Multimedia company asks court to make ‘immediate ruling’

Wednesday, September 9, 1998

A San Francisco-based multimedia company challenging a federal law that criminalizes “obscene” and “indecent” online speech made to “annoy” filed a motion last Friday, informing the court that it will seek “an immediate ruling” on Oct. 9.

ApolloMedia, which maintains the Web site, said it is asking a panel of three federal judges for the U.S. District Court for the Northern District of California to rule immediately on its federal lawsuit because the judges have failed to issue a ruling despite a holding a hearing on the matter nearly a year ago.

The company challenged the law on First Amendment grounds in January 1997. The company's Web site — which calls itself “a meeting place for the uninhibited” — offers self-described “provocative” and “scathing” commentary on controversial issues and allows individuals the chance to send e-mail messages criticizing various public officials.

The problem for the company is a provision in the federal Communications Decency Act that criminalizes any “comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, … [intended] … to annoy, abuse, threaten, or harass another person.”

The company contends that this provision, like other provisions in the CDA, violates the First Amendment. In June 1997, the U.S. Supreme Court in Reno v. ACLU struck down two provisions of the CDA that prohibited the online dissemination of “indecent” and “patently offensive” materials to minors. However, other provisions of the CDA are still in effect.

Clinton Fein, ApolloMedia's president, stresses that his company is only challenging the provision of the CDA that punishes “indecent” speech intended to “annoy” — a provision he says that “makes criminal constitutionally protected communications among adults.”

ApolloMedia filed a motion in January 1997 for a preliminary injunction to prevent the government from enforcing the law. On Oct. 20, 1997, the three-judge panel held a hearing to determine the constitutionality of the law.

The company's attorneys filed a motion for an expedited ruling last March, but have since filed another motion calling for the court to make an “immediate ruling.”

The “motion for immediate ruling on request for equitable relief” states: “It has now been almost a year since the hearing on the preliminary injunction, and plaintiff continues at risk by communicating material that may well be deemed 'indecent' with intent to 'annoy.'”

“It remains financially burdensome for us at to run everything by our attorneys before we can post it,” Fein said. “The bottom line is that this law is really detrimental to anyone conducting commerce or doing business on the Internet.”

“The court's delay in handing down a decision is, most certainly, unsettling,” Fein said.

William Bennett Turner, ApolloMedia's lead attorney, said: “Basically, we filed this motion to get the court's attention. I can't imagine why it has taken the court so long to rule.”

Turner said that perhaps the “court has been lulled by the government's position that it will not prosecute 'indecent' communications intended to annoy, but will only prosecute 'obscene' communications.”

While the court technically does not have to respond to ApolloMedia's latest motion within a certain time frame, Turner said that “our position is that a refusal to rule by the court can be considered a refusal to grant an injunction which would be appealable.” Any appeal of the three-judge panel's decision, or lack thereof, would be made to the U.S. Supreme Court.

The Department of Justice attorney representing the government referred questions to the Public Affairs Office. Calls placed to that office were not returned.