Affidavit in ACLU, et al v. Reno
I, Robert B. Chatelle, of Cambridge, Massachusetts, do hereby depose and swear:
1. I am a member of the National Writers Union (NWU) serving an elected position as the political issues chair. The NWU is a trade union for freelance writers that is registered in New York as an unincorporated non-profit organization and affiliated with the AFL-CIO through the union's membership in the UAW. Our members include technical writers, journalists, book authors, poets, novelists, ghostwriters, corporate writers, cartoonists, and other active writers. The NWU has over 4,000 members nationwide. I submit this affidavit on behalf of the NWU and its members.
2. The NWU has been using the Internet extensively because it allows us to communicate with our members and discuss and publish our writing, receiving nearly instantaneous response. As a non-profit with limited funds, the NWU encourages its membership to use our growing number of on-line services. We have found on-line services to be a cost-effective and efficient method of communicating with our growing membership. We maintain a number of Internet services, such as an Internet World Wide Web page, a file transfer protocol (ftp) site and listservs. I detail each on-line service below.
3. The NWU does not discriminate and is open to all qualified writers, regardless of age, disability, gender, ideology, literary genre, nationality, race, religion, or sexual orientation. In respect to the diversity of our membership and a basic belief in artistic integrity, censoring members' works on the Internet or any other forum would be antithetical to the beliefs of the union. In August, 1995, the NWU Delegates passed a motion affirming our belief in free speech and privacy rights in cyberspace for everyone, including minors.
4. Since July, 1995, the NWU has operated a Web site whose home page, which is an electronic table of contents, is located at http://www.nwu.org/nwu/ and is accessible to anyone on the Internet. The server for this Web site is located in San Francisco, California and is operated by Labornet. Although the exact figure is unknown, NWU officers estimate that more than 100 users visit our site each week. Bruce Hartford, an NWU member and our Secretary-Treasurer, handles the technical aspects of our Web site.
5. The contents of this NWU Web site are strictly controlled. We currently do not allow members to add links from the NWU Web site to their own Internet sites, although the National Executive Board is considering whether to allow it in the future. Many members have linked their own Web pages to the NWU Web page, however. We have no control over who links their Web pages to ours.
6. The NWU Web page does not require any form of registration or payment to access. The NWU believes that individuals should be allowed to access its Web page anonymously and without payment. No payment is necessary for the NWU Web page because it is a service for dues paying members and an effective way to provide information to writers interested in joining our union. Requiring payment or registration for union members would be unnecessary since they already pay union dues and are on our union roll. Compulsory payment or registration for non-union members would unnecessarily burden many from even entering our Web page and possibly dissuade many from joining our union. The NWU would like to continue its Web site as a free public service to writers, both union and non-union.
7. I do not understand what "indecent" or "patently offensive" means. Even if the NWU membership were able to define those terms and remove certain material from our Web pages, our Web pages are linked to other Web pages, the content of which we do not control. These Web pages are linked in turn to other Web pages, forming a virtually endless chain. Therefore, even if we attempted to comply with this law on our own Web pages, it would be technically infeasible to screen all materials on this virtually endless chain of links.
8. The NWU ftp site located at ftp://ftp.netcom/nw/nwu allows users to download available NWU documents on-line. Our ftp site currently contains 25 documents, which total approximately 243 pages of text. Our ftp site is operated by Netcom, an Internet server company with computers located around the country. Just as with our Internet Web page, all documents available via ftp are official NWU documents and are products of national and local NWU committees, campaigns, and boards. The personal work of union members are not posted. Submissions to the ftp site must proceed as follows: each group decides on the content of documents that best represent the views of the group. Documents for posting to the NWU ftp site are sent by each group's chair to NWU member and co-chair of the NWU New Technologies Campaign, Vicki Richman, who handles the technical aspects of preparing the documents for the ftp site. The number of documents handled by Ms. Richman make it infeasible to check the content of each document. Therefore, the editor of documents for each group is responsible for the content. I believe that some of the documents, especially those discussing sex (in the context of censorship), may be considered "indecent" or "patently offensive," which could place NWU at risk of criminal prosecution or other sanctions under this statute.
9. As political issues chair, one of my duties is to edit "The PIC Newsletter," which is available in print format and on the NWU ftp site. Censorship is one of the most important political issues we face as writers. Much of the material in the newsletter concerns censorship issues and may contain candid discussion of sexually explicit material that is the target of censorship attempts. For example, the continuing controversy surrounding funding for the National Endowment for the Arts has been the subject of the PIC newsletter. The newsletter describes in detail some of the more controversial works regarding the NEA, such as Andres Serrano's award-winning photograph, "Piss Christ." Describing in detail the content of such works is not gratuitous, but is meant to further serious discussion about the way controversies like those surrounding the NEA affect members of the NWU.
10. One of the most popular ways for members to communicate is by subscribing to our listservs, "nwu-chat" and "nwu-queer," both of which are also open to non-members. Listservs are e-mail lists in which a message to the listserv is sent to all subscribers. The registration process for these listservs is automated and requires no human intervention. A user simply sends an e-mail to listserv@netcom.com with the message, "subscribe (listserv name) (user e-mail address)." No identification beyond an e-mail address is required to subscribe. There is no process that identifies how many listserv subscribers are minors. Following our 1995 motion regarding free speech and privacy rights in cyberspace and our tenet barring prejudice based on age, we currently have no intention of instituting a registration process meant to screen out minors. Additionally, we currently do not intend to monitor all messages to the listservs and screen out materials that might be considered "indecent" or "patently offensive."
11. NWU-queer is for working writers of all ages who are gay, lesbian, bisexual, or transgendered, their colleagues and all other working writers covering the issue of sexual orientation. Topics addressed include jobs, politics, spirituality, activism, health, and erotica. NWU-queer currently has 150 subscribers and is a serious discussion group that does not circulate gratuitous pornography. I am concerned that much of the writing about erotica and sex, despite its artistic or literary merit and relevancy to the listserv discussion, might be considered "indecent" or "patently offensive" under this statute. We believe that both youth and adult writers are entitled to these kind of discussions in order to assist their work.
12. NWU-chat, which currently has 250 subscribers, is a forum for anything relating to writing or the publishing industry. The listserv's main topics are writers' rights (especially electronic rights and copyright in general) and practical considerations such as where to get certain works published. We also discuss other topics such as censorship and the imprisonment of political dissidents. Discussions of censorship often entail explicit explanations of the artistic work threatened with censorship. I am concerned that some of these graphic explanations of sex and erotica might be considered "indecent" or "patently offensive" under this statute. Just as with nwu-queer, the NWU currently has no plans to use a moderator to screen out messages on the listserv that might be considered "indecent" or "patently offensive" nor are we currently planning to attempt to prevent minors from subscribing to the listserv.
13. Although the listservs are not moderated, we do have guidelines on participation. For example, cross-posting or "spamming," which is posting the same message to several listservs, is frowned upon. Listserv members are urged to subscribe to all listservs relevant to their work or interest so that all submissions are relevant to the specific discussion of each listserv. Anyone posting materials that are not meant to contribute to the discussion group are generally chastised (called "flaming") by other members.
14. A number of NWU members, including myself, maintain our own Web pages. The contents of these Web pages are varied: some members advertise their writing services, publish their works, provide information about the NWU, or discuss political issues important to them as writers. Most of these sites contain both graphical and textual material.
15. My own Web page, accessible to anyone at http://world.std.com/~kip/, clearly states, "I am a writer and am privileged to serve currently as the Political Issues Chair of the National Writers Union." My Web page currently receives between 2,000 to 3,000 visits per week and contains links to gay male erotic fiction that I write. Some of the print magazines that I write for include Mandate, In Touch for Men, and the Advocate's FRESHmen. I am concerned that my work might be considered "indecent" or "patently offensive" under the current statute because it deals with gay sex.
16. Before providing access to my works, I state clearly that my stories "contain explicit descriptions of sexual activity between consenting men. If such stories are not to your taste, I suggest you not read them." I do not know if this disclaimer would be an appropriate course of action in minimizing the risk of criminal prosecution or sanctions under this statute. Nevertheless, at the present time, I have no intention of either further changing the contents of my Web page or attempting to prevent minors from accessing my Web page.
17. Mandatory registration or fee are two courses of action that could decrease the risk of criminal prosecutions or sanctions against individual Web page operators like myself because they would ensure that fewer minors gain access to material that could be considered "indecent" or "patently offensive." However, for individually run Web pages like mine and those of other members, a registration process would be technically and economically infeasible. Since most of these Web pages are maintained by only one person, the amount of time it would take to register each visitor would be costly, inefficient, and eventually dismay some members from beginning or continuing their Web pages. Even if a fee were instituted on these Web pages, for individual operators the time and cost of processing payments would probably outweigh any revenue generated and prevent operators from regularly updating the contents of their Web pages.
18. In addition to my work as a writer of gay literature, I am also an activist in the lesbian and gay community who uses the Internet for lobbying and exchanging vital information among activist groups. As an activist, I would very much like to continue using these Internet resources. I understand this law could eliminate or drastically reduce the materials available on certain gay and lesbian resources I have found on the Internet. Likewise, as a user I may be subject to criminal prosecution or other sanctions by discussing some lesbian and gay issues on-line. I do not want to have to censor my own submissions to various on-line forums or educational institutions in order to avoid criminal prosecution or other sanctions.
I swear that the foregoing statements are true to the best of my knowledge and belief.
Robert B. Chatelle
Subscribed and sworn before me on this Day of February, 1996.