noticing the HIV pandemic, too many people are still refusing to talk about sex openly, or give healthcare to sexual minorities directly affected by HIV. To say nothing of people who are attacked or killed for their sexual minority status, like trans people who are murdered in the street, or lesbians who are raped in order to "fix" their sexuality. Sexual stigma kills. So when someone says something icky about sex and gender, or stereotypes a certain sex or gender identity, it's so great to challenge them -- or at least to question them. (Really? What makes you think all gay people are abuse survivors?") And some of the most powerful sex activism out there involves starting discussion groups, creating venues for discussion, hosting sexuality speakers or sex-related art, etc. C) Be "out" or open, without being invasive. This can be tricky, because I don't want to encourage people to aggressively talk about sex at totally inappropriate times -- and again, I'm against re-centering. On the other hand, the most powerful tool for destigmatizing sexuality appears to be coming out of the closet -- whether a person is queer, BDSM, or whatever. Openly acknowledging, owning, and discussing your sexual preferences can help others respect those preferences -- and can help others who share those preferences respect themselves. (Can you tell that I cried when I saw the movie Milk?) This post can be found on the Internet at: S&M: [theory] S&M Superpowers I wrote this post in 2011, but I

brings to the performance. Two musicians steeped in Delta blues will produce very different music from one musician with a love for soul and funk and another with roots in hip-hop or 1980s hardcore. This process involves communication of likes and dislikes and preferences, not a series of proposals that meet with acceptance or rejection. ... Under this model, the sexual interaction should be creative, positive, and respectful even in the most casual of circumstances. ("Towards a Performance Model of Sex" was first printed in Yes Means Yes, edited by Jessica Valenti and Jaclyn Friedman, the brilliant sex-positive anti-rape anthology that I want everyone in the entire world to read. It was also reprinted in Best Sex Writing 2010, edited by Rachel Kramer Bussel.) 9) All people deserve equal rights, including sexual minorities. As long as people are having consensual sex, they do not deserve to be stigmatized, harassed, or otherwise harmed for their sexuality. Period. No one should be fired for their sexual or gender identity. No one should have their kids taken away for their sexual or gender identity. Rape is still rape, even when it's perpetrated against a sex worker. I support decriminalizing sex work for a lot of reasons; for example, I'd love it if the law would quit harassing and jailing sex workers for having consensual sex, and I'd love it if sex workers could organize for better workplace safety. The bottom line is that people -- all people -- have rights. It's time

Person A: Hey, want to come over tonight? Person B: You know, I'd love to, but I'm so exhausted from work, I really need to get some Sleep. or Person A: Hey, want to come over tonight? Person B: No. People of all genders really don't like saying "no" to things directly. Grasping this important cultural concept is one step on the path of learning how to communicate effectively about consent. But in my book, it's really not as important to understand why people hate saying "no" directly, as it is to understand that people hate saying "no" directly. It's necessary to understand that because it means that pushing someone until they say "no" can mean pushing them further than they wanted to go. I believe that the most important role of social criticism -- including sex-positive feminism -- is not to tell people what to do. If you have sex that appears to be in line with ridiculous and oppressive stereotypes, I really do not care as long as everyone involved is consenting and having fun. I reserve the right to occasionally have consensual sex where a gentleman friend beats me up before fucking me, and I reserve the right to enjoy tt. But I want to offer sex-positive feminist analyses in order to help people understand themselves and their desires... and also understand their partners and their desires. I think that many people have sex they don't like, sex that's in line with ridiculous and oppressive stereotypes, because they haven't been exposed to anything they like better.

consent. Not a partner who says, "Okay, I guess," in a bored tone, but doesn't actively say “no.” Not a partner who is silent and non-reactive, but doesn't actively stop you when you start having sex with them. Not a partner who seems hesitant, or anxious, or confused. Enthusiastic consent means an enthusiastic partner: one who ts responding passionately, kissing you back, saying things like "Yes" or "Oh my God, don't stop"... or a partner who talks to you ahead of time about what will happen, as many BDSMers and sex workers do, and knows how to safeword or otherwise get out of the situation if you do something they don't like. It's worth noting that there are critiques within feminism of the concept of enthusiastic consent. For example, some feminist sex workers point out that when they have sex for money, their consent is not exactly "enthusiastic," but they still feel that their consent is real consent, and that their choices must be respected. The same goes for some asexual people. Asexuality is commonly defined as "not feeling sexual attraction to others,” but some asexual people have romantic relationships with other people in which they have sex entirely to satisfy their partner, and some of them have said that they don't feel included by feminist discussions of enthusiastic consent. Hey, even some of my non-asexual, non-sex worker friends have problems with the idea that they aren't "really" consenting unless they're super-enthusiastic about the sexual act at hand.

will do that as efficiently as possible, and while I certainly would rather have a pleasant interaction with that person, I don't think a lot about how they were doing before they got down on their knees, and I don't care very much how they feel after they get up and leave. It's hard to keep their needs in mind; it's easier to just assume that if they wanted anything, it was their responsibility to try to get it. [ always preferred to take sexual initiative, and that has become even more ego-congruent. (pages 397-398, Speaking Sex To Power) A trans woman friend once told me that not only did she get turned on more frequently pre-transition; also, she now has to feel more emotionally connected to her partner in order to enjoy sex. And she noted that she has to "take care of herself more" in order to feel turned on now -- not just in the moment, but in life, and in the relationship. If we accept that there is, speaking generally, a difference in sexual desires between men and women (although individuals will always be unique), then it leads to new questions. If women were socially and culturally dominant, what would so-called "liberated sexuality” look like? If people of all genders are following patterns set by stereotypical men, then what does that mean for attempts to think around those patterns? 6) Communicating consent is complicated, but consent is the only thing that makes sex okay, so we have to make every effort to respect it. All sex is completely fine with me as

+ Sex acts or sexual relationships that aren't reproductive are devalued, are seen as weird, or aren't even defined as sex (for example: stigma against gay sex, lesbian sex, many fetishes, etc) 4) Women are expected to trade sex to men in exchange for support or romance. Women who don't get a "good trade" (e.g. women who don't receive a certain level of financial support or romance "in exchange for" sex) are seen as sluts. Men who don't get a "good trade" (e.g. men who don't receive a certain amount of sex "in exchange for" a relationship) are seen as pussies. (Yes, "pussies"... don't you just love that a word for female genitalia is a commonly used insult against so-called "weak" men?) What this also means 1s that many people have trouble examining motivations outside this framework: women are always expected to be looking for more emotional or financial investment from a guy, whereas men are always expected to be looking for more (or more so-called "extreme") sex. Women who actively seek sex, or men who actively seek intimacy, are shamed and hurt and confused for it -- often even within their own heads. 5) Since stereotypical men have historically been much freer to explore their sexuality than people of other genders, the desires of stereotypical men have formed the pattern for “liberated sexuality." As women have won freedom to act, work and explore outside the home more, we've been following patterns created mostly by men, and those patterns might look extremely diffe

3) Historically, sex has usually been defined in terms of two things: (a) reproduction, and (b) the sexual pleasure of stereotypical men. Cultural sexual standards are based on these things. For example, the sexual "base system"; if you've read my work before then you'll have seen me talk about it a lot, because it's such a perfect example. It's commonly discussed among USA schoolchildren and it describes kissing as "first base," groping as "second base," oral sex as "third base" and penis-in-vagina sex as "home base." Why should this hierarchy exist? It only makes sense if we think of sex as being centered around reproduction. If we think of sex as being about pleasure and open exploration in ways that are different for everyone, then having a "home base" -- a standardized goal -- makes zero sense. Another example: penis-in-vagina sex 1s often seen as "real" sex or "actual" sex, with all other sex considered "less real." How many arguments have you had over the course of your lifetime about whether oral sex "counts" as sex? (Hint: more than the subject deserves.) For a recent example, there's the Kink.com virgin shoot, wherein a porn model publicly "lost her virginity" notwithstanding the fact that she'd already had plenty of oral and anal sex on camera for years -- she'd just never had vaginal sex. As for sex being defined by the pleasure of stereotypical men: one example is how people usually think about orgasms. In my experience and that of people I talk to -- and in th

ok OK Towards My Personal Sex-Positive Feminist 101 There's an aphorism from the early 1900s literary critic Andre Maurois: "The difficult part in an argument is not to defend one's opinion but to know it." Even though I identify as an activist and genuinely want to make a real impact on the world based on my beliefs... I often think that much of my blogging has been more an attempt to figure out what I believe, than to tell people what I believe. And sometimes, I fall into the trap of wanting to be consistent more than I want to understand what I really believe -- or more than I want to empathize with other people -- or more than I want to be correct. We all gotta watch out for that. But I'm getting too philosophical here. (Who, me?) The point is, I am hesitant to write something with a title like "Sex-Positive 101," because not only does it seem arrogant (who says Clarisse Thorn gets to define Sex-Positive 1017) -- it also implies that my thoughts on sex-positivity have come to a coherent, standardized end. Which they haven't! I'm still figuring things out, just like everyone else. However, lately I've been thinking that I really want to write about some basic ideas that inform my thoughts on sex-positive feminism. I acknowledge that I am incredibly privileged (white, upper-middle-class, heteroflexible, cisgendered etc) and coming mostly from a particular community, the BDSM community; both of these factors inform and limit the principles that underpin my sex-positivity

ought to be seen as standard. Especially because, paradoxically, this kind of instinctive connection will sometimes throw me off guard, make me unlikely to communicate when I probably ought to, because if he can read me that well -- it's so tempting to assume that "he just knows" everything. But of course he doesn't. I later had a couple rough moments with that particular guy, where I didn't tell him about boundaries that were actually pretty important, because I thought he could just tell -- and of course he couldn't always "just tell." Sometimes he could, but sometimes he couldn't.) The overall moral of the story 1s this. Even with him, even with this guy, who totally blindsided me with his ability to read me despite the fact that he barely knew me: even with him, I had to be able to talk directly about what I wanted. Our connection was established because I was able to say, "Okay, that bite was a tad gentle, here's how I really like it, and here's what not to do with your teeth on me." All my most extraordinary sexual connections have benefited from everyone involved taking ownership of their desire, and talking about it directly at least a little bit. I occasionally come across people who ask me how they can get their partners to do BDSM without talking about it directly. While I appreciate and sympathize with both their need to do BDSM, and their anxiety about talking about it -- I just can't get behind the premise of the question. The fantasy of a sexual relationship

to try. Oh well... win some, lose some. ok OK OK 3) Transparent as Glass. Very rarely, I'll end up with a BDSM partner where our brief in-the-moment communications -- you know, like groans, or physical shifts, or facial expressions, or even jokes -- function very well. We can get into intense, intimate S&M in a way that seems almost instinctive (although it helps future encounters if we talk it over and process what we did afterwards). This is really exciting when it happens, but I recognize it as unusual. A gift. The person I'm about to write about is totally going to get a swelled head because I write about him so much, but he's such a good example, I have to. The first time I went home with him, I knew he wasn't in the public BDSM community. We'd had one really vague conversation about BDSM previously, and he'd read a small sample of my work. I didn't expect anything much. He kissed me, and then I think he gave me some kind of mild signal like a bite on my shoulder. It was a gentle bite, by my standards. So I took matters into my own hands and removed my shirt, preparing to give him some feedback. He leaned back and said, "Whoa," and I thought, Oh damn, I'm totally going too fast for him, he's probably not accustomed to a high degree of sexual directness, so I said, "Sorry, is this okay?" and he laughed and kind of threw up his hands and said, "Sure." That made me a tad nervous -- if me taking off my shirt surprised him, what else would surprise him? -- but I figured

to sleep. I can either take care of that in the bathroom, or I can do it here. If I do it here, then you can help me along, or not. I'd especially appreciate it if you could talk dirty while I jerk off, but it's your decision." Talk about low pressure! Yeah, I learned a lot from that guy. mK oo OK 2) Scripts and Lists. I had one brief relationship last year with a gentleman who is really, really awesome -- but we have very different approaches to S&M. We had a hard time communicating about it... honestly, if he hadn't been such an awesome guy, I would probably have given up on the relationship after a couple nights together. We were great at having extensive theoretical conversations about sexuality, but when it came down to actually having sex with each other, things got puzzling. We had difficulty predicting, understanding, and initiating with each other. I'm not sure what made it so hard. I think, mostly, we just brought really different assumptions to the table. I tend to take an "improvisational" approach to my encounters, whereas he tends to take a "scripted" approach. He's into doing stuff like rearranging the furniture, taking on specific roles (e.g. teacher and student), using costumes and props, and knowing exactly what will be said beforehand. Me, I like going free-form. I talk to my partner about hard limits (things we absolutely don't want to do); I talk to him about things we really like; and we set a safeword. I'm usually okay with diving in from there. If

Press-Enterprise Co. v. Superior Court, SOF US. SOL Cl SSA) ox.cs cas ss ss ss sncnanananannsnnan.naaueellemaied dui dei tie uaeeaenemmn amen eNEN NUNN aeuueeunUNeNCERNNEEMENeeS 14 Press-Enterprise Co. v. Superior Court, A478 U.S. 1 (1986)... scccccccccccceeeeeesssssssssssssnsnneececauacecccccceesesecesseeseceeceesesssceeeecseeeeeeessesssseees 13 Richmond Newspapers, Inc. v. Virginia, A448 U.S. 555 (1980)... ee cccccccceccccccccccccccecceccccccecceeeceesesseeseeceseeesessssnssceaeeeeeeceesesesesesssesesees 13, 14 Constitutions Bee 13 Wer « plate Const, atte Ly, 9 8 sccsasssueeresassenereesconcaewasecessnasscenomexacenereracnasaesesnsenaneseneseenssammaves cveversvanetnerss 13 Statutes NY e Cit Rights, Law $ S020 seccccccvcsconnsssnin se scawsanunees x sasars saan seen meseaneeenensanacnnnmeniennsss averse saanees passim N.Y. Civ. Rights Law § 50-b(1) wou ce cccssscecccccsesccsssccececccssecesssececssccecesseeseeeeeucssscseceseceeseesseueuss 4 ye ON OR hE i 1,4, 11 Other Authorities 22 NYCRR & 125008 ccs sccsczmncsawernssnes. weve csnnasmewawes sas eat erigss ve ewk anasnea nen thanteseemeqaacesaeneeenes 1, 11, 12 Samuel Goldsmith, Jeffrey Epstein Pleads Guilty to Prostitution Charges, N.Y. Post (June 30, 2008), available at https://nypost.com/2008/06/30/jeffrey- EPslein-pleads-GUiy=1e-prostlWITON=CNATGES/ cncssssrccsversesvensnansawnenmawnnnereneneravereseneenenenenenenenencons 6 Jennie Suk Gersen, Why Didn’t the Manhattan DA Prosecute the Trumps or Harvey Weinstein, NE

TABLE OF AUTHORITIES Cases Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983) .................................................. 14 Daily News, L.P. v. Wiley, 126 A.D.3d 511, 6 N.Y.S.3d 19 (1st Dep’t 2015) .............................. 11 Danco Labs., Ltd. v. Chem. Works of Gideon Richter, Ltd., 274 A.D.2d 1, 711 N.Y.S.2d 419 (1st Dep’t 2000) ............................. 13, 15 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ................................................................. 13, 14 In re Application of National Broad. Co., 635 F.2d 945 (2d Cir. 1980) ..................................................... 13, 15 In re Associated Press v. Bell, 70 N.Y.2d 32, 517 N.Y.S.2d 444 (1987) ......................................... 13 In re Capital Newspapers Div. of Hearst Corp. v. Moynihan, 125 A.D.2d 34, 512 N.Y.S.2d 266 (3d Dep’t 1987), aff’d on other grounds, 71 N.Y.2d 263, 525 N.Y.S.2d 24 (1988) ......................................... 11 In re Herald Co. v. Weisenberg, 59 N.Y.2d 378, 465 N.Y.S.2d 862 (1983) ........................................ 11 Mancheski v. Gabelli Grp. Capital Partners, 39 A.D.3d 499, 835 N.Y.S.2d 595 (2d Dep’t 2007) ............................. 11 Maxim, Inc. v. Feifer, 145 A.D.3d 516, 43 N.Y.S.3d 313 (1st Dep’t 2016) ............................ 11, 16 N.Y. Times Co. v. United States, 403 U.S. 713 (1971) .......................................................

TABLE OF CONTENTS Page PRELIMINARY STATEMENT s:ccssesssexsansssexexeagzasnaceteastneranonenwenenecnmmencsaTeeancusussiuergiwoeetecnsusians ] FACTUAL BACKGROUND .............::ccccssessssssssesssssssesceeeeceseceecceneeeececeaeecceceeeecseseeeeccseeeeeeseeeesceseess 3 A. Epstein’s Conviction for Sex Crimes and Designation as a Level Three Sex CO TICNG CT sesssasewsasiusssnnnssunneesesussvernsmevevevevesvwavesessevererensnsnaed lecewauecwssswnnevesevvvnsereeenmensonns 3 B. U0 4 Ca Media Interest in New York and Florida Prosecutors’ Lenient Handling of oe): 5 D. The Post’s Efforts to Obtain the Appellate Briefing Filed with the First Departe nt..............ccssccceccccsseccccsesccceeceseeccccuseecceeceseececeesececsecesseceeseceeseccceneececsesaness 8 ARGUMENT 11 I. THE POST HAS THE RIGHT TO MOVE THIS COURT FOR AN ORDER UNSEALING THE APPELLATE BRIEFING wsmneememmemnmemececernmeemnen 1] II. GOOD CAUSE EXISTS TO UNSEAL THE APPELLATE BRIEFS ................cccceeeeees 12 £6 (EES ne a 17 4811-3721-9459v.3 3930033-000039 HOUSE_OVERSIGHT_016485

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION — FIRST DEPARTMENT —m—ae_a ee eee eee Kr wr ew eee eee eee eee ewe ee ee eee THE PEOPLE OF THE STATE OF NEW YORK, : App. Div. No. 6081 Respondent, On Appeal from New York Supreme Court, New York County, Index No. 30129/10 - against - (Pickholz, J.) JEFFREY E. EPSTEIN, Defendant-Appellant. ee ee MEMORANDUM OF LAW IN SUPPORT OF MOTION BY NYP HOLDINGS, INC TO UNSEAL APPELLATE BRIEFS DAVIS WRIGHT TREMAINE LLP Robert D. Balin John M. Browning 1251 Avenue of the Americas, 21st Floor New York, New York 10020-1104 Telephone: (212) 603-6410 Counsel for Non-Party Movant NYP Holdings, Inc. 4811-372 1-9459y.3 3930033-000039 HOUSE_OVERSIGHT_016484

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eo Tremai Ne LLP New York, NY 10020-1104 Robert D. Balin (212) 489-8230 tel (212) 489-8340 fax robbalin@dwt.com January 4, 2019 VIA HAND DELIVERY eed Clerk of Court pn 4, UY Supreme Court of the State of New York . . APP. pW: Appellate Division, First Department os cous est. 27 Madison Avenue SUE Eee! New York, NY 10010 Re: Motion to Unseal Bnefs (with Names of Victims Redacted) in People v. Epstein, N.Y. Co. Index No. 30129/10 (Appellate Division No. 6081 Dear Sir or Madam: We wnte on behalf of non-party movant NYP Holdings, Inc., publisher of the New York Post (the “Post”), to withdraw the motion filed by the Post on December 21, 2018 seeking an order to unseal the briefs submitted by the parties in the above-captioned appeal (with the names of victims redacted). Pursuant to NYCRR § 1250.2, we write to inform the Court that the Post hereby withdraws its pending motion without prejudice and expressly reserves the right to refile the motion. See NYCRR § 1250.2(a) (“Withdrawal of Motion. A moving party may file a written request to withdraw a motion at any time prior to its determination”). The Post intends to refile its motion for an order unsealing the briefs (with appropriate redactions), but has withdrawn its pending motion in response to an affidavit submitted by the office of the Manhattan District Attorney on December 28, 2018. That affidavit asserts that the Post was required, but failed, to provide notice of the unsealing motion to “prosecutor’s offices in Flo

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at ote tem et yt ES ee ee ee —, ———= a ny ew me em ee oe ee ee em ee ie ew Pete - rye em ee ~ — meow From: Martin G. Weinberg <owlmgw@att.net> Sent: Thursday, December 27, 2018 8:55 AM To: Browning, Jack <JackBrowning@dwt.com>; 'Maksim Nemtsev' <menemtsev@gmail.com> Cc: Balin, Robert <robertbalin@dwt.com>; owlmgw@att.net Subject: RE: Motion to Unseal Epstein Appeal Briefs [EXTERNAL] Jack, my local counsel in NY (we are filing for pro hac vice) has advised that the Court Clerk may require a signature on the Stipulaion. Out of an abundance of caution, can you sign and return and we will file today. Thanks, Marty ae es el Se yes er ky SN teh) es A ee eee te a teetet So wer moe ek ee ot ee a +. sm —a a eS eee oe ‘From: Browning, Jack [mailto:JackBrowning@dwt.com] Sent: Wednesday, December 26, 2018 12:19 PM To: Maksim Nemtsev <menemtsev@gmail.com> Cc: Martin G. Weinberg <owlmgw@att.net>; Balin, Robert <robertbalin@dwt.com> Subject: RE: Motion to Unseal Epstein Appeal Briefs Maksim, Please find attached a copy of the stipulation with some minor edits, which you can go ahead and file/serve. If you do ultimately file an opposition, please serve us with copies via email. Best regards and happy holidays, Jack From: Maksim Nemtsev <menemtsev@gmail.com> Sent: Wednesday, December 26, 2018 10:33 AM To: Browning, Jack <JackBrowning@dwt.com> Cc: Martin G. Weinberg <owlmgw@att.net> Subject: Motion to Unseal Epstein Appeal Briefs [EXTERNAL] Hi Jack, Attached is a draft Stip

Browning, Jack | = From: Martin G. Weinberg <owlmgw@att.net> Sent: Thursday, January 03, 2019 8:14 AM To: Browning, Jack; ‘Maksim Nemtsev' Cc: Balin, Robert; owimgw@att.net Subject: RE: Motion to Unseal Epstein Appeal Briefs [EXTERNAL] Jack, after consideration of your request for the unsealing of the appellate briefs with redactions of certain identities, we take no position on behalf of Mr Epstein. | appreciate your courtesy in providing me with more time to respond given the holidays. Let me know if this email suffices. Thanks, Marty Martin G. Weinberg, Esq. 20 Park Plaza, Suite 1000 Boston, MA 02116 off - 617 227 3700 fax - 617 338 9538 cell -617 901 3472 Se ee se ee ee ee a ie a i i ee ee ee eee This Electronic Message contains information from the Law Office of Martin G. Weinberg, P.C., and may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, please note that any disclosure, copying, distribution, or use of the contents of this message is prohibited. From: Browning, Jack [mailto:JackBrowning@dwt.com] Sent: Thursday, December 27, 2018 10:13 AM To: Martin G. Weinberg <owlmgw@att.net>; 'Maksim Nemtsev' <menemtsev@gmail.com> Cc: Balin, Robert <robertbalin@dwt.com> Subject: RE: Motion to Unseal Epstein Appeal Briefs Marty, Please find attached a scan of the signed signature page. Best regards, Jack HOUSE_OVERSIGHT_016479