April 3, 1997
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3 AMERICAN LIBRARY ASSOCIATION;
FREEDOM TO READ FOUNDATION, INC.;
4 NEW YORK LIBRARY ASSOCIATION;
WESTCHESTER LIBRARY SYSTEM;
5 AMERICAN BOOKSELLERS FOUNDATION
FOR FREE EXPRESSION; ASSOCIATION
6 OF AMERICAN PUBLISHERS, INC.;
BIBLIOBYTES, INC.; MAGAZINE
7 PUBLISHERS OF AMERICA, INC.;
INTERACTIVE DIGITAL SOFTWARE
8 ASSOCIATION; PUBLIC ACCESS
NETWORKS CORPORATION; ECHO;
9 NEW YORK CITY NET; ART ON THE
NET; PEACEFIRE; and AMERICAN 97 Civ. 0222
CIVIL LIBERTIES UNION,
GEORGE PATAKI, in his official
14 capacity as the Governor of the
State of New York; and
15 DENNIS VACCO, in his official
capacity as Attorney General of
16 the State of New York,
19 April 3, 1997
HON. LORETTA A. PRESKA,
CHRISTOPHER A. HANSEN
4 ANN BEESON
Attorneys for Plaintiffs
LATHAM & WATKINS
6 Attorneys for Plaintiffs
BY: MICHAEL K. HERTZ
7 ANAT HAKIM
8 ARTHUR EISENBERG
Attorney for Plaintiffs
SONNENSCHEIN NATH & ROSENTHAL
10 Attorneys for Plaintiffs
BY: MICHAEL A. BAMBERGER
DENNIS C. VACCO
12 Attorney General of the
State of New York
13 BY: JAMES HERSHLER
14 Assistant Attorneys General
1 (Case called)
2 (In open court)
3 THE COURT: Mr. Hansen, good morning.
4 MR. HERSHLER: Defendants are ready, your Honor.
5 THE COURT: Good morning. Mr. Hershler, thank
6 you for your revised exhibit list, which we had discussed
7 yesterday in light of the State's withdrawal of Miss Pirro.
8 Is there anything, counsel, you would like to do before we
10 Is there anything else, ladies and gentlemen, on
11 yesterday's draft of the joint stipulation of facts? Are
12 there any changes or anything that you can pass on?
13 MR. HANSEN: With the Court's permission, I would
14 like to ask Miss Beeson to address that on the plaintiffs'
16 THE COURT: Miss Beeson?
17 MS. BEESON: Your Honor, we did last night, as
18 you know, discuss with the defendants the changes needed,
19 and we have now produced a copy of the stipulations that
20 shows in bold all of the stipulations that we could not yet
21 agree on and also showed in highlights a few other minor
22 language changes.
23 THE COURT: From yesterday's draft.
24 MS. BEESON: Yes, from yesterday's draft. I have
25 just ten minutes ago given this copy to Miss Lahiff, and I
1 have also given her a copy in which all of the changes have
2 been made, and the bolded paragraphs have been removed, and
3 so that is the current status from our end.
4 THE COURT: So I am clear when I am reading it,
5 the bolded materials are the ones that are still in
7 MS. BEESON: Yes.
8 THE COURT: And the otherwise highlighted
9 materials are the changes from yesterday's draft?
10 MS. BEESON: Yes.
11 THE COURT: Thank you. Off the record.
12 (Discussion off the record)
13 THE COURT: What else, ladies and gentlemen,
14 before we start?
15 MR. HANSEN: I think the only other housekeeping
16 matter would be to move the exhibits in, if you want to do
17 that before we call the first witness. Plaintiffs would
18 move the admission of Plaintiffs' Exhibits 1 through 57,
19 which have been previously marked and submitted to the
21 THE COURT: Any objections, Miss Lahiff?
22 MS. LAHIFF: Yes, your Honor, as to certain
23 relevancy objections, but I imagine we will take those in
25 THE COURT: When you want to make the objection,
1 you will let me know.
2 MS. LAHIFF: Thank you, your Honor.
3 THE COURT: And, Mr. Hershler, did you want at
4 this time to move the exhibits on your revised list, the
5 April 2 list?
6 MR. HERSHLER: Your Honor, I had one additional
7 item which I have together here, and, yes, we do want to
8 move the admission of all those exhibits with the additional
10 THE COURT: Mr. Hansen, with respect to the April
11 2 list?
12 MR. HANSEN: We object to one of the exhibits,
13 your Honor, and only one. I think one of the exhibits is a
14 magazine article from Internet World, which discusses the
15 author's opinion as to the merits and lack of merits of
16 certain parental blocking software. Without the opportunity
17 to cross examine the author, I believe that introducing that
18 exhibit would be purely hearsay, and we object to its
19 admission. The remaining exhibits we don't object to.
20 THE COURT: Mr. Hershler?
21 MR. HERSHLER: Your Honor, that exhibit is
22 essentially going to be used for impeachment purposes with
23 respect to plaintiffs' witness that they are producing
25 THE COURT: Do you want to hold it now, Mr.
2 MR. HERSHLER: I am willing to do that.
3 THE COURT: All the others are received. And as
4 to additional exhibits, please?
5 MR. HERSHLER: I have one additional. May I
6 approach the bench?
7 THE COURT: Yes, sir. This is marked as
8 Defendant's Exhibit 7. Do you want to describe it for the
10 MR. HERSHLER: It is a downloaded reproduction of
11 the Catholic online home page. It was shown to one of
12 plaintiffs' witnesses in the course of a deposition, and
13 certain questions were asked regarding it.
14 THE COURT: Any objection?
15 MR. HANSEN: No objection, your Honor.
16 THE COURT: Received.
17 MR. HERSHLER: Your Honor, one other thing. You
18 had mentioned yesterday that we could submit excerpts from
19 the legislative history of the Act.
20 THE COURT: I don't think we talked about
21 excerpts. I thought we talked about additional legislative
22 history other than the items that were on Miss Hakim's
24 MR. HERSHLER: I believe that's what I prepared,
25 and I have an affidavit annexing those items.
1 THE COURT: Why don't you hand it up. Have
2 plaintiffs seen it?
3 MR. HANSEN: We received a copy approximately ten
4 minutes ago. We are reviewing it right now. We may have an
5 objection, but we haven't had a chance yet to look at it
7 THE COURT: Mr. Hershler, would you mind handing
8 it up? Then to the extent the plaintiffs have an objection,
9 you will let me know at some point in time.
10 MR. HERSHLER: Thank you, your Honor.
11 THE COURT: Mr. Hershler?
12 (Discussion held off the record)
13 THE COURT: Anything else?
14 MS. LAHIFF: Yes, your Honor. We move for the
15 production of the ACLU solicitation of plaintiffs. While we
16 received the correspondence between Art on the Net and
17 Kinsky, we didn't receive the solicitation between the ACLU
18 and Art on the Net. Actually it wasn't specifically
19 directed to Art on the Net. It was something I believe was
20 posted on the Internet.
21 THE COURT: Mr. Hansen?
22 MR. HANSEN: This is the matter we discussed a
23 bit yesterday. What happened was we were contacted by an
24 artist who participates in Art on the Net about his concern
25 over this Act. Then as a result of his interest and his
1 communication with the head of Art on the Net, we then sent
2 him a letter explaining what the Act was about and what it
3 would mean if they were to become plaintiffs in the case.
4 That letter was not posted on the Internet. It was a
5 one-to-one communication with Art on the Net's head. It
6 includes such discussion as to what it would mean to be a
7 plaintiff, fees and costs involved, and the retainer
8 arrangements, as well as a discussion of what the law is
9 that we would be challenging. It is our view that that
10 document is an attorney/client privilege document and that's
11 why we did not produce it this morning.
12 THE COURT: Is that the only document at issue
14 MR. HANSEN: That's correct. There was a letter
15 then from the head of Art on the Net to all of her artists,
16 one of whom is going to testify. That letter we did produce
17 to the defendants.
18 THE COURT: Would you at a convenient time hand
19 up the document in dispute for my review, and then maybe
20 there is more argument to be had on it.
21 MR. HANSEN: I have a copy right now. I would be
22 happy to hand it up at this time.
23 THE COURT: Anything else?
24 MS. LAHIFF: Yes, your Honor. During the
25 deposition of Mr. Burrington, I moved for the production of
1 several exhibits, the terms of service, Mr. Burrington's
2 testimony, deposition testimony, in the ACLU case and in
3 other matters. I am not sure whether or not plaintiffs are
4 prepared to turn that over.
5 THE COURT: Have you discussed this with them?
6 MS. LAHIFF: During the deposition they said they
7 would --
8 THE COURT: Raise the matters with plaintiffs
9 first, and then if there are disagreements that you need to
10 raise, I would be happy to listen to them.
11 MS. LAHIFF: Thank you, your Honor.
12 THE COURT: Is there anything else we have to do
13 before we start?
14 MS. LAHIFF: May we make a record about Miss
15 Pirro's testimony, your Honor?
16 THE COURT: Your withdrawal of her as a witness?
17 MS. LAHIFF: Over our objection.
18 THE COURT: No. You withdrew her yesterday. You
19 said, "We withdraw Miss Pirro as a witness." That's the
20 record. What else?
21 MR. HANSEN: Nothing from plaintiffs, your Honor.
22 THE COURT: That is the fact, is it not, Miss
23 Lahiff, that you said, "We withdraw Miss Pirro."
24 MS. LAHIFF: Yes, your Honor. I guess what I
25 intended was that because the Court seemed adverse to her
1 testimony, we would withdraw but over our objection.
2 THE COURT: You don't withdraw over your
3 objection. You said yesterday, "We withdraw Miss Pirro,"
4 and that's what was said, and that is the state of the
5 record. Anything else?
6 MS. LAHIFF: May we state the reason why we
7 withdrew her, your Honor?
8 THE COURT: I don't think it's relevant. You
9 withdrew her. Those are your considerations, and in fact
10 they might have been your privilege considerations.
11 MR. HERSHLER: Thank you, your Honor.
12 THE COURT: Anything else? May we start, please?
13 MR. HERSHLER: Defendants call Mr. Michael
14 McCartney to the stand.
15 MICHAEL McCARTNEY,
16 called as a witness by the Defendant,
17 having been duly sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MR. HERSHLER:
20 Q. Good morning, Mr. McCartney.
21 A. Good morning.
22 Q. Could you please give us your business address
23 for the record?
24 A. Office of the New York State Attorney General's
25 office, 107 Delaware Avenue, Statler Towers, Buffalo, New
1 York 14202.
2 Q. What is your present position?
3 A. I am a criminal confidential investigator.