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 (Distributed with the author's permission)

 WHO'S USING WHO?
 MARTIN RIMM AND THE ANTIPORN ACTIVISTS
 By Mike Godwin
 About 1500 words
  
  
 To those who have been investigating the scandal behind the fraudulent
 Martin Rimm/Carnegie Mellon "cyberporn study" and the Time magazine cover
 story that hyped it, it's long been known that there was some kind of
 connection between Rimm's efforts and those of antiporn activists --
 particularly those on the Religious Right.
  
 But the precise nature of the connection has not been clear until
 recently. Thanks to information provided by New York Law School professor
 Carlin Meyer and others, it is now apparent that Rimm had the assistance of
 antiporn activists, including Bruce Taylor of the National Law Center for
 Children and Families.
  
 Thus, at the same time Rimm, himself no fundamentalist, was using the
 antiporn activists to contrive a place for himself on the national stage,
 the antiporn groups were using Rimm to manufacture evidence that
 "cyberporn" was out of control and needed to be regulated.
  
 Figuring out the connection between Rimm and the Taylor gang is like
 assembling a mosaic from very numerous and very tiny pieces. Still, the
 whole picture begins to come together once one notes certain interesting
 facts:
  
 1) On November 5, 1994, Marty posted a message in a public Usenet
 newsgroup that included the following response to Carl Kadie:
  
 'You're a good guy, Carl. I'm the principle investigator of the study,
 "Marketing Pornography on the Information Superhighway." It is being
 refereed and had the assistance of a lawyer who has argued obscenity
 cases before the Supreme Court.'
  
 2) Footnote 93 of Marty's article includes the following text:
  
   'Another competing
    vision consists of a revised version of the Miller standard. Instead
    of using community standards, the proponents of the revised Miller
    standard advocate the creation of a per se list of sexual activities
    which are automatically and irrevocably deemed obscene. See Bruce A.
    Taylor, A Proposal for a Per Se Standard, 21 U.Mich. J.L. Ref. 255
    (1987-88).'
  
 3) The Bruce Taylor article appears in the same volume of the
 U. of Mich. Journal of Law Reform that includes the Dietz-Sears
 study, upon which Marty based his own study (see, e.g., Rimm
 footnotes 15 and 56).
  
 4) After ordering a copy of that volume of the Journal of Law Reform,
 I discovered the following language in footnote 13 of the Bruce Taylor
 article (in which Taylor also boasts of his 15 years of experience in
 prosecuting obscenity):
  
 "In all, this author has tried over 65 obscenity jury cases in several
 states and has argued over 50 appeals before the Ohio Court of Appeals,
 the Ohio and Colorado Supreme Courts, United States Courts of Appeals for
 the Sixth and Ninth Circuits, and the United States Supreme Court."
  
 5) Bruce Taylor is currently heading the National Law Center for Children
 and Families. This means he *currently* shares a Fairfax, Va., suite of
 offices with H. Deen Kaplan.
  
 6) Kaplan, as we have long known, is a) a third-year law student at
 Georgetown, b) a vice president of the National Coalition for Children and
 Families (formerly the National Coalition Against Pornography, aka NCAP),
 and c) a member of the Georgetown Law Journal staff throughout last year
 and currently on the journal's articles-selection committee.
  
 7) Bruce Taylor's organization, the National Law Center, formerly employed
 John McMickle, who is now on the staff of Sen. Chuck Grassley and who was
 the author of Grassley's net.indecency legislation. McMickle, who,
 according to Danny Weitzner of the Center for Democracy and Technology,
 is known to be a protege of Taylor's, was the person who had
 advance knowledge of Marty's study (this is clear from a letter McMickle
 to university administrators at Rimm's alma mater, Carnegie Mellon, in
 early November of last year), and who later planned to call Marty as
 a witness to Grassley's Senate hearing. A year ago at this time, McMickle
 was sharing offices with Deen Kaplan in Fairfax, VA. The various antiporn
 groups at that suite (The National Law Center, the National Coalition, and
 Donna Rice-Hughes's group, "Enough is Enough!") apparently prefer to
 office only with likeminded individuals.
  
 8) Deen Kaplan is known to have provided Sen. Jim Exon with the "blue
 book" of online porn that the Senator brandished on the Senate floor.
  
 9) Sen. *Grassley's* indecency legislation was introduced on June 6 of
 this year, at approximately the time the issue of the Georgetown Law
 Journal was originally set to be published. Hearings on the Grassley
 legislation were set for July 24. Coincidentally, perhaps, that was four
 weeks to the day after Time's "Cyberporn" cover story hit the streets.
 Or perhaps it wasn't purely coincidental -- Rimm seems to have known
 in March that his study would be featured in a Time cover story.
  
 10) Increasingly during the spring of 1995, Rimm expressed concern to many
 people that his article might be perceived as anti-porn, and he redoubled
 his efforts to get his legal footnotes approved by civil-libertarian
 lawyers, including me, Danny Weitzner of Center for Democracy and
 Technology, and Stephen Bates, then an Annenberg Fellow.
  
 11) Perhaps in the knowledge that the source of help on the legal
 footnotes could result in his study's being branded as a political,
 antiporn document, Rimm stressed the following in his request to me in
 April:
  
 "In the meantime, we would
 greatly appreciate an independent check of our legal notes, which the
 journal helped us with. (No one on our team is a lawyer)."
  
 12) In the December, 1994, version of the study, which had undergone no
 editing by any of the law journal staff, we see the following text in
 footnote 53:
  
   'The second of the competing
    visions consists of a revised version of the Miller standard. Instead
    of using community standards, the proponents of the revised Miller
    standard advocate the creation of a per se list of sexual activities
    which are automatically and irrevocably deemed obscene. Bruce
    Taylor, A Proposal for a Per Se Standard, _______ J.L. Ref. ______
    (1988).'
  
 13) Except for minor changes, the sentences from footnote 53 in the
 December version are echoed in footnote 93 of the final version of
 the Rimm study. The main difference is that the citation for the Bruce
 Taylor article is not complete. The most reasonable inference from this
 fact is that the person who added that citation was pulling it from
 memory, and left blanks so that the cite checkers at the law journal
 would know to pull up the specifics. This is a strong indication that
 a) the drafter of this footnote was a lawyer or law student, and
 b) the drafter knew what kinds of assistance law-journal staffs could
 be expected to provide. Together with the citation format, it strongly
 suggests the likely background of the person who assisted Marty with his
 legal scholarship.
  
 14) In the biographical footnote to Taylor's law-review article, the
 author makes a point of thanking "Len Musil, J.D. 1988, Arizona State
 University, who is clerking for CDL [Citizens for Decency through Law,
 the antiporn organization then headed by Taylor], and who used his skills
 as editor of his university and law school newspapers to edit this work
 and conform its style to proper form."
  
 15) According to sources at the Georgetown Law Journal, the purported
 timetable for Rimm's and the law journal's interactions goes something
 like this:
  
 11-18-94
 Time article on the CMU censorship flap, written by Philip Elmer-DeWitt,
 becomes available on America OnLine. It is also available in the 11-21-94
 issue, which may have been on the stands on 11-14-94.
  
 11-14-94 to 12-5-94
 In this 21-day interval, Meredith Kolsky, articles
 editor for the Georgetown Law Journal, reads about Rimm's study, gets
 a copy from Marty Rimm, suggests its publication to the Georgetown Law
 Journal staff, the GLJ meets and decides to accept the article, and
 Carlin Meyer is selected as a probable contributor.
  
 12-5-94
 Meredith Kolsky solicits Carlin Meyer's review of the Rimm article.
  
 12-7-94
 Kolsky thanks Meyer for agreeing to write a comment on the Rimm article
 and ships a copy of the then-current draft of the study to Meyer. It is
 from this draft -- the words "Copyright 1994" and "DO NOT CIRCULATE!!"
 appear prominently on the cover -- that I have taken the earlier version
 of Rimm's obscenity/child-porn legal footnote.
  
 Based on this breathtaking timetable (it's astonishing that the
 law-journal staff members physically survived the rapid acceleration of this
 editorial decisionmaking process), it's certain that Marty had legal assistance
 prior to the official formal submission article to the law journal. Who
 gave that assistance?
 
 The likeliest answers to this question: Deen Kaplan, the Georgetown Law
 Journal staff member and antiporn activist, is the author of
 the legal footnotes and law-related text of the Rimm article, while
 Bruce Taylor, who continues to spearhead the attempts to pressure
 Congress into censoring the Internet, is the Supreme Court obscenity
 litigator who served as a "referee" for Rimm.
  
 If Rimm's academic fraud were a crime, Taylor and Kaplan, among others,
 could easily be listed as unindicted coconspirators. The real crime,
 of course, is that, even though the Rimm study itself has been
 discredited,  the larger fraud -- the antiporn groups' ongoing
 efforts to paint the Internet as vice den in dire need of Congressional
 action -- continues unabated.
  
 
  
 SIDEBAR: THE OBSCENITY FOOTNOTE
 By Mike Godwin
 About 1000 words
  
 How much help did Martin Rimm receive in his legal footnotes and
 research, and who helped him?
  
 To get an idea of the assistance Marty had clearly received before his
 article was checked by the Georgetown Law Journal editors, take a look at
 Rimm's footnote dealing with the legal and constitutional status of
 obscenity and child pornography.
  
 The footnote appears as Footnote 2 in the Georgetown Law Journal article,
 but it is  was Footnote 1 in the version of the article the law journal
 sent to Carlin Meyer in December of 1994.
  
 I have marked the differences between the earlier and later versions of
 the footnote in the following way:
  
 Material *deleted* from the first draft of the footnote is set off and
 bracked with <<doubled angle brackets>>.
  
 Material *added to* the first draft of the footnoate (i.e., that appears
 in the final draft) is not set off, but appears in [[doubled square
 brackets]].
  
 Here's the footnote:
  
 -------------------
  
 The question of whether a sexually explicit image enjoys First
   Amendment protection is the subject of much controversy and reflects a
   fundamental tension in contemporary constitutional jurisprudence.
   While this article discusses only the content and consumption patterns
   of sexual imagery currently available on the Internet and "adult" BBS,
   the law enforcement and constitutional implications are obvious. Thus,
   it is necessary to briefly discuss the constitutional status of
   sexually explicit images.
  
   Obscene material does not enjoy First Amendment protection. See Roth
   v. United States, 354 U.S. 476 (1957)
  
 <<(opinion of Brennan, J.)>>
  
 ; Miller v. California, 413 U.S.
   15 (1973). In Miller, the Supreme Court established the current
   tripartite definition for obscenity.
  
 <<Id.>>
  
 In order to be obscene, and
   therefore outside the protection of the First Amendment, an image must
   (1) appeal to a prurient (i.e., unhealthy or shameful) interest in
   sexual activity, (2) depict real or simulated sexual conduct in [[a]]
   manner that, according to an average community member, offends
   contemporary community standards[[,]] and (3) according to [[a]] reasonable
   person, lack serious literary, artistic, political[[,]] or scientific
   value. Id. at 25-27; [[see also]] Pope v. Illinois, 481 U.S. 497, [[500-01]]
   (1987) [[(rejecting "ordinary member of given community" test, in favor
   of "reasonable person" standard for purposes of determining whether
   work at issue lacks literary, artistic, political, or scientific
   value)]]; Pinkus v. United States, 436 U.S. 293, [[298-301]] (1978)
   [[(excluding children from "community" for purpose of determining
   obscenity, but allowing inclusion of "sensitive persons" in the
   "community")]]; [[Ginzburg v. United States, 383 U.S. 463, 471-74 (1966)
  (allowing courts to examine circumstances of dissemination to
   determine existence of literary, artistic, political, or scientific
   value);]] see also United States v. Orito, 413 U.S. 139, [[143]] (1973)
  [[(holding that constitutionally protected zone of privacy for obscenity
  does not extend beyond the home)]]
  
 <<Ginzburg v. United States, 383 U.S. 463, 471-74]]>>
  
 .
  
   To complicate matters, all adult pornographic material
  
 <<must be>>
  
   [[is initially]] presumed to be nonobscene.
  
 <<Cf.>>
  
   Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62 (1989)
  
 <<.>>
  
  [[(requiring judicial determination of obscenity
   before taking publication out of circulation);]]
  
 <<See>>
  
   Marcus v. Search
   Warrant, 367 U.S. 717, 730-31 (1961) [[(requiring procedures for seizure
   of obscenity which give police adequate guidance regarding the
   definition of obscenity to ensure no infringement on dissemination of
   constitutionally protected speech)]]. Accordingly, law enforcers and
   prosecutors attempting to pursue an obscenity investigation or
   prosecution face constitutionally mandated procedural obstacles not
   present in other criminal matters. See New York v. P.J. Videos, Inc.,
   475 U.S. 868 (1986). For instance, the so-called "plain view"
   exception to the Fourth Amendment warrant requirement, whereby
   contraband plainly visible to a law enforcement officer may be seized,
   does not apply to allegedly obscene material because, prior to a
   judicial determination, nothing is obscene and therefore, a fortiori,
   nothing be can be considered contraband. See Lo-Ji Sales, Inc. v. New
   York, 442 U.S. 319, 325 (1979) [[(requiring that search warrants contain
   specific description of allegedly obscene items to be seized)]].
  
   In addition to obscenity, one other type of sexually explicit material
   does not enjoy constitutional protection. In New York v. Ferber, 458
   U.S. 747 (1982), the Supreme Court explicitly removed pornography
   depicting minors from the protective aegis of the First Amendment.
   That is, obscene or not, visual depictions of children engaged in
   sexual conduct are not constitutionally protected. Because the
   government interest
  
 <<which the Supreme Court>>
  
   identified [[by the Supreme Court]] as justifying
   removing child pornography from the protection of the First Amendment
   is more urgent than the government
  
 <<interests>>
  
   [[interest]] which
  
 <<justifies>>
  
   [[justify]] denying
   protection to obscenity, and because the child pornography standard is
   far less vague than the obscenity standard, law enforcers and
   prosecutors are not bound by any unique procedural burdens here. See
   United States v. Weigand, 812 F.2d 1239 (9th Cir.), cert. denied, 484
   U.S. 856 (1987).
  
   In sum, the constitutional regime that the Supreme Court has
   established for pornography creates two distinct categories of
   sexually explicit imagery
  
 <<which>>
  
   [[that]] are not protected by the First
   Amendment. While ascertaining whether a particular digital image
   contains a minor is not [[a]] Herculean labor, ascertaining whether a
   particular digital image is obscene in the abstract is well-neigh
   impossible. Accordingly,
  
 <<this Author>>
  
   [[the research team]] will not attempt to pass on
   the question of obscenity as it applies to the digital images that are
   the subject of this
  
 <<Article>>
  
   [[article]].
  
  
 ---------
  
 Two things are immediately clear to anyone accustomed to reading
 law-review articles. The first is that Marty's footnote was scarcely
 edited at all by the law-journal editors -- it was published in much the
 same form as it appears in the December draft. The second is that Marty's
 handling of legal citation form is amazingly good for someone who,
 supposedly, doesn't have a lawyer on his research team. It is this more
 than anything that makes clear that Marty had assistance from someone who
 wanted to make his legal scholarship look good enough for a law journal
  
 Finally, I suspect the transmutation of "this Author" to "the research
 team" came at Marty's suggestion, and not the law-review editors'.