Colorful day in CDA II trial

There is no resolution yet on whether some testimony will be taken in secret, and news organizations filed a suit Thursday seeking to pre-empt a closed-door session.

But witnesses for the plaintiffs found themselves discussing, among other things, Internet sales of sex toys and an online game in which "the hero taunts his enemies about the size of their genitals."

The testimony may at times have ventured into the surreal, but it underscored the huge impact the plaintiffs believe the COPA law would have. The first witness, Christopher Barr, vice president and editor in chief of technology Web site CNet Inc. (Nasdaq:CNET), testified that even though he doesn't believe that stories on the site dealing with issues such as online sex chats could be considered "harmful to minors," others might think so. If the site were sued under COPA for posting such material, and had to erect registration barriers around some content as a result, both traffic to the site and advertising support would drop off, imperiling the company's business model, he said.

"There are subjects that are written about, reported upon, that are of a sexual nature," Barr said. "My reading of the act makes me think that we would be subject to it" for posting such stories, he said.

He cited as an example a story on CNet's online gaming section about the protagonist of a game called "Shadow Warriors," who uses sexually-explicit language "to taunt his enemies."

Rather than making users submit registration codes or credit card numbers to see such content, "We would simply self-censor," Barr said.

Business stopper
The plaintiffs' next two witnesses, both operators of small ad-supported Web sites, testified that COPA could shut them down.

Mitch Tepper, operator of SexualHealth.com , which disseminates sex advice targeted particularly at the disabled, said he believes the law is so vague that someone almost certainly could find that his site violated it.

Asking users for credit card data before allowing them access to data on "lotions, feathers and vibrators" is totally unrealistic, Tepper said.

"People are very concerned about confidentiality with this kind of information," he said. "To ask people to identify themselves to me before asking for information they're too embarrassed or ashamed even to ask their doctor about, I think my traffic would stop, and then my Web site would have no value" to advertisers, he said.

Signing up for an "adult verification" service that would act as a front door to the site would mean stigmatizing the site, Tepper said, since most sites that use such services are porn sites.

Asked what the impact would be if he were successfully prosecuted under the COPA law, Tepper, who operates the site out of his home and who is confined to a wheelchair, said he could end up bankrupt.

Anonymity essential
The next witness, PlanetOut site founder and Chairman Tom Rielly, offered similar reasoning for his fears about COPA. The site, founded in 1995 as a network for gays and lesbians, provides a vital service to closeted gays -- one which they would never use if their anonymity was not assured, Rielly said.

Asked why he fears he could be prosecuted under COPA for the content on PlanetOut, Rielly said that although the community of the site's users wouldn't find it offensive, "Many people find just being gay to be 'harmful to minors,'" associating gays with pedophiles, he said.

And minors themselves are a crucial element of PlanetOut's audience, Rielly said, noting that he founded the site to provide support to gay teens because of the isolation he suffered as a teenager.

"I knew I was gay but I was very much in the closet," Rielly said. Having a support line like the PlanetOut site might have helped him during his high school years, when he made four suicide attempts, he said.

Fines and jail terms
COPA, which would make it a crime for profit-oriented Web sites to post material that meets the "harmful to minors" legal standard, carries heavy fines and jail terms for violators.

Judge Lowell Reed Jr. ruled in November that the law must not be enforced pending further litigation. Reed is to make a decision on extending that temporary injunction by Feb. 1, at which point more appeals are likely to be filed. The case could ultimately end up before the Supreme Court, like the original Communications Decency Act, which was overturned on First Amendment grounds.

Open or closed?
In what many viewed as an odd turn of events, the government's insistence upon hearing testimony on sensitive financial matters from some witnesses led to a request by the American Civil Liberties Union-led coalition of plaintiffs for a closed hearing. That request led to Thursday's suit by USA Today, the Associated Press, MSNBC, the New York Times, and Wired News, protesting the proposed secret hearing. (CNet and ZDNet, both also plaintiffs in the case against COPA, did not sign on to the new lawsuit.)

The lawsuit cites the First Amendment, saying "the party seeking closure must show an overriding interest based on findings that closure is narrowly tailored to serve that interest" and said it must prove that a specific injury would result to the witnesses from their financial information being disclosed. Reed is to make a decision on the closed-door hearing by Friday, and the hearing could stretch into Monday.