IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

 

AMERICAN CIVIL LIBERTIES UNION,                             |

A DIFFERENT LIGHT BOOKSTORES,                               |

AMERICAN BOOKSELLERS                                               |

FOUNDATION FOR FREE EXPRESSION,             |

ASSOCIATION OF AMERICAN PUBLISHERS,                 |

ARTNET, BLACKSTRIPE, CONDOMANIA,                      |

ELECTRONIC FRONTIER FOUNDATION,                        |

ELECTRONIC PRIVACY INFORMATION CENTER,        |

FREE SPEECH MEDIA, INTERNET                         |

CONTENT COALITION, OBGYN.NET,                              | Civil Action No. 98-5591

PHILADELPHIA GAY NEWS, PLANETOUT,                     |

POWELL'S BOOKSTORE, RIOTGRRL, SALON                |

INTERNET, INC. AND WEST STOCK,                               |

            Plaintiffs,                                                                       |

                                                                                                |

v.                                                                                             |

                                                                                                |

JANET RENO, in her official capacity as                                  |

Attorney General of the United States,                          |

            Defendant.                                                                    |

 

 

AFFIDAVIT OF JOHN WILLIAM BOUSHKA

 

 

I, JOHN WILLIAM BOUSHKA, hereby declare and affirm the following:

 

1)         I am a member of the Electronic Frontier Foundation.

2)         I am the individual owner of a publishing company called High Productivity Publishing. High Productivity Publishing is a sole proprietorship that was registered in Fairfax County, Virginia, on January 2, 1997. Registration was transferred to Minneapolis, Minnesota, in April of 1998.

3)         I formed High Productivity Publishing to help establish myself as a credible political and social commentator in the area of individual rights and responsibilities. I am hoping to eventually take advantage of writing opportunities with major commercial publishers or even motion picture ventures.

4)         I work as a salaried computer programmer-analyst for a financial institution for a living and run High Productivity Publishing in my spare time. I have spoken publicly on the topic of "don't ask, don't tell" on numerous occasions. I discussed the book and constitutional amendment proposal before an audience of students and libertarian party members at Hamline University. That talk was videotaped and shown several times on Minneapolis-St.Paul public (cable) access.

5)         My first project was to write and publish a non-fiction book entitled, Do Ask, Do Tell: A Gay Conservative Lashes Back (hereinafter "Do Ask, Do Tell", ISBN 0-9656744-0-1), which was published in hard-copy book form in July of 1997.

6)         In Do Ask, Do Tell, I propose an argument and strategy for the overhaul of the Bill of Rights. The book maintains that the American people need to perform, in structured public debates, a systematic study of ways that they should safeguard their individual rights against government intrusion. The book is especially concerned about laws concerning consensual sex, drugs, gambling, civil asset forfeitures, past conscription, government-sponsored racial preferences, discriminatory marriage laws, sodomy laws, gun control, and the tension in the workplace between people with different family responsibilities. The overall political philosophy is a moderate form of libertarianism. I believe that the law should emphasize personal responsibility more, and group rights or status less.

7)         I present my case inductively, with early portions of the book devoted to my own personal experience as a gay man. The fulcrum of the entire argument is the role of the military in society as a whole. My own unusual participation in the debate over gays in the military in 1993 serves as the backdrop of the book. The book takes the position that the damage done to gays by the military ban goes way beyond the military itself.

8)         On August 1, 1998, Professor Mark Wojcik from the John Marshall Law School in Chicago presented a discussion of the ban and of military sodomy laws before a sub-panel of the American Bar Association, a panel comprising mostly senior military officers. My book was given as a significant reference on the legislative and political history of the military gay ban and particularly the Clinton Administration's "don't ask, don't tell" policy.

9)         Do Ask, Do Tell is available through many sources, including Web booksellers amazon.com and barnesandnoble.com. It can also be ordered at Barnes and Noble retail stores throughout the country. The downtown Minneapolis store carries it in stock.

10)       I am currently writing another non-fiction supplemental book entitled, Our Fundamental Rights and How We Can Reclaim Them (ISBN 909656744-2-8). In the future, I plan on writing a major fiction project.

11)       I have created and maintain a site on the World Wide Web for High Productivity Publishing at http://www.hppub.com. The Web site was set up originally to help sell Do Ask, Do Tell and also to provide readers with supplementary material. Very quickly I added many other topical materials to the Web site, mostly short essays or lists about libertarian philosophy, family values, discrimination law, affirmative action, health care, AIDS, marriage law, and more materials on the military's "don't ask, don't tell" policy. I added a special section on psychological growth, which fits into my argument in an unusual way. Recently, I put up a section of book and movie reviews (mostly of adult-oriented books or movies). I even added a little humor, such as a satirical paraphrase of the "don't ask, don't tell" policy entitled, "Heterosexuality Is Incompatible with Military Service," which had been published in 1996 by The Washington Blade newspaper. I also post written contributions from readers of the site.

12)       I have added links to external organizations with related materials. These include sites owned by Gays and Lesbians for Individual Liberty (I edit The Quill, their newsletter), Servicemembers' Legal Defense Network, the Ninth Street Center, Metropolitan Community Church, and various libertarian groups.

13)       All of the information on my site is available for free to both adults and children. I also sell hard-copies of my book there. The purpose of my site is commercial, to advertise my writings and establish my expertise in this area.

14)       I do not take credit cards at my site, because I cannot afford the setup and access fees the credit verification companies would charge me. When I get an order by e-mail, I simply ask the purchaser to send a check upon receipt of the book under the honor system, and this has worked in practice for me.

15)       For the month of October 1998, my site had almost 700 successful page requests from more than 320 distinct hosts.

16)       On July 31, 1998 (about a year after hard-copy book publication), I posted online at my site the entire text of the Do Ask, Do Tell book (a total of about 187,000 words of text) in six large and several smaller files. All of the files of my book are readable for free with standard Web browsers, such as Netscape or Internet Explorer.

17)       The substance and subject matter of the Do Ask, Do Tell book, as well as some of the essays on my Web site, are definitely adult in content. They require a degree of maturity from the reader. The preface to Do Ask, Do Tell recommends the book for adults and high school teenagers about 15 years of age or older with parental or teacher guidance.

18)       The writing is dense and not easily understood by younger minors. But some concepts, on their face, might be disturbing to immature persons. For example, the feelings that young men have about their bodies and sexual performance is discussed frankly, in setting up a complete understanding of the "unit cohesion" problem later articulated by Sam Nunn and Charles Moskos in the 1993 debate over gays in the military. The idea that some men (homosexual or not) enjoy sexual "submission" is presented and later shown to have political importance.

19)       Furthermore, in the first three chapters of the Do Ask, Do Tell book, there is some graphic language. Most of this occurs when young men in the dorms or (later) in military barracks are depicted as displaying their (hostile) attitudes towards women and homosexuals. For example, on page 9, the last paragraph reads, "Actually, the boys had brought it up anyway. Just a week ago, there had been another sign on my dorm door, 'Xxxx Xxxx from Golden Genius, 25 cents.' I had quietly taken it down as if it were a Christmas ornament." There is some explicit language in reporting the gay talk groups at the Ninth Street Center (psychological polarities as they relate to sexual identity and to gender identity). And there is explicit language in describing some personal experiences, such as a first visit to a gay bath house (to set up discussion of AIDS later in the book). For example, on page 95, it says: "January 1975, almost two years after my 'second coming,' I finally gained my 'first experience,' at the Club Baths. It was nearly impossible to nightwalk the orgy room, bathed in astral violets, without having at least a passive incident. So what if I were a fallen male!"  [See links at bottom of page.]

20)       There is some explicit discussion of sexual acts in relation to the medical transmissibility of HIV and other infectious agents. Later, there is some discussion of such matters as drugs, abortion, and prostitution.

21)       When I read the exact words of the Child Online Protection Act (the Act), I cannot reassure myself of exactly what is prohibited. The definition of "harmful to minors" seems to me to be self-contradictory or at best ambiguous.

22)       I am concerned that some prosecutor somewhere may want to interpret the Act as applying to all adult subject matter, and therefore to the material on my site. Because of my concerns and my fear of imprisonment or fines, on November 4, 1998, I self-censored the High Productivity Publishing Web site.

23)       To self-censor, I replaced the original text of the first three chapters of the online version of the Do Ask, Do Tell book with edited versions of these chapters. In the edited versions, I removed the most "offensive" language and deleted or otherwise toned down the most explicit passages. The affected passages are marked with plus signs ("+"), which are linked to an explanation that to see the original material a reader must either order the printed book (or buy it from a retailer) or contact me for age verification, after which I would provide access. For example, the paragraph from page 9 above has been changed to: "Actually, the boys had brought it up anyway. Just a week ago, there had been another sign on my dorm door ++offering homosexual activity for money+. I had quietly taken it down as if it were a Christmas ornament." The paragraph from page 95 above has been changed to: "January 1975, almost two years after my "second coming," I finally ++experienced sex for the first time at the Club Baths. (omitted sentence) +

24)       I saved the original text of the first three chapters in a hidden, password-protected directory (without permissions for normal search engines). These changes took about two hours of my time. When I do provide access, I will do that by giving out the password over the telephone.

25)       So far, I have changed only the first three chapters from the book. There are a few essays, particularly in the psychological link (dealing with "polarities") that I will need to look at. There are some older essays from 1996 (an earlier form of the book) that I will want to look at, but these probably do not contain explicit language, just some mildly adult subject matter.

26)       I have not edited anyone else' s work (under readers.htm) for adult content. I do not recall coming across anything very explicit, except maybe some technical language about same-sex marriage, etc. But I would be uncomfortable editing this material anyway. Am I to become a censor under the Act?

27)       So far, no one has called for access. I should also mention that most people who call will get my answering machine, since I work full-time outside of my home on weekdays. In addition, my access telephone number is local only to the Minneapolis-Saint Paul area and would be a toll call users everywhere else. Because of these limitations, I do not expect many people to actually take advantage of my age verification procedure, meaning that even adults will be precluded from accessing my materials.

28)       My site is very small, and I know it intimately since I am both the content author and site maintainer. It would have been much more difficult, if not impossible, for me to self-censor if my site had been more extensive. Setting up alternative, password-protected directories is not a feasible solution for a site with hundreds of materials that would require shielding. It took me two hours to make the changes required of me under the Act to my little site, and it will take me additional time to verify the age of individuals who do want to access the adult materials on my site.

29)       My age verification plans are hardly failsafe. When someone wants access to the original text, I plan on doing a telephone interview, asking the person questions to make it credible that he or she is 17 or older. For example, a student in college or in graduate school or working in a reasonably professional job is not likely to be under 17. This in itself is not costly (other than my time). But it is risky; in that a person could pose as an imposter to determine if I would actually sell to a minor under 17. Adding this barrier to access is also quite likely to deter adults from viewing the original text.

30)       Furthermore, I have only moderate confidence that my self-censorship complies with the law. The text of Do Ask, Do Tell is very long, and there are many passages with borderline "adult language" which I did not self-censor. For example, on page 119 of the (1997 commercially printed version) text, it says: "Furthermore, male homosexual sex, they claimed, was qualitatively even more dangerous to "society" than (multiple partner) vaginal sex because, first, the rectum (and perhaps mouth) were more easily damaged in intercourse (because of lack of lubrication and thinner rectal wall, making minor tears more likely) and, even more important, because among male homosexuals, the same individual who "receives" can turn around and "give," and propagate a chain letter or pyramid of easy transmission. (At least with vaginal sex, the difficulty of transmission from female to male, when there are not other diseases around to facilitate transmission, putatively makes sustaining a long chain of infection less likely; this analogy does not hold with true "venereal," as opposed to sexually transmitted, diseases like herpes and venereal warts.)

31)       In addition, in the appendix (the file append.htm) I reproduce the entire text of a draconian bill (HR 2138) proposed in the Texas legislature in 1983 to "strengthen" the state sodomy law during the historical height of public AIDS hysteria. The text is very graphic, but presumably, because it was a proposed state statute, it has redeeming political value even for minors; but I am not sure how I can determine that.

32)       Even though the writing is certainly not as effective when toned down, I plan to leave the site in this censored format at least until there is a permanent injunction against enforcement of the Act.

33)       Forced age verification will discourage traffic at a site like mine, where I am trying, over a long period of time, to establish myself. I have heard from news reports and know from own squeamishness that even adults will be uncomfortable giving credit card numbers or verification codes to do brief searches of files for research, which I think they might want to do with my Do Ask, Do Tell book and other materials. Furthermore, one of the reasons the World Wide Web is so popular for materials like mine is that people can access them anonymously. My users will not want me, or anyone else, to know they have accessed my or any other adult-subject site.

34)       I have, however, contacted both validate.com and adultpass.com about setting up an age verification system on portions of my site. Validate.com and adultpass.com are Internet-based companies that sell adult verification numbers to consumers for up to $19.95 a year or $29.95 for 2 years. These numbers are supposed to enable adults to log in to "adult" sites that already require verification. I have personally obtained IDs from both companies, but I have not tried to use them to dial into porn sites yet; I only applied to see how the process works. So far, I have heard no response from either company. I do not know how much they would charge. I think they do not believe that non-pornographic, text-only sites need register with them.

35)       My motive in signing up was to find out how the process of adult validation works today. One site (adultpass) required a credit card for membership. The second required that I send in a check and photocopy my Minnesota Driver's License. Both companies advertised a long list of "adult sites" that appeared to be explicitly pornographic in nature (both gay and straight). It did not appear that any of the advertised sites contained political or social discussions. My impression of the adult validation industry is that it is not presently prepared for a large number of small sites with marginally adult or HTM content from operators who want to sign up merely because of fear of prosecution and not really to sell pornographic materials. There may be an audience of consumers who willingly use credit cards and adult verification numbers for the purpose of purchasing large amounts of entertainment pornography. (I understand that there is a pornographic video which advertises itself as "Do Ask, Do Tell" and this should not be confused with my material at all.)

36)       But even if they were able to provide service for my site, I have to admit a bit of discomfort with using them. Neither of these companies have the reputation of, say, Visa or Mastercard. I do not know their privacy and security policies. (For example, will my users start receiving junk e-mail from hard-core pornography sites if they sign up for these services?) And I certainly do not feel confident that they will be a safe firewall between me and a federal prison sentence.

37)       The actual commercial volume on my site is too small at this time to make acceptance of credit cards economically sensible. A friend of mine who set up credit card charge ability on his Web site found that the minimum a bank or credit card verification company charges is $50 a month plus transaction fees. If I passed charges like these on to my users, it would kill access to my site, since most users only access my materials for brief periods for social or political research and would find the costs prohibitive. And I cannot afford to take on these charges myself. I do not yet make a profit from the site, although I hope to some day after retirement with enough effort. I am afraid that with the requirements of the Act, I will be forced to either further self-censor or shut the site down completely.

38)       I believe that the High Productivity Production site, along with other small sites containing political speech, is very important. With desktop publishing and the World Wide Web, a single person such as myself can compete with well-established and well-funded organizations and make an impact upon public debate of important and timely issues. My site is valuable because there is no outside supervision and I owe no loyalty to large organizations to support other groups' issues so they will support mine. In my case, there is no point in operating a site that does not have some moderately adult content that is conveniently accessed and searched by researchers.

 

 

I declare and affirm under penalty of perjury that the foregoing is true and correct.

 

 

Dated:                                                                                                                         

                                                                        JOHN WILLIAM BOUSHKA  

 

Note: In point 19, please refer to these links Chapter 1   Chapter 2