Supreme Court follows lower court in upholding ban on obscene e-mail

Tuesday, April 20, 1999

Finally, the Supreme Court has found a part of the Communications Decency Act of 1996 that it can live with.

In a one-line ruling yesterday, the court affirmed a lower court’s decision upholding a provision of the law that makes it a crime to send obscene e-mail via the Internet for the purpose of annoying or harassing someone else.

After the high court’s 1997 ruling in Reno v. ACLU, you might have thought that the entire law, which represented Congress’ first major effort to clean up the Internet, had been struck down for violating the First Amendment.

But that decision did not deal with the e-mail provision, which had been challenged in a separate lawsuit by ApolloMedia Corp., a San Francisco firm that operates The Web site includes some potentially offensive material, and also enables users to send anonymous e-mail to public officials.

A lower court panel last year ruled in the ApolloMedia case that the law was constitutional because it only applied to obscene communications, which have long been outside the protection of the First Amendment.

The law itself, 47 U.S.C. 223(a)(1)(A), seems to outlaw more than obscenity. It prohibits communication that is “obscene, lewd, lascivious, filthy, or indecent” with the intent to “annoy, abuse, threaten, or harass another person.” Unlike obscenity, material that is lewd or indecent has been found in other cases to enjoy some protection under the First Amendment.

But after the Reno v. ACLU decision, the Justice Department took the position that the law, in spite of its wording, only applied to obscenity. Several other statutes that use a similar “string of words,” the department noted, also have been interpreted to apply only to obscenity. It also argued that courts are obliged to read statutes in a way that avoids constitutional doubts.

A three-judge panel in California agreed with the department’s interpretation and upheld the law as narrowly construed. ApolloMedia Corp. v. Reno then went to the Supreme Court, where the Justice Department argued that it should be affirmed. The court took that action yesterday.

Reaction from the First Amendment community was mixed. Since obscene communications have long been against the law, the court’s action breaks no new ground if that is all the law covers. Neither ApolloMedia nor other civil liberties groups have challenged the obscenity ban. “Nothing is illegal today that wasn’t illegal yesterday,” said Ann Beeson, staff attorney with the American Civil Liberties Union.

“It doesn’t mean that the Internet will be regulated in any new way,” said lawyer Christopher Wolf of Proskauer Rose, a New York law firm that advises Internet-content providers.

He said that after the court’s action, the law could only be invoked if the communication was both obscene and intended to annoy. Obscene communications between consenting adults, or communications intended to sell something rather than to annoy someone would not be prohibited by the law, Wolf said.

But others still have concerns. Even though the current interpretation of the law is narrow, the broader-sounding words remain on the books, making it possible that a future Justice Department could take a different view. Since the Supreme Court did not actually issue its own ruling — it merely affirmed the lower court panel without comment — its action yesterday was not a strong precedent in favor of the narrow interpretation.

“I trust Janet Reno, but I would not trust the next attorney general,” said William Turner, lawyer for ApolloMedia.