Federal court rules that annoy.com may continue to annoy

Friday, September 25, 1998

The provision in the Communications Decency Act that prohibits online communications that are “obscene, lewd, lascivious, filthy, or indecent” applies only to obscene speech and not indecent speech, a special panel of three judges in San Francisco ruled Wednesday.

ApolloMedia Corporation, a multimedia company that manages a Web site devoted to “annoying” speech sued on Jan. 30, 1997, contending that the provision as applied to indecent communications violated First Amendment free-speech rights.

The provision at issue criminalized 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.”

ApolloMedia only challenged the law to the extent that it prohibits “indecent” communications made with intent to “annoy.” The company never challenged the prohibition on “obscene” communications.

The distinction between obscene and indecent is important because the U.S. Supreme Court made clear in Sable Communications of California, Inc. v. FCC (1989) that while obscenity receives no First Amendment protection, indecent speech that is not obscene falls under the protective shadow of the First Amendment.

The Justice Department filed court documents saying that they interpreted the provision to apply only to obscene speech, not to indecent speech.

However, according to Clinton Fein, president of ApolloMedia, the Justice Department would never put in writing that they would not prosecute him for the speech on his Web site.

The panel of three judges ruled 2-1 in ApolloMedia Corp. v. Reno, the majority writing that “because we find the provisions regulate only 'obscene' communications, the court does not decide the issue of whether Congress may, under the circumstances addressed in the subject provisions, regulate 'indecent' speech made with the intent to 'annoy.'”

The majority did note the Supreme Court's ruling in Sable that indecent, non-obscene speech is protected by the First Amendment.

According to the majority, the “string of words” in the statute—'obscene, lewd, lascivious, filthy or indecent”—applies only to obscenity, not to indecency.

The court majority reasoned that when there are different ways to read a statute, every effort should be made to read it in a way that makes it constitutional.

Federal district court Judge Susan Illston dissented, however, finding that the challenged portion of the statute should be struck down and severed rather than given a strained reading.

Illston wrote: “I disagree … with the majority's conclusion that the actual words of the statute — 'obscene, lewd, lascivious, filthy, or indecent' — should be read to mean only 'obscene.' 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 found the ruling a mixed blessing. While company officials disagreed with the statutory interpretation, they were pleased that indecent communications would not be prosecuted.

“It's great that the government is construing the statute to only apply to obscene speech,” Fein said. “However, although I am happy with part of the opinion, I think the majority issued a cowardly decision. I was hoping that the dissenting judge's view would have carried a majority of the court.”

Will Mancino, spokesman for the Justice Department, said the Justice Department was “still reviewing” the court's decision.

Fein said he did not know whether he would appeal the decision to the U.S. Supreme Court.