CDA Court Challenge: Update #5

Rohit Khare (
Wed, 10 Apr 96 12:12:00 -0400

The CDA Challenge, Update #5
By Declan McCullagh / / Redistribute freely

In this update: Yet Another CDA Lawsuit: Fred Cherry v. Janet Reno
Deception and deceit from DoJ's Jason Baron
URLs for the DoJ's dirty picture list
The true identity of Grey Flannel Suit

April 9, 1996

PITTSBURGH, PA -- Fred Cherry wants a Federal court to uphold his
right to flame.

Lambasting "homonazis" on USENET is his inalienable right under the
First Amendment, argues the notorious netizen in his anti-CDA lawsuit
filed yesterday in New York City on behalf of "Johns and Call Girls
United Against Repression, Inc."

Cherry's beef with the law is that under its ban on "indecency," when
he gets flamed by "Australian homosexual nazis" he won't be able to
flame back. His complaint charges that his "Australian opponent will
have MORE freedom of speech" than he does -- unless the CDA is struck

The self-taught amateur lawyer attached 20 pages of net.flamage as his
sole exhibit. One example that was spammed all the way from to
alt.christnet.second-coming.real-soon-now: "Your ass is so blocked up
that you do need some therapeutic relief for your constipation -- a
condition which has backlogged all the shit right back up into your
head, Fred."

The indefatigable Cherry replied:

So, ramming a huge dick up my ass would be a therapeutic measure,
would it? You homos are the chief cause of AIDS in the United
States with your huge dicks being rammed up each other's asses. And
then you homos go around whining that the government isn't doing
enough to find a cure for AIDS. [12/22/95]

Ya gotta love this guy. He sent me mail describing his legal strategy,
concluding: "Can anyone deny that I am indeed the greatest amateur
lawyer since Caryl Chessman?" Of course Chessman -- California's "Red
Light Bandit" rapist -- was executed in 1960, his jailhouse lawyering
failing him in the end.

Cherry's lawsuit was easy to prepare. He grabbed the ACLU's complaint
from their web site, printed it out, added a few grafs about his
net.nazi adversaries, and trotted off to Federal court. When Cherry
filed his suit, which he's moved from Brooklyn to Federal court in
Manhattan, he wrote:

I am primarily a political activist, working for the repeal of laws
criminalizing adult prostitution and the patronizing of adult
prostitutes. Over the past thirty years I have found that, in the
United States, homosexuals are the worst enemies of the civil
rights of women prostitutes and their male clients.

The Cherry v. Reno case, refiled at docket number 96 Civ. 2498, most
likely will be consolidated with the American Reporter case, which is
also moving forward in the U.S. Second Circuit Court of Appeals.

A.R. editor Joe Shea will probably fight it. Shea refused to join our
lawsuit because he can't stand the ACLU and wants to do his own thing,
so he'll probably try to keep Cherry's case from being joined with
his. In fact, he accused the ACLU of putting Cherry up to it.


I would never have suspected the DoJ attorneys of trying to deceive
Federal judges, but now I wonder.

The DoJer I've had the most contact with is Jason Baron, a short,
portly guy who tries to land roundhouse punches during
cross-examination but instead keeps slipping up on technical terms. He
also wrote the Justice Department's reply to our initial complaint. In
that brief, the Civil Division lawyer uncritically cited Marty Rimm's
cyberporn study -- featured last summer on the cover of TIME magazine
-- as an authoritative reference on net.smut:

This article describes material located primarily on USENET
newsgroups, i. at 1865-76, and on adult commercial bulletin boards
(BBS), i. at 1876-1905. Defendants offer this as an initial reference
of the availability and nature of obscene and indecent material from
some on-line sources, such as USENET and BBS. [sic]

Maybe Baron thought nobody would notice. But there's no excuse for not
knowing that the study was deliberately fraudulent: The New York Times
printed an editorial exposing it; Rimm's connections with "family
values" groups have come to light; Donna Hoffman and I run extensive
web sites debunking the study; Carnegie Mellon University claims to be
investigating the ethical misdeeds of their former undergraduate.

Even attorneys who used to work within Baron's division of the Justice
Department complain that Baron deliberately foisted this fraud off on
Federal judges:

I'm embarrassed... They should have mentioned that the "study" came
under heavy critical fire almost immediately upon release. I trust
the opposition will make hay of this omission. In this context, this
"study" is not just another controversial report, but one whose
provenance is well known to be in doubt among the relevant actors.
That much should have been ackowledged in the quoted footnote, at
least along the lines of, "While the methodology of this study has
been challenged, defendants believe it to represent..." etc. [4/7/96]

By citing this study and appending its complete text without informing
the court that it was a hoax, Baron revealed the impoverished ethics
of the Justice Department. Interestingly, the Code of Professional
Responsibility and the Rules of Professional Conduct make it a
disciplinable offense for a lawyer to "knowingly use perjured
testimony or false evidence." Under Title 11, attorneys can be
sanctioned for introducing false evidence.

Perhaps we shouldn't be too surprised by all this. After all, Baron is
the same attorney who confuses EFF with IETF -- not to mention his
additional duties as the DoJ's courtroom-cop. Recall that when I was
asking the mysterious Grey Flannel Suit a question, Baron came over
and interrupted us. Now I've learned that he's threatening to report
me to "higher authorities" if I talk to his witnesses again. (!)

Yeah, Grey Flannel Suit is going to take the stand. He's none other
than the DoJ's cybersexpert witness -- Special Agent Howard A.
Schmidt from the Air Force Office of Special Investigations.

Guess that explains why Baron was so desperate to keep me from talking
with him the other day.

Baron's authoritarian streak showed again during the March 21 hearing,
when I joined some members of the press in paging through the ACLU's
copy of the DoJ's dirty pictures binder. Baron charged over and
snatched it away, snarling: "Not available to the public." Well, the
URLs ended up in my mailbox anyway, so here they are for your

The DoJ has full-color printouts of these images, which are sexually
explicit but *not* obscene -- Baron wanted to remind the court that
placing these JPEGs online publicly would not be a criminal act
without the CDA.

For someone who's defending a ban on smutty stuff on the Net, Baron is
surprisingly embarrassed to talk about it. Vanderbilt Professor Donna
Hoffman reports:

[Baron] deposed me for over 7 hours, beginning on a Monday morning
at 9am. The most interesting part of the deposition was when he
brought out several large binders and started going through some of
the material in them and looking increasingly uncomfortable.
Eventually, he spoke and started to apologize saying he might have
to show me some materials and his New England background made him
feel uncomfortable about it.

He honestly was squirming and sweating a bit and then, after a brief
lunch, we resumed and he did eventually show me some materials, but
they were not surprising or of the type that I would have thought
would make him squirm like that.

I did wonder if it was some sort of "act," but he seemed genuinely
embarassed. In hindsight, I wonder if it was because I am a woman and
that was really the part that made the idea of showing me sexually
explicit materials uncomfortable for him.

I guess that Baron is a true "gentleman" who believes that certain
topics like dirty pictures are unmentionable in mixed company.
Avoiding embarrassment is just another reason to censor the stuff!

On April 12, Grey Flannel Suit (aka Special Agent Schmidt) will take
the stand and snarf around the net for dirty pix. He'll be followed by
our last witness, MIT's Albert Vezza, and then BYU/CMU's Dan Olsen.

Stay tuned for more reports.


We're back in court on 4/12, possibly 4/15, 4/26 for rebuttal, and 6/3
for closing arguments.

Mentioned in this CDA update:

DoJ's brief citing Marty Rimm's cyberporn study:
Text of complaint from Fred Cherry v. Janet Reno:
Flamewar attached as exhibit to Fred Cherry v. Janet Reno:
Fred Cherry's reasons why he filed his lawsuit:
Relevant excerpt from Fred Cherry's original complaint:
Rimm ethics critique <>
Censorship at CMU <>
The American Reporter <>
Grey Flannel Suit <>
Previous cases DoJer Jason Baron worked on:
Joe Shea's complaints about ACLU wanting to "stand alone in the limelight":

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