by Joe Shea
American Reporter Editor-in-Chief
November 11, 2002
LOS ANGELES, Nov. 11, 2002 -- Thank you very much for that introduction, Dan. I have to tell you that your invitation came as a bolt out of the blue for me.
I have never had strong philosophical differences with the ACLU, but during the course of The American Reporter's fight against the Communications Decency Act, or CDA, in 1995 and '96, we did become rivals over which of us would get to the Supreme Court first. And back then I often felt we were treated unfairly by a huge organization that was trampling on our tiny newspaper through its immense influence with the press as a result of its ravenous desire for publicity.
In retrospect those feelings seem a little exaggerated. I wonder today if the ACLU is big enough or rich enough or powerful enough to combat the steady and now the precipitous erosion of our basic rights, and whether anyone in the press at all is listening as you fight for all of us.
Frankly, the CDA was a win-win battle for the ACLU, and there have been very few of those in your past. You gained tens of thousands of new members who I suspect promptly ripped up their membership cards the next time you took a controversial position. But your central role in the history of the Internet is undiminished, undisputed and today, I suspect, largely unknown.
As for The American Reporter, whose companion case was on a parallel track that went through New York shortly after yours went through Philadelphia federal court, the excitement of the case galvanized our readership and subscriptions. But today our readership is small and our subscriptions few, much as it was when we started. Our case, which was affirmed by the Supreme Court in the light of the ACLU v Reno opinion the day before, is mostly of interest to legal scholars and law clerks for its first definition of the word "hyperlink."
But I would like to use this occasion as an opportunity to recall what exactly we risked for the First Amendment and what we hoped to accomplish that perhaps was not the focus of the ACLU case.
In the late Spring of 1995, as the bill then known as the Oxon Amendment after Sen. James Oxon of Nebraska, its sponsor, made its way through committee, I realized that those fools in Congress might actually pass a law that would forbid the use of "indecent" words on the Internet. As each day passed and the bill moved closer to a critical vote, I noted with some alarm that few people on the Internet or in journalism seemed to grasp the import.
As a new writer for the Village Voice in 1968, I remember my uncle, Judge William Shea of the New York State Supreme Court, recounting how he could not read my first story about riots in Harlem the night the Rev. Martin Luther King Jr. died to his two boys because it contained words he didn't want them to hear. Twenty-five years later, under the law Oxon proposed, those and other words that I could publish in print in 1968 could get me fined $200,000 and even sent to federal prison for two years after the Oxon Amendment was passed as the Communications Decency Act by huge majorities in both houses and signed by the president on February 9, 1996.
I come to my love of civil liberties, I suspect, from a much different origin than most of you. Our family became Republican after my great-great grandfather, a 15-year-old rebel scout at Gettysburg, was shot five times in the face with a horse pistol by a Union cavalry officer and left for dead on the battlefield.
It was the Union of Abraham Lincoln that rescued him, nursed him in a field hospital, and sent him to his relatives in New York, and it was the party of Lincoln that he embraced for the rest of his life. You might also say he died for the party, because he was thrown down a flight of stairs by some Tammany Democrats in an election riot in the late 1890's.
But by 1892, his son became the paymaster of the U.S. Customs House in New York under Grover Cleveland, and in 1909 under the reform banner of Mayor Seth Low, he ran for Sheriff of New York County and defeated the head of Tammany Hall, Christy Sullivan, to become the highest-paid public official in the United States other than the president. John S. Shea was the only Republican elected in Manhattan since Reconstruction, and there were none elected for the next 45 years until my uncle was elected to the bench in 1954.
In that tradition, as a young high school politician, I was leading the competition for Outstanding TeenAge Republican in New York State until I used the phrase "damn" in my speech - and they actually gasped.
So although I have usually voted for the Democrats since 1976, and in 1986 I started a national draft committee to get U.S. Sen. John F. Kerry into the 1988 presidential race - the ironies abound - I didn't come from a radical tradition, as I suspect some of you may. I have grown more liberal over the years as I traveled to four wars and 19 countries and had the opportunity to see our country through the eyes of other people, to see the impacts of the American economy abroad, to watch the mistakes we have made unfold in wars and revolutions, and to learn that the fundamental thing lacking in most Republican hearts is a respect for the struggle of ordinary people in a world dominated by behemoth corporations and rich nations who are unable to distinguish their own interests from those of other people. But I'm getting a step ahead of myself. The point that is important to make is that I came from a tradition that nonetheless honored our rights, and if I was a conservative, I believed that a conservative was one who conserved our rights.
Back in 1995, The American Reporter was just seven weeks old when we took on the world. We had arrived with a splash as the first daily newspaper with original content to actually start on the Internet. We weren't taking what we called "shovelware" from the AP and Reuters or recycling stuff from a print edition, as others did. We were about 30 journalists who met on the Internet mailing list of the Society of Professional Journalists.
I got the idea of creating a newspaper with stories sent by email from around the world by associated journalists who would own the publication and participate in its revenues by earning sweat equity through their work. Our little publication turned the world of journalism upside down. Nine days after we began, Bill Johnson, a veteran AP bureau chief who had just retired from the AP after 42 years and was our best correspondent, was in earshot of the blast at the Oklahoma City Federal Building. His scoops, and those of other American Reporter Correspondentss in Indonesia, China, Ireland, Venezuela, Vietnam, India and Israel put us on the map - hated and feared, perhaps, but on the map.
The reality was, though, that the "nerve center," as one book about us called it, was a small apartment in Hollywood running a 286 with a 40-meg hard drive and a 1,400-baud modem. There was no money, no heat for five years, and the rent usually went unpaid for months.
Yet, on our 49th day of publication, I declared that we would challenge the President and Congress by publishing an article describing all of them in the language forbidden by the proposed law, and I said we would fight for our right to do that all the way to the U.S. Supreme Court.
A brave judge, Steve Russell of Texas - he teaches constitutional law to undergraduates down at the University of Texas at San Antonio - and a brilliant lawyer, Randall Boe of Washington, D.C., who is now the general counsel of AOL - volunteered to help. Judge Russell crafted the article while Randy crafted our defense.
It was another six months before the ACLU announced it would also challenge the law, allied with a huge group of plaintiffs including Microsoft, Netscape and AOL. Your attorney asked us to join their case, but we preferred to go our way alone, as we often do, to focus on the free press issue. The ACLU case became the world's case, and ours - which challenged the same law on the same gounds with the same passion for our civil rights - was rarely mentioned again. After a two-week trial we got a 79-page opinion in 1995 from three appellate judges, sitting en banc in Manhattan Federal Court, declaring the CDA unconstitutional.
The meat of our case was that the rights journalists enjoy in print as Americans ought be enjoyed by them as journalists and Americans on the Internet. The ACLU case looked at the issue quite a bit more broadly, encompassing not only indecent language but indecent photos, such as most commercial pornography. Right or wrong, we did not want to fight for Internet pornography but for a free press. In the end, the ACLU won both. You have only yourselves to blame for all the X-rated spam ever since!
In the Supreme Court, the Chief Justice and two other Justices asked your attorney about our case, and it was cited four times in the dissent. The Court affirmed our case in a letter a day after they handed down the landmark decision in ACLU v Reno. Not a single newspaper, magazine, radio or television station in the world made note, but I did prevail on a little local news agency, the City News Service, to write a short piece on our victory. That is the only news of record there is on it.
Maybe you're curious why the press ignored a case that had its own interests at heart. The reason was that we violated a cardinal rule of journalism, and I'll tell you asbout that in a minute. We were excoriated for it by the Atlanta Constitution and condemned for it by many others, and that meant we had little hope of selling our wire service copy to anyone. Although we have continued to publish daily for seven years, our activism spelled our financial doom. We survive now by trading stories for Web hosting. Investigative work that won a 1999 Neiman Fellowship at Harvard and a First Place award in 2000 from the L.A. Press Club is free for anyone to read at www.american-reporter.com.
And what did we do that angered the rest of the press?
We committed an act of civil disobedience. I sat in my home and hit the Control key and the X key in the old Pine mail utility and told the world exactly what we thought of a Congress and president who would pass a law that would end the right of Americans to speak freely and vividly on the Internet. And today I submit to you that the people who told us that we shouldn't do that, that we were wrong to do so, are the very same people who several decades ago would have told Rosa Parks that if you want to make a difference, if you want to change the course of history and catalyze the struggle for civil rights, the way to do it is not to go sit at the front of the bus. The rest of the press simply lacked the courage and the constitutional outrage of a former Republican who in the end did believe a conservative is one who conserves our rights.
Today, I am over my anger at the ACLU for shoving us into the ditch. Instead, I'm glad that the ACLU is strong because all of our rights are constantly falling either into disuse in our media-directed society or are under attack by our own government as in the dangerous and precedent-setting U.S. PATRIOT Act.
The ACLU is often alone when it fights for our rights to assemble, to speak freely, to get a public trial by a jury of our peers, to see documents that are properly public, or to sue the states or the federal government. It defends me as a journalist and you as a critic of journalism. Its ability to quickly research, brief and try an issue that touches one or some or all Americans makes it one of the very greatest resources of freedom and of a free people.
When you honor me tonight, you honor a former critic, and thus, because you do hear and respect a voice of dissent, you honor yourselves and the rich and patriotic tradition from whose original impulses this very nation is sprung. I congratulate you.
Joe Shea is Editor-in-Chief of The American Reporter. This speech was delivered on Sunday, Nov. 10, 2002, to the South Bay Chapter of the American Civil Liberties Union in Rolling Hills Estates, Calif., where Shea was awarded the Upton Sinclair Freedom of Expression Award for his efforts on behalf of civil liberties.