ApolloMedia takes challenge of CDA provision to Supreme Court

Wednesday, December 9, 1998

Although a federal court ruled that government officials could not prosecute indecent online communication made with the intent to annoy, the company behind the Web site annoy.com contends the judges did not go far enough.

ApolloMedia Corp. asked the U.S. Supreme Court on Monday to hear its challenge of the federal law prohibiting “annoying” online speech that is obscene or indecent.

The company, which maintains a Web site devoted to annoying speech, first challenged the law, which was a little-noticed provision of the Communications Decency Act of 1996, in January 1997.

The law criminalizes any “comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent … [that is intended] to annoy, abuse, threaten, or harass another person.”

The company contends that the law violates free-speech rights because it restricts indecent speech which — unlike obscene speech — is protected by the First Amendment.

Last September, a three-judge panel of the U.S. District Court for Northern California ruled 2-1 in ApolloMedia Corp. v. Reno that the statute should be read only to prohibit obscene speech — not indecent speech. According to the majority, the “string of words” in the statute — “obscene, lewd, lascivious, filthy or indecent” — applies only to obscenity, not to indecency.

Judge Susan Illston dissented, finding it a stretch to read the statute as constitutional and arguing it should be struck down entirely. Illston wrote: “This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are.”

ApolloMedia wants the Supreme Court to adopt Illston’s view. “This medium is too internationally important to both communications and commerce to be governed by such a narrow and tortured interpretation of the law,” said Clinton Fein, president of the company.

“Our legal, social and political landscape is dominated by the pedantic parsing of words by the president, lofty rhetoric by Congress about upholding the Constitution and an unquestioned willingness by the media to buy it,” Fein said. “If, in this climate, a federal court can find this law constitutional, they leave us no other acceptable choice but to exhaust the appropriate remedies.”

First Amendment attorney William Bennett Turner, who is the company’s lead attorney in its legal challenge, said: “Laws ought to mean what they say. Instead of rewriting the law, the district court should have forthrightly condemned it as unconstitutional. We’re asking the Supreme Court to make it clear, for the entire nation, that Congress can’t outlaw ‘indecent’ speech, whether it ‘annoys’ some government official or not.”


  • Federal court rules that annoy.com may continue to annoy 9.25.98
  • Multimedia company asks court to make ‘immediate ruling’ 9.9.98
  • Multimedia company, government seek ruling on decency 3.17.98