remain in the database over time, forming a visual history of gallery activity. Galleries Online is designed to help galleries achieve the reach and exposure enjoyed by auction houses as well as provide ArtNet's visitors with an instant overview of gallery activity worldwide. Visitors can search the database by gallery name, gallery location, artist's name, or gallery specialty. So far, approximately 700 fine arts businesses are represented in our Galleries Online database.   

     

19. The Artists Online database provides visitors with a central source of information about contemporary artists from around the world. Containing names, addresses, biographies, and bibliographies, Artists Online gives artists international exposure. ArtNet.com allows these artists to publish their works electronically at a fraction of the cost of paper printing and has opened up Web technology to artists that could not afford to create their own Web sites. Each artist's page provides the visitor with a statement by the artist describing her work, along with several examples of the artist's work that is for sale. Currently, works by over 100 artists are available in ArtNet's Artists Online database.   

     

20. The Auction Online database is the largest and most comprehensive electronic archive of fine art auction records in the world. It contains information about 1.7 million artworks, approximately half of which are illustrated, that have been offered for sale at major auction houses worldwide since 1989. The records in this database include complete sales from 595 auction houses in 28 countries. This database continues to grow; sales information about more than 5,000 artworks is added each week. Visitors use the database as a reference, or to value artwork prior to sale by comparing it to similar work contained in the database.   

     

21. In addition to the databases, ArtNet's Web site contains an online magazine called ArtNet Magazine. ArtNet Magazine features news articles about artists, shows, galleries and events around the world. In addition, it provides reviews, criticism and analysis of art. ArtNet Magazine also reports the prices of specific works sold at auctions. These articles and reviews provide full-color reproductions of the work being discussed.   

     

22. ArtNet.com also contains chat rooms. Users may enter the chat rooms after entering a user name and password. The chat rooms are divided into such categories as "Artists Chat!," "Marketplace," and "Plug Your Site."   

     

23. In addition, ArtNet.com provides links to other sites. After typing search terms into the search engine on ArtNet's home page, the visitor will retrieve not only relevant pages on ArtNet's site but also pertinent pages on other Web sites as well. By selecting from the list of search results an item located on another Web site, the visitor can travel to another site with relevant information directly from ArtNet's site.   

     

24. ArtNet.com also provides a listing of various services for the art world. By selecting "Art Services" from ArtNet's home page, the visitor can view a list of such providers of services as appraisers, restorers, framers, and suppliers and can access job listings available in the art world. From the "Art Services" page, the visitor can view a description of the service or job available, receive contact information, and retrieve the street address, phone number, and e-mail address of the provider.   

     

25. All of the information available on ArtNet's Web site is free except for Auctions Online, which is accessible only to those users who subscribe to the service and pay a fee of $19.95 per month. Although a credit card is required for billing purposes for individuals wishing to gain access to ArtNet's Auction Online database, ArtNet.com does not verify the user's age. 

     

ArtNet.com Is a Commercial Site

26. ArtNet.com is a for-profit corporation. In 1997, ArtNet.com grossed between $1 million and $2 million. ArtNet.com has not yet experienced a profitable year.   

     

27. ArtNet.com is "in the business of making" communications for commercial purposes; much of the speech on ArtNet.com is designed to facilitate the sale of art. Although we believe that much of the information available on ArtNet's Web site also has non-commercial value, all of the information meets the definition of "for commercial purposes" under the Act.   

     

28. ArtNet.com receives income from the operation of its site by selling advertising on its Web site to gallery owners and artists. For the advertising price, ArtNet.com creates the Web page for the gallery or artist. For each Web page, ArtNet.com reproduces the advertised artwork from images submitted by the galleries or artists in digital format or in the form of slides, transparencies, or photographs. ArtNet.com charges each artist that posts a Web page on ArtNet.com $2000 to display up to fifteen works. ArtNet.com also has several advertising packages from which galleries and other fine arts businesses may choose. For exhibitions promoting specific artists' works, galleries advertising work on ArtNet.com are charged a variable rate depending upon how many artists and works they display in each exhibition and how many exhibitions they purchase. For instance, one exhibition of one artist's work sells for $700, a package of six exhibitions of up to five artists sells for $750 per exhibition, and 12 exhibitions of up to fifteen artists sells for $900 per exhibition. Galleries also can advertise their inventory on ArtNet.com without promoting a particular artist or number of artists. With this arrangement, the rates paid by galleries depend on the number of works from their inventory that they display on ArtNet.com during the contract year. For example, a gallery may advertise up to thirty works within the contract year for $3500. A gallery wishing to renew its contract after the first year is charged $1000 per year regardless of the number of works it advertises.   

     

29. ArtNet.com also earns revenue by selling subscriptions to its Auctions Online database. For $19.95 per month, subscribers gain access to this database, which includes current and archived information about auctions, such as the names and prices of artwork sold. Auctions Online currently has 1300 subscribers. 

     

ArtNet.com Fears Prosecution Under the Act

30. We at ArtNet.com fear prosecution under the Act. ArtNet.com publishes material that may be considered "harmful to minors" by some communities because some of the work reproduced on ArtNet.com contains nudity or sexual imagery and some of the text communicated on ArtNet.com contains adult language.   

     

31. We believe that ArtNet.com is very much at risk of prosecution under the Act even though most of the material on its Web site would not be considered "harmful to minors." We 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. We at ArtNet.com believe that, because a portion of the imagery and text on ArtNet's Web site contains material that may be considered "harmful to minors," ArtNet.com is in real danger of prosecution.   

     

32. We believe that many communities with access to ArtNet.com might find that artwork containing strong sexual imagery, or even art containing more innocent nudity, would appeal to the prurient interests of minors. The fact that minors curious about sex often seek out any rendering of the nude human body, regardless of the sexual content, supports that interpretation.   

     

33. We are aware that, historically and recently, communities have had very strong negative reactions to certain artworks.   

     

34. Indeed, some artists' works have sparked fierce public debates. For example, Andres Serrano's work has been met with protest. In 1989, Serrano's exhibition of his work "Piss Christ" (see Exhibit 2) -- an image of a crucifix immersed in urine -- unleashed a bitter national debate. Serrano had received a grant from the National Endowment for the Arts (the "NEA"). Many Americans believed government funds should not be used to support artwork such as that created by Serrano. In fact, United States Senator Jesse Helms led a campaign on Capitol Hill against the NEA, largely for funding Serrano's work. Subsequently, an exhibition of Serrano's work at the National Gallery of Victoria in Melbourne, Australia was closed down after two teenagers vandalized a copy of Serrano's "Piss Christ."   

     

35. In addition, communities have attempted to ban art that they found offensive. For example, Alabama and Tennessee grand juries recently indicted the nation's largest bookseller, Barnes & Noble, on child-pornography charges involving the sale of books by noted photographers whose work includes pictures of nude children. Among those artists is photographer Jock Sturges, whose 10-year-old book, Radiant Identities, contains nude portraiture of children and adolescents. Sturges' work was targeted because authorities found it to contain representations of minors engaged in "obscene acts." However, the children in Sturges photographs are not engaged in any acts at all, let alone obscene or sexual acts, but instead are merely nude. The Sturges indictment is a very real example of how the Act could be used to chill speech over the Web.   

     

36. We fear that some of ArtNet's reproductions that contain nudity and text with adult language may be considered "patently offensive" to minors. Moreover, we believe that ArtNet.com is at risk because a number of the works of art on ArtNet.com contain representations of "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 breast."   

     

37. We 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." We feel that ArtNet.com is at risk because, while communities might recognize the value of the art for adults, they may believe sexually explicit art lacks value for minors.   

     

38. For example, artwork by Andrea Greeven that is located in ArtNet's Artists Online database may be considered "harmful to minors" because it depicts nudity. Such displays of nudity are not gratuitous, but instead are the very focus of Greeven's work. In Greeven's own words, as quoted from ArtNet's Web site:   

     

39. I have struggled in my work to demystify the cultural stereotypes of the nude and to merely render that which is most basic in our ephemeral existence. . . . [I]n my series "Object Lessons," I have tried to combine my love of rendering the figure with my affection for objects in my home, considering human form no more or less carefully than any other shape I am trying to decipher. The figure is thus subverted into the static and eternal realm. My work in portraiture remains self-explanatory. I attempt to recreate an exact likeness and often render clothing with a mere line. In this way, the three-dimensional quality of the figure is enhanced and the "timeless" aspect of the portrait is not underscored by the dress.

40. In conveying her message, much of the work Greeven displays on ArtNet.com focuses on male and female genitalia and female breasts. Such content may be considered "harmful to minors" in some communities despite the artistic and social value that Greeven and we at ArtNet.com see in her work. Some communities may believe that artworks such as Greeven's lacks value for minors even if it has value for adults and thus may deem them "harmful to minors."   

     

41. For instance, Greeven's "Object Lessons #1," one of the pieces in the series Greeven specifically mentions in the paragraph above, depicts the genitalia of a man standing in profile. See Exhibit 3.   

     

42. In addition, in "Object Lessons #2," Greeven depicts a woman's nude breasts. See Exhibit 4.   

     

43. In "Lovers," Greeven paints a nude woman lying on her back on a bed. A nude man is standing next to the bed, facing the woman so that his genitalia are in full view. See Exhibit 5.   

     

44. Photography by Robert d'Amore also may be considered "harmful to minors" because it depicts the nude human body. For example, each of d'Amore's "Closerie De Lila (Paris)" (see Exhibit 6) and "Dancing Nude (Paris)" (see Exhibit 7) shows a woman's nude breasts.  

     

45. We also believe that ArtNet.com may even risk prosecution under the Act for displaying nudes that are the work of classic famous artists. Such nudes include Pierre Auguste Renoir's "Femme Nue Couchée" (see Exhibit 8) and Modigliani Amadeo's "Nu Assis Au Collier" (see Exhibit 9). Because they display the nude human body, some communities may consider such images "harmful to minors."  

     

46. In addition, some material in ArtNet Magazine may be considered "harmful to minors." One example is an article and photographic layout, entitled "Andres Serrano at Paula Cooper" by Paul H-O, about an exhibition of Serrano's photography. The article offers a brief overview of Serrano's work and provides a description of Serrano's 1997 show entitled "The History of Sex." See Exhibit 10. Adjacent to the text of the article are six pictures displayed at the exhibition. The reader of the article can "click" on a picture to blow it up to the size of the screen. All of these photographs are about sex and most of them depict nudity and very strong sexual content.   

     

47. In one photograph shown in the article, Serrano's "The Kiss," a nude elderly woman is shown kneeling next to a nude young man. See Exhibit 11. The woman is grasping the man so that her mouth is directly next to the man's penis. She is facing the camera so that her bare breasts are exposed.   

     

48. Similarly, Serrano's "Auto-Erotic" depicts a nude man lying on his back, throwing his legs over his head. See Exhibit 12. The man is extending his tongue so that it is touching his penis, in an attempt to give himself fellatio.   

     

49. A review, also in ArtNet Magazine, entitled "Contemporary Art in Asia: Traditions/Tensions" by Peter von Ziegesar, contains images and language that may be considered "harmful to minors." See Exhibit 13. The review discusses an exposition of Asian art that appeared simultaneously at three different locations in the New York City area -- the Asia Society, the Queens Museum, and New York University's Grey Art Gallery. Next to the text of the review appear a number of reproductions from the show, several of which contain sexual imagery and/or have titles with sexual content. For example, "Lingga-Yoni," a painting by Arahmaiani, depicts a penis entering a vagina. See Exhibit 14. The artwork "An Old Man from Vasad Who Had Five Penises Suffered from Runny Nose" also may be considered "harmful to minors." See Exhibit 15. It depicts a man with five penises sitting with his legs spread open. (Id.).  

     

50. Another article in ArtNet Magazine, entitled "Ashley Bickerton at Sonnabend" by Mia Fineman, also contains material that may be considered "harmful to minors." See Exhibit 16. The article discusses the work of Ashley Bickerton, who is described as a neo-realist whose work focuses on the cosmetic enhancement of the human body. Several full-color reproductions of Bickerton's work accompany the article. For example, "Rosie and the General" depicts a uniformed military officer having anal sex with an extremely obese nude woman. See Exhibit 17. In another painting displayed in the article, entitled "All That I Can Be: A Triple Self-Portrait," Bickerton depicts his nude body three times -- once as a tatooed biker, once as a muscle-bound body-builder, and once as a transsexual. See Exhibit 18. In addition, in discussing Bickerton's work, Fineman uses language that may