Testimony of Patricia Nell Warren -- publisher, Wildcat Press

March 21, 1996

    25                    MS. BEESON:  Good afternoon, your Honors.  I am Ann

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     1           Beeson and I'm another of the attorneys for the ACLU

     2           plaintiffs in this case.  And we now call as our next witness

     3           Patricia Nell Warren.

     4                    We have been informed by the Government that they do

     5           not wish to cross-examine Ms. Warren, and so we therefore

     6           offer into evidence the affidavit which she signed on the

     7           15th of March and which was filed in this case on the 19th.

     8                    JUDGE SLOVITER:  Is there any objection by the

     9           Government?

    10                    MS. RUSSOTTO:  No, your Honor, this is basically the

    11           same situation as with Mr. Kuromiya.  We're prepared to

    12           accept the declaration being entered into evidence, but

    13           subject to our ability to submit deposition testimony.

    14                    JUDGE SLOVITER:  And is there any objection to that

    15           by the plaintiffs?

    16                    MR. COPPOLINO:  No objection.

    17                    JUDGE SLOVITER:  Okay, fine.

    18                    MS. BEESON:  We now make her available for the Court

    19           to question, if they wish.

    20                    COURTROOM DEPUTY:  Good afternoon, ma'am.  Would you

    21           please state and spell your name for the record?

    22                    THE WITNESS:  Patricia, P-A-T-R-I-C-I-A, Nell, N-E-

    23           L-L, Warren, W-A-R-R-E-N.

    24                    PATRICIA NELL WARREN, Affirmed.

    25                                 DIRECT EXAMINATION

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     1                    JUDGE DALZELL:  Ms. Warren, one thing I'm not clear

     2           about with respect to Wildcat Press, you are -- you have an

     3           interest in Wildcat Press, as I understand in your

     4           declaration?

     5                    THE WITNESS:   A little bit of history, I am an

     6           author that has published a number of books over the years

     7           and I recently made a decision to go independent and to

     8           publish my own books instead of relying on trade publishers. 

     9           So Wildcat Press is my own company co-owned with a business

    10           partner.  I publish my own books, new books, old books,

    11           getting them back in print.  We will also publish books by

    12           other people.  It is what is referred to in the trade as a

    13           small press.

    14                    JUDGE DALZELL:  Okay.  Now, Wildcat Press as you say

    15           in your declaration has a Web site, right?

    16                    THE WITNESS:  That is correct.

    17                    JUDGE DALZELL:  Now, your books, let's just talk

    18           about your books.  What do you have on that site, excerpts? 

    19           I wasn't clear.  Or chapters or summaries or what about your

    20           books?

    21                    THE WITNESS:  We do two things with the Web site. 

    22           One, it's a place where people can come, they can learn more

    23           about the company, my books, what they're about.  They can

    24           also buy books directly off of the Web site through a credit

    25           card ordering apparatus.  So there are two excerpts, the

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     1           first chapters from two of my best-known books that are

     2           available for people to access and read and possibly interest

     3           them in buying the books.

     4                    JUDGE DALZELL:  Okay, and how long are those

     5           excerpts?

     6                    THE WITNESS:  They are -- consist of the entire

     7           first chapters of the books, so they are like one long

     8           subpage.

     9                    JUDGE DALZELL:  So I guess as the copyright owner at

    10           least of those books you could make a decision, could you

    11           not, to put your whole book on line?

    12                    THE WITNESS:  I could.

    13                    JUDGE DALZELL:  Would you ever do that?

    14                    THE WITNESS:  If I thought it was a good idea, I

    15           definitely could do that.

    16                    JUDGE DALZELL:  All right.  But at this point you're

    17           using the on line service to sell books, correct?

    18                    THE WITNESS:  Correct.

    19                    JUDGE DALZELL:  You mention in your declaration that

    20           the credit card company, as I understand it, charges a dollar

    21           service fee --

    22                    THE WITNESS:  That is correct.

    23                    JUDGE DALZELL:  -- for processing.  Is that for the

    24           verification, as a fee for that, or what is that dollar?

    25                    THE WITNESS:  That is the fee for the -- that we are

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     1           charged for each user who wants to log into that particular

     2           feature and use their credit card.  It's a secure ordering

     3           device.  I believe there are several on the market.  This one

     4           is called First Virtual, which they can use a MasterCard or

     5           Visa credit card.  And we pay a fee for them to use that each

     6           time it occurs.

     7                    JUDGE DALZELL:  Were you here this morning?

     8                    THE WITNESS:  Yes.

     9                    JUDGE DALZELL:  You may have heard a lot of colloquy

    10           about verifying credit cards.  At your Web site, can you

    11           verify on line or do you have to go off line to verify?

    12                    THE WITNESS:  I'm not a technical person, and I'm

    13           not actually the technical person that runs this whole thing,

    14           so I can't tell you exactly how it works, but it is handled

    15           by the server that we operate off of, which is Southern

    16           California Gay Wired, and they're the ones that process it. 

    17           That's mostly what I can tell you.

    18                    JUDGE DALZELL:  Okay.  So this server, Gay Wired,

    19           handles all of that for your company?

    20                    THE WITNESS:  That is correct.

    21                    JUDGE DALZELL:  Another line of questions I have for

    22           you that I'm very curious about, you say at paragraph 17 of

    23           your declaration that you've helped create an on line

    24           magazine, an E-zine as you call it called Youth Arts; is that

    25           correct?

                                                                           189

     1                    THE WITNESS:  That is correct.

     2                    JUDGE DALZELL:  And you said that you've also

     3           created print magazines, a print magazine called Campus

     4           Courier; is that correct?

     5                    THE WITNESS:   I assisted in creating that. 

     6           Actually it never came to fruition, but that was many years

     7           ago.

     8                    JUDGE DALZELL:  Well, let me ask you this.  This is

     9           what I'm most curious about.  Is it easier to start an E-zine

    10           than a print magazine?

    11                    THE WITNESS:  Yes.

    12                    JUDGE DALZELL:  Why is that?

    13                    THE WITNESS:  Because the material costs of putting

    14           out a print magazine, standard print media, you're looking at

    15           all of the costs of photography, and art and paper costs and

    16           printing costs and so forth.  It generally is much more

    17           expensive than the cost of putting up a publication on line.

    18                    JUDGE DALZELL:  And where is the E-zine posted?  How

    19           do you access it?

    20                    THE WITNESS:  Through a URL.

    21                    JUDGE DALZELL:  Okay.  Thank you.

    22                    JUDGE SLOVITER:  Judge Buckwalter.

    23                    JUDGE BUCKWALTER:  I'm still looking through --

    24                    JUDGE SLOVITER:  Okay.  Is it accurate that your

    25           material would be considered gay and lesbian literature, the

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     1           material that you authored?  I gathered that from the

     2           declaration, is that correct?

     3                    THE WITNESS:  Are you asking about my personal

     4           writing?

     5                    JUDGE SLOVITER:  Your personal books, yes.

     6                    THE WITNESS:  Not all of my books, but most of what

     7           I'm known for would be called gay literature.

     8                    JUDGE SLOVITER:  And would that include also books

     9           like Truman Capote's Other Voices, Other Rooms and some other

    10           books by Truman Capote?

    11                    THE WITNESS:  Well, let me -- I'd like to make sure

    12           I understand your question you're asking.

    13                    JUDGE SLOVITER:  Would that be considered gay and

    14           lesbian literature?

    15                    THE WITNESS:  I haven't read that particular book,

    16           but it has been mentioned in that connection, as far as I

    17           remember.

    18                    JUDGE SLOVITER:  And is it your understanding that

    19           literature in that genre might be viewed as subject to the

    20           two provisions of the statute that are at issue in this case?

    21                    THE WITNESS:  I'm concerned about people in this

    22           country who view the entire subject of writing about gay and

    23           lesbian life as patently offensive.  Their opinions and

    24           feelings go way beyond the questions of the seven dirty words

    25           of the FCC, and I am concerned that there could conceivably

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     1           be complaints made on the basis that the entire subject

     2           matter is patently offensive.

     3                    JUDGE SLOVITER:  And at the moment to your knowledge

     4           is such literature available to young people in public

     5           libraries, people under 18?

     6                    THE WITNESS:  Yes, it is.

     7                    JUDGE SLOVITER:  Thank you.

     8                    JUDGE BUCKWALTER:  And you're concerned about

     9           patently offensive, even with the extra language that's added

    10           in this statute there?  I mean it just doesn't say patently

    11           offensive, it says patently offensive, sexual or excretory

    12           activities or organs.  Is that still a concern to you?

    13                    THE WITNESS:  My concern is with how some individual

    14           or group of individuals might choose to interpret that in the

    15           course of bringing charges against me with the Justice

    16           Department.

    17                    JUDGE BUCKWALTER:  Okay.  I don't think I have any

    18           other questions.

    19                    JUDGE SLOVITER:  Have our questions elicited any

    20           questions from counsel?

    21                    MS. RUSSOTTO:  No, your Honor.

    22                    MR. HANSEN:  No, your Honor.

    23                    JUDGE DALZELL:  Thank you for coming up.

    24                    JUDGE SLOVITER:  Thank you.

    25                    THE WITNESS:  Thank you.

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     1                    (Witness excused.)

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