Multimedia company, government seek ruling on decency

Tuesday, March 17, 1998

ApolloMedia — a multimedia company that manages a Web site devoted to “annoying” speech — and the federal government continue to wait for a federal court to determine the constitutionality of a law prohibiting the sending of “indecent” messages on a computer intended to “annoy” another person.


In the meantime, both the company and the government have recently filed pleadings before a panel of three federal judges in the case — ApolloMedia v. Reno.


The law at issue is a provision in the Communications Decency Act that 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.”


ApolloMedia filed suit against U.S. Attorney General Janet Reno in January 1997, claiming the law, like other provisions in the CDA, violates First Amendment free-speech rights.


Many assume that the U.S. Supreme Court struck down the Communications Decency Act last summer in Reno v. ACLU.


That is only partially correct. In the case the Supreme Court struck down only two provisions of the CDA designed to protect minors from “indecent” and “patently offensive” materials on the Internet.


ApolloMedia officials say they filed the lawsuit because they need to know exactly what communications violate the law. The company maintains a web site known as “annoy.com” that encourages people to send e-mail messages criticizing public officials. In its lawsuit, the company asserts that it wishes to criticize several public officials about their role in enacting the CDA:


“For example, plaintiff wishes to criticize President Clinton, Speaker Newt Gingrich, Senators Jesse Helms, Dianne Feinstein and James Exon, former Congressman Robert Dornan, Ralph Reed of the Christian Coalition, California Governor Pete Wilson, Justices of the Supreme Court, and others, using language that may be considered 'indecent,' with the intent to 'annoy' such persons, because of their role in proposing, enacting and approving the Communications Decency Act and because of their role in taking other public measures with which plaintiff disagrees.”


ApolloMedia contends that the “annoy” provision of the CDA punishes protected speech and “invites arbitrary and discriminatory enforcement.” A special panel of three federal judges heard arguments in the case in October, but they have not yet issued a ruling.


Because of the court's delay, ApolloMedia recently filed a motion for an expedited ruling–which translates “Hurry up!”


Clinton Fein, president of ApolloMedia, said: “This law provides no guidelines for publishers. No one knows what the standards are. What exactly is annoying? Now, every communication on annoy.com has to be reviewed by an attorney because we are guided by such uncertainty in the law. This is proving to be very costly and is chilling our free-speech rights.”


Fein emphasized that “it is disconcerting that the court is taking so long to make a ruling.”


Nor has the government remained idle while the judges deliberate. The government recently filed a paper before the court–”Instruction on Interpretation of 47 U.S.C. § 223(a)(1)A), Part of the Communications Decency Act”–which instructs all U.S. attorneys concerning the Justice Department's interpretation of the “annoy” provision of the CDA.


The law prohibits only “obscene” communications, according to the paper, which tells U.S. attorneys that “this interpretation of the statute shall govern the conduct of your office.”


Fein said that “the government is essentially arguing against its own earlier position in the hopes of obtaining a favorable ruling. The government is saying that it doesn't mean to prohibit 'indecent' speech, but means to prohibit only 'obscene' speech. This convenient argument does not make the law constitutional. The law is unconstitutional.”


All parties say they hope the federal judges will rule sometime soon to let everyone know whether the law is constitutional or not.