Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.-- ACLU v. Reno
Public media should not contain explicit or implied descriptions of sex acts. Our society should be purged of the perverts who provide the media with pornographic material while pretending it has some redeeming social value under the public's "right to know'".-- Statement alleged on the Internet to have been made by Kenneth Starr, in a 1987 "Sixty Minutes" interview with Dianne Sawyer. The N.Y. Times asserts that it was a hoax. Apparently Starr never appeared on 60 minutes.
The publication of the Starr Report and subsequent documents and recordings presents a number of issues which go far beyond the dichotomy presented by the traditional arguments for and against free speech. The arguments for and against publication are far more interesting than the mere irony of the fact that "liberals" are among those more likely to have opposed publication and that those most responsible for passing the Communications Decency Act of 1996 are, together with Judge Starr, responsible for the deluge of explicit descriptions of sex acts which has submerged us in recent weeks and threatens to completely drown us in the near future. (As this is being written, Congress is still debating how and when, and how much of the remaining 60 thousand pages of material to bestow upon us.)
I haven't been to Las Vegas or Atlantic City for years, but long ago I decided that Atlantic City was an infinitely sadder place than Vegas. And that was before the Disneyfication of the Desert. Why? Because Atlantic City is within an hour or two drive for millions and millions of people. It is right in the center of the densest population region of this country. On the other hand, it isn't easy to get to Las Vegas. You can't do it by accident. You have to plan. Yes there is pain and suffering in Vegas, but Atlantic City is too easy, it is there. Right on the doorstep of New York City. Right there where millions of poor and destitute can arrive in pursuit of an impossible dream. Old ladies can bus in for day trip. Young girls go there to find the main chance and wind up offering anything in the gray light of dawn just to get home. Why? Because it is there. Very There.
Friday, September 11, 1998, will forever be known as a scarlet letter day in the history of the Internet and this nation. For on that day the Starr Report was released to a breathless world. Millions of people tasted of it. Why? Because it was there. Many issues arise. I have arbitrarily divided them into two categories: (1) Methods of distribution, and (2), what I shall call, for want of a better title, the Decision to Distribute .
The following discussion does not consider whether the material should have been made public but, rather, the distribution itself. The second section of this essay will discussion that more controversial question.
For hours untold millions repeatedly tried to access the official government sites and mirrors where the material was supposed to be available. Some were "lucky" enough to get access, most had to wait. For better or worse, I subscribe to a newsletter called "Jesse Berst's AnchorDesk." Within moments of public release of the material I received an e-mail announcement informing me of a number of commercial mirror sites where instant access was possible. I thought I could go there and quickly download the a file and peruse it off line.
Imagine my surprise when I found that the entire document had already been converted to a primitive HTML format. A long table of contents had been created, each section of the table of contents was a hypertext link to the content in question. Further, footnotes were linked to the main text by hypertext as well. There was no way to download the entire package for offline review.
Although this made the material much more readable than a simple text file would have been, it necessitated repeated access to the web sites to view each section of the report. I have seen a variety of estimates of the number of people who "read" the report online. I suggest this number is greatly exaggerated by the format. Not only would it take a number of accesses just to obtain the report but, quite simply, it is very difficult to read large amounts of text online. At the same time the online news services and the broadcast media began distributing highlights (lowlights?).
By midafternoon photocopiers and e-mail programs were multiplying the text as salacious footnotes spread through America's workplaces. I soon expected that some of the footnotes would be as well known by number as the "good" pages of Peyton Place were memorized by every red blooded American boy in the mid 1950's.
But I was wrong. There was simply too much. Fortunately for President Clinton, what I call "full water glass syndrome" was setting in. Did you ever take a full water glass and place it under the kitchen tap and then turn on the water full blast? Instantly, the glass will be half empty. Too much information too fast. In that torrent of salacious material it made no sense to memorize the details. It was impossible. I have heard less is more. Here, more quickly became less.
But back to my story.
As a distribution means, the Internet had proved a success. With patience, anyone with access to a computer and a great deal of patience could have obtained a complete copy of the report by early evening. Later that night it was possible to find zipped copies of the HTML Files and even of the plain text here and there. Which leads me to my first recommendation:
While we have now proved that it is possible to distribute vast amounts of information to millions of people quickly over the Internet, the problems of access could have been greatly reduced if posting of complete online HTML versions had been delayed for a day or so. Instead, the report could have been made available immediately in zipped format for offline reading. I downloaded a complete HTML version in less than 250 k. Summaries and highlights could have been made available for immediate viewing. Having only summaries and the compressed version available immediately would have greatly eased the burden on the Internet without interfering with the public's right to know.
Complete online distribution could have been delayed at least for a few hours when the initial rush was over.
The government was criticized because their servers couldn't handle the peak load that afternoon. This criticism is completely misplaced. The Thomas server and others utilized that day are apparently designed for about 250,000 hits a day. This level of activity is significant and preparation for mass access to those servers at a significantly higher volume is unnecessary and would be an unwarranted cost burden. Far more effective and efficient was the utilization of commercial mirror sites which have the economic incentive to maintain high access capable servers. This cooperation between government and the private sector should be encouraged and continued.
Saturday morning I opened my front door to pick up my hard copy of the New York Times. I knew the Times would be printing the whole thing, I wondered whether it would come in two plastic bags. After all the report was over 400 pages. But no, there was only one paper. Would it weigh a ton? No. It did not seem any larger than my usual Saturday Times. The whole report appeared in a special section of only 18 pages. And the print was a legible size as well.
I thought I would give up my regular Saturday afternoon nap to read the report. I brought the paper up to the bedroom. Big mistake. I never got past page 3. I guess that would be the equivalent of 75 pages of the original typed report. Had the best snooze I'd had in weeks. Somehow, I never went back to read the rest. But I did learn a few things.
I missed the hypertext links between the table of contents and the text and between the text and the footnotes. Someday someone will invent a book or newspaper-like format with hypertext. Now that will be something. (Actually, a few weeks ago I did see that something like that is in the works. You hold what looks like a news paper, but touching a pen or stylus to a link changes the content. I didn't see much use for it at the time but it certainly would be useful for reading computerized versions of large sets of material. If anyone runs across more information on this format please drop me a note.)
The materials are now out in paper back. I suspect that serious researchers will find the paper back version the most useful, together with offline searchable versions of the report.
A little more than a week later, Congress released a videotape of the President's grand jury testimony together with thousands of pages of supporting documents. Talk about water in the glass. If half the water spilled out when the Starr Report was released, the effect of releasing the video and other materials was overwhelming. And there are 60 thousand pages more to come. But for now, my focus on the means of distribution.
According to the media reports, the number of people who accessed the video via the Internet actually exceeded the number who "read" the Starr Report on line. I really don't know what those numbers mean but I still have trouble with 45 second Quicktime and streaming video clips on my machine. I can't imagine watching 4 hours of material that way. Better to buy the video. I understand once source has it available for one cent as an advertising promotion. The highest price I have heard is only about nine bucks.
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For those still interested in viewing these materials, a combination of online and downloadable documents, including transcripts, reports, supporting documents and rebuttals is available at http://220.127.116.11/starrtext/ This location now includes PDF versions of much of the material for offline reading. .
The official government sources and links for many of the documents can be found at http://icreport.loc.gov/icreport/. This site also has a number of the documents available in PDF.
A downloadable application called Romeo, which will permit offline review and searching of the materials is available at http://www.darwin326.com/romeo/. I have not yet had a chance to try this application.
An excellent, specially formatted, HTML version of the Starr Report is available at http://www.trellix.com/icreport/.
The supplementary materials and transcripts released October 2, 1998 are available from CNN at http://www.cnn.com/icreport/report2/. Thanks to John Dodge's "This PC Week" column in the September 21 issue of PC Week for leading me to the Trellix site.
Jesse Berst's Anchordesk is available at http://www.anchordesk.com/. To subscribe to the Anchordesk mailing list go to: http://www.anchordesk.com/whoiswe/subscribe.html/. Berst's newsletter arrives by e-mail daily with highlights and linlks too articles fropm that day's edition of computer related news.
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Those who have known me for a long time know that I am a staunch supporter of the First Amendment. Most of my web pages carry a blue ribbon and a link to The Campaign for Online Free Speech . My home page proudly bears the quotation from ACLU vs. Reno with which I began this article. It bears repeating:
Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.
The foregoing is from the decision of the three judge district court panel which originally heard the case which overturned the Computer Decency Act. The language of that decision was much stronger than that in the final Supreme Court decision. Unfortunately my link to that decision is broken. However, the final Supreme Court Decision is available online at http://www.aclu.org/court/renovacludec.html.
Still, I was troubled by the decision to release the materials. Not for the hysterical reasons purportedly posited by Judge Dredd... oops, excuse me, Judge Starr, in his earlier incarnation as quoted above. But for what I believe are much more substantive reasons. I will attempt herein to touch on just some of the issues involved.
One of the strongest arguments in favor of publication on the Internet of documents like the Starr Report is that such publication is unmediated. So much of the information we receive is filtered by the producers and editors of the medium through which the information is obtained. The material is presented in such a way that the public is unable to make up its own mind without its opinions having been shaped by the media. I often feel this way.
For example, I wish there were a requirement that there must be fifteen minutes of silence following the delivery of a Presidential speech especially the State of the Union. I would just like long enough to know what I think before someone else tells me what to think. My wife hates to read a movie review before seeing the movie. "Let me make up my own mind, first." she protests when I start to say, "Well, Ebert said . . . "
There is much to recommend unmediated access to information. The problem here is that the Starr Report was not an unmediated presentation. It was the very mediated presentation of allegations of a prosecutor with an axe to grind. The very fact of its presentation without context led to giving the report a much greater weight and validity than a mediated presentation could have afforded. When we first read it did we know that exculpatory material had been excluded? Did the general public understand or know that the grand jury had no input to the report or its conclusions? That the grand jury turns out to have been, ultimately, a coconspirator with Mr. Starr in the presentation of a very unlegal form document with out precedent in our jurisprudence.
Years ago, when I wrote a statement of facts for use in a brief I was filing, I proudly submitted it to a senior attorney for review. I was proud of my use of persuasive language and argument to make my case. My mentor was not pleased. A statement of facts, he said, should be just that, a statement of facts. No adjectives, no argument, just the facts. The good with the bad. If it is material it must be included. But when the reader reaches the bottom line, the facts must be marshaled in such a way as to lead to only one conclusion. That lesson has stood me in good stead over the years. There are places for argument. But not in the statement of facts.
Mr. Starr's Document contains no simple statement of facts. Every purported fact presented is placed there in an argumentative and conclusory context. The reader is not given the opportunity to make up his mind. He is told what to think. The reader is not advised that many of the facts are in dispute and that there is exculpatory information which is not included in the report. The document reads more like a closing argument than a legal analysis. It was been mediated, not by the media, who at least have the theoretical interest of the public in mind, but by the it's creator himself.
Of course it is not quite clear exactly what the Starr Report really is. There is no precedent for such a document in our jurisprudence. Leon Jaworski did not make such a presentation in the Nixon case. He simply presented material to the Congress. Confidential material much of which has never been made public.
Jaworski did make indictments and named Nixon as an unindicted co-conspirator and turned much of his information over to Congress, which then conducted its own investigation. Here we have turned everything on its head. The cart before the horse. Congress is not asked to investigate and come to a conclusion. It is presented with a conclusion and asked to confirm it.
The biggest accusation is that the President lied to a grand jury. But was this grand jury functioning as a grand jury with regard to the President. I have serious questions about that. It seems to have been acknowledged from the start that this grand jury did not have the authority to indict the President. And none of the President's testimony is said to implicate anyone else. The grand jury was not asked to vote on Starr's report. If the President did lie, it was to his Grand Inquisitor not to the Grand Jury, which was never authorized to do anything with the testimony. All the Grand Jury could do was sit and listen. Starr was judge and jury all by himself. The report is his work. Oh, of course, he had a massive staff to help him prepare it but no vote was taken.
The extra-constitutional character of the independent prosecutor must be examined. In the case of Nixon, it must be remembered that Nixon fired his prosecutors. Special remedies were necessary. But Clinton never fired anyone for investigating him. His Attorney General has authorized investigation after investigation of Clinton and his associates. Remember when you wanted to be an FOB (Friend of Bill) . That seems a long, long time ago.
It is amazing that it was a Democratic Congress that insisted on recreating the institution of the Special Prosecutor when the original law lapsed Over the objections of the Republican party.
So now the President is accused of lying to a grand jury - - a grand jury which had no role in preparing the report presented to Congress.
And what of the vaunted secrecy of grand jury proceedings. I have some experience in this area. Years ago I had to dismiss a case seeking a massive administrative fine assessed against a crew leader for smuggling illegal aliens into this country. I discovered that my entire case file had been developed by an investigator who had been deputized to a grand jury. No matter how serious the conduct, all of my information had been obtained in violation of Rule 6(e) of the Federal Rules of Criminal Procedure. And at that stage of the process there was no way to cure the taint.
Years later I did use grand jury information in a civil case. But only after obtaining a specific order for its use from the district court judge. And my use was limited. Even though the information was legally provided to me, I still could not publicly disclose it without further explicit authority from the judge. Fortunately the case settled before it got that far. If the court had ruled against me on my application for further disclosure I would have had to dismiss my case.
Here, Starr went weeks in advance to the Court and obtained specific permission to disclose the material to Congress. But there appears to have been no review by the Court of the specific material and no discussion of what limits might have been placed on Congress' use of the material. Such unlimited authorization makes a mockery of the grand jury process.
Which leads me, at last to the decision to disclose.
Congress, acting blindly voted by a large majority to disclose most of the material which would eventually be received from Starr, in effect, delegating specific disclosure authority to the Judiciary Committee.
On September 9, 1998, Starr dumped 36 cartons of material on the Capitol doorstep. Within 36 hours, the Judiciary Committee voted to make public the entire report and over 3000 pages of supporting documents.
The amazing thing is that the decision to disclose this material was made before a single member of Congress had reviewed the report. Let me say that again: THE DECISION TO DISCLOSE THIS MATERIAL WAS MADE BEFORE A SINGLE MEMBER OF CONGRESS HAD REVIEWED THE REPORT.
Forgive me for shouting. Whether or not you agree with the ultimate need for disclosure, the decision to disclose without review was one of the most reckless examples of dereliction of duty in the history of this country. It implied complete faith in one man. Complete trust that Starr would not invade legitimate privacy interests, would not make false or unsupported allegations, would not conceal exculpatory information. Was that faith justified? Time will tell.
I leave to the reader the ultimate verdict. I am just presenting the facts and asking the questions. Once information of this sort gets out you can't put it back in the bottle. Even if, after having read the report, you conclude that everything contained in the report is true and relevant and necessary, what basis was there to make that assumption without someone, not even one member of Congress, not even one staff attorney, having reviewed the contents before the largest mass distribution of information in history.
Ten days after the release of the Starr Report, the video of the President's deposition was released. Once again there was mass hysteria. Once again, arguably unmediated information was again released to the public. There is something almost pornographic about invading a witnesses privacy that way. Watching the President sweat and squirm. Kind of like watching a snuff film, I imagine.
But this time something different occurred. This time at least some members of Congress purportedly viewed the tape and read the transcripts. Word got out that an angry President lost control, stormed out of the room. Blew it. Eagerly the public awaited this latest tidbit. And something strange happened. The water overfilled the glass. In the end there was less rather than more.
A Republican committee overrode many of its Democratic members, gleefully awaiting public reaction. But somehow the tape had been mismediated to the Committee itself. Congress totally misread how the public would respond to the tape.
I know no one who actually watched all four hours. Those who were home caught glimpses and bits. The rest of us saw the mediated presentation on the evening news and NightLine. But in spite of the conservative spin of the media, the public saw something else. They saw an embarrassed and contrite human being, an intelligent man trying to dig his way out of a deep hole, a man who had concern for his country, his family, even his principal accuser. A man being pushed to the limit by impertinent and unnecessarily explicit questions. What they saw wasn't pretty. But what they saw wasn't what had been promised. And most Americans just wanted to sleep it off.
If only the President had slept it off after taking his deposition. He restrained himself in the deposition and blew it in his public speech that night. I know how I feel when I complete a day in a deposition, even when all I have to do is sit there and object every once in a while. When I get done all I want is a drink and a nap. I certainly don't want to go on national television and make the most important speech of my life. But I digress.
The decision to disclose this material was made before a single member of Congress had reviewed the report.
So now the Judiciary Committee is making the final decision as to how and what to release out of the remaining 60,000 pages. I wish it didn't have to be done. However, at this stage it is no longer avoidable. But I am also worried, with the Congressional abdication of responsibility in the original disclosure and the total mischaracterization of the nature of the deposition tape, how can we trust Congress to edit the remaining material?
We are told unnecessary salacious material is being redacted. Considering what has already been disclosed, what difference does it make? Can the material not yet disclosed be worse than what we have already seen? More invasive? More disgusting? I doubt it. But who now is to judge now that Pandora's box has been opened.
We hope material is being withheld that would unnecessarily invade the privacy of others who play bit parts in this soap opera of 1998. (I would have said, "of the '90s" but we have lived through OJ and Diana.) Who is to be trusted? Who is to mediate? To the extent materials must be redacted, the public must be presented with a Vaughn Index, an index of withheld materials, so that, if circumstances warrant, a demand can be made for further disclosure. Congress has insisted on making the whole country the jury. Having abdicated its primary duty, it must not now obstruct justice by tampering with the evidence the public needs in order to make an informed decision.
So, sadly, I must conclude that the remaining materials must also be made available. They just don't have to rub our noses in it. I just wish it could be in Las Vegas instead of Atlantic City. It should be available for research and verification but the days of restricted access are behind us.
Have you ever been in a movie theater at the end of the evening when they turn on the maintenance lights to clean the place?
I guess this is what it must have felt like when Adam and Eve shared that first fruit and someone blew out the candles and turned on the bare light.
Copyright 1998 Leonard Grossman
For another take on these issues see the Op Ed piece by Uzi Benziman in Ha'aretz, one of Israel's best newspapers.
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Copyright 1998 Leonard Grossman
Send your comments or questions to Len at Lgrossman dot com
My essays regularly appear in slightly different form in WindoWatch Magazine which contains a wealth of fascinating information.
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Created with DiDa!10/3/98 4:28:31 PM