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Testimony wraps in N.Y. CDA

A judge surfs the Net, an artist defends his nude paintings, and online expression is the topic--a common scene for court hearings on Net decency laws.

A judge surfed the Net, an artist defended his nude paintings, and online "free speech" was the topic--a common scene for court hearings on Net decency laws.

The final witnesses were called yesterday in American Library Association vs. New York Governor George Pataki, a case challenging the state's law prohibiting "indecency" on the Net. Final arguments are scheduled for April 22, and a decision is expected in late May or June.

The ALA and American Civil Liberties Union sued Pataki in January after the law was enacted in November. The law penalizes those who make available to minors material that, "in whole or in part, depicts actual or simulated nudity, sexual conduct, or sadomasochistic abuse, and which is harmful to minors." If found guilty of the felony, violators could get up to four years in prison.

During the three days of testimony, the government only called one witness: Michael McCartney, an investigator for New York's attorney general's office. The ALA coalition's lawyers, Christopher Hansen and Ann Beeson of the ACLU, called five witnesses, including Diane Kovacs, a computer consultant, who gave the judge a tour of the Net on Friday.

Meanwhile, the Supreme Court is scrutinizing the mother of all such laws, the Communications Decency Act. Although the Supreme Court's decision is expected in June, the ALA is fighting the New York law because it says the state has refused to halt prosecution.

The ALA argues the law is overbroad and violates free speech provisions under the First Amendment. But the government witness testified before U.S. District Court Judge Loretta A. Preska that the law only applied to photographs.

McCartney testified that during his work for the attorney general he has spent about 600 hours online to uncover Internet child pornography. He described his interpretation of the statute when questioned by New York's counsel James Hershler.

"My understanding of the reading of the act is that the communication has to be a picture that is transmitted. That picture has to fall within the three-prong test of being pornography and harmful to minors, and in fact, it has to be transmitted to a minor, a person legally defined as a minor," McCartney said.

However, the ACLU and ALA say the law is not written that way. Regardless of McCartney's testimony, the ACLU attorneys argue, the law could still be interpreted to prosecute those who transmit over the Net information about gays and lesbians, safe sex, rape, or art with nude models, for example.

Rudolf Kinsky, an artist who moved the United States from Poland to gain greater rights to free expression, testified yesterday. Kinsky said he pulled replicas of his nude paintings off the Net when the law went into effect because he was fearful of being prosecuted.

Also testifying was Matthew Ehrlich of the online community Echo. He hosts a conference on Lambda, a nationwide gay and lesbian group. He testified that there were frank discussions about sexuality on his forum and that the conversations could get him and Echo prosecuted under the New York law.

Maurice Friedman, executive director of the Westchester Library System, and Barry Steinhardt, associate director of the ACLU, also told the court how the law would chill speech on the Web.

As for Judge Preska's tour of the Net, she told her guide, "You should not assume [I have] any level of knowledge." But Steinhardt says the ACLU is confident she gets it.

"Our lawyers felt that the expert testimony was clear. She should have a good understanding of the Net," he said.

Additional plaintiffs in the ALA case include the following: American Booksellers Foundation for Free Expression, Art on the Net, Association of American Publishers, Bibliobytes, Echo, Freedom to Read Foundation, Magazine Publishers of America, New York Library Association, NYC Net, Peacefire, and the Public Access Networks Corporation.