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From: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Newsgroups: comp.org.eff.talk
Subject: Re: Musing on Constitutionality
Message-ID: <36649@ut-emx.utexas.edu>
Date: 29 Aug 90 13:19:01 GMT
References: <36823@ut-emx.UUCP> <20062@well.sf.ca.us>
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Reply-To: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Organization: The University of Texas at Austin, Austin, Texas
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In article <20062@well.sf.ca.us> nagle@well.sf.ca.us (John Nagle) writes:

>       Many people, including John Barlow, have enunciated the position
>that "Phrack", as an electronic publication, was considered inferior to
>a paper publication from a legal standpoint.  As one of the people 
>involved in the trial (as a technical expert for the defense) I have to 
>point out that this is not correct.  The indictment refers to "Phrack" 
>as a publication, and Craig as its publisher.  The fact that "Phrack"
>was distributed electronically was barely mentioned at trial.  The
>case turned on the content of "Phrack", not its medium.  Craig could
>have done everything he did by U.S. Mail and still been charged, although
>probably under the mail fraud sections of the U.S. Code rather than the
>wire fraud sections.

John, I have to disagree with you here on the issue, although I don't
disagree with your statement of the facts. It is true that Neidorf could
have been indicted just as easily if Phrack had been produced on a
printing press. And, of course, it is true that Phrack was referred
to as a "publication" in the indictment and at trial (it is difficult
to see how the government could have referred to it any other way
without being overly vague).

The point I believe Barlow was making, and the point I want to make
here, is that Phrack, though admittedly a publication, was considered
"inferior" in terms of its claims of First Amendment protection, and
that this attitude was reflected both in the characterization of Neidorf's
activity as part of a "scheme to defraud" and in the decision to
indict. I think Terry Gross is correct when he states that if The New
York Times had taken part in the same activity, its editor would not
have been indicted.



--Mike



Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith