Affidavit in ACLU, et al v. Reno
Declan McCullagh of Pittsburgh, Pennsylvania, being duly sworn, deposes and says:
1. I am currently a student at Carnegie Mellon University, due to graduate in the spring of 1996. I was student body president during the 1994-95 school year and previously held other campuswide offices. I also maintain an archive of information on the World Wide Web known as Justice on Campus, and will continue to do so after I graduate. Justice on Campus can be accessed without payment at http://joc.mit.edu/.
2. Justice on Campus began in the fall of 1995. It is housed on the private computer of a 17 year old student at the Massachusetts Institute of Technology. About 150 people visit Justice on Campus every day. Although other people contribute to Justice on Campus, I retain sole editorial discretion over what to post on the site. I receive no payment for maintaining Justice on Campus.
3. The purpose of Justice on Campus is to provide an information clearinghouse on free speech issues on college campuses. Justice on Campus particularly focuses on abuses of college disciplinary processes with regard to speech and suppression of online communications. Justice on Campus serves as a check on college administrations that attempt to inhibit or punish protected speech. The importance of Justice on Campus has been recognized by Hal Abelson, a professor of Computer Science and Engineering at the Massachusetts Institute of Technology, who has designated Justice on Campus as required reading in his course entitled "Ethics and Law on the Electronic Frontier."
4. In the course of providing information on free speech issues on college campuses, Justice on Campus sometimes provides material that could be considered "indecent" or "patently offensive." For instance, Justice on Campus has addressed administrative responses to online communications at Cornell and Carnegie Mellon Universities. In the course of describing these controversies, Justice on Campus has addressed the overreaction of administrators to material to which some members of the campus community objected. To report accurately on the controversies, Justice on Campus provided the text of the communications at issue and responses to them. These communications include sexually explicit and vulgar language. For instance, some male students at Cornell electronically circulated 75 reasons why women should not have freedom of speech, which was alleged to constitute sexual harassment. The list included four letter words and many sexual comments, including references to sexual acts.
5. Justice on Campus plans to cover free speech debates and policies in the future. It is likely that in the course of doing so, Justice on Campus will include material some would consider "indecent" or "patently offensive."
6. Because Justice on Campus addresses the interests of college students, and some college students are less than 18 years old, I believe that minors do access the Web site. Although it might be technologically feasible for me to prevent minors from accessing Justice on Campus, it does not make sense to do so for a number of reasons. First, it would cost a lot of money and take a lot of time to require an application and password system or other barrier to access for the thousands of people who read Justice on Campus. These burdens would make it difficult for me to continue to volunteer my time and to offer Justice on Campus for free. Second, even if a restricted-access system were in place, it could be evaded either through forged applications or through the use by minors of passwords issued to adults. Third, it would compromise the purpose of Justice on Campus to prevent minors from accessing it. College students under 18 have as much stake in free speech on campus as those students 18 and over. Further, high school students should have the right to know about university free speech policies when deciding where to attend. It would not be feasible for me to take the time to create two versions of Justice on Campus, one of which was for teenagers and did not contain material that could be considered "indecent" or "patently offensive." Further, much of the controversy on which Justice on Campus reports would be difficult to understand if the speech at issue was censored in a version for the use of minors. I do not object if people who access Justice on Campus choose to use screening software. Such software is less burdensome than requiring passwords for access.
7. I have no idea what "indecent" or "patently offensive" means. Thus, it would be difficult for me to decide what is and is not lawful under a law prohibiting dissemination of "indecent" or "patently offensive" online material to minors. If such a law goes into effect, I currently intend to continue to post explicit material.
8. If a law prohibiting "indecent" or "patently offensive" material goes into effect, I fear that online services and other access providers will ban communications that they consider potentially "indecent" or "patently offensive." This would deprive Justice on Campus and its visitors of the ability to communicate on important issues.
9. I currently provide links to other online material from Justice on Campus, particularly on the subject of free speech. The sites to which Justice on Campus is linked are in turn linked to still other sites, creating a virtually endless chain. It would be infeasible for me to screen those sites to which I provide links, let alone the whole chain of linked sites, for material that could be considered indecent or offensive. I would be reticent to continue providing links if the law prohibiting "indecent" or "patently offensive" online communications to minors is enacted for fear of criminal prosecution or other sanction.
10. In addition to maintaining Justice on Campus, I also maintain a list entitled "fight-censorship." A list allows people interested in certain issues to subscribe and receive regular information. The fight-censorship list is dedicated to resisting government and institutional attempts at censorship in cyberspace. I started the list in November 1994. It is run out of computers at Carnegie Mellon University and archived on my personal computer. The list currently contains about 140 people, including journalists and others interested in censorship issues. The list serves to pass along information in the form of articles, press releases, censorship reports, and opinions. It also allows opponents of censorship to strategize. Because the topics covered by the list are similar to those covered in Justice on Campus, the list sometimes includes material that could be considered "indecent" or "patently offensive." Minors are not excluded from this list.
11. Besides maintaining Justice on Campus and the fight-censorship list, I also use other online services that include sexually explicit material. I want to be able to continue to read such material on online services other than Justice on Campus and the fight-censorship list.
Declan McCullagh
Subscribed and sworn to before me this ___ day of February, 1996
Notary Public