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Thursday, July 1, 1999

Put Your Head Between Your Legs and Kiss Your Ass Goodbye!
The Center for Democracy and Technology Claims to Be
Looking Out for Your Rights on the Internet.

by Clinton Fein

Click to Send CardClaiming to "promote democratic values and constitutional liberties in the digital age", the Center for Democracy and Technology (CDT) is plagued by one of the pitfalls that all too often beset non-profit organizations. They can't afford good attorneys. Their mission statement pertaining to free speech claims "expertise in law, technology, and policy" and "seeks practical solutions to enhance free expression and privacy in global communications technologies." The reality, judging by the material they release, is that their expertise appears more like sub-standard misinformation, their analysis is legally inaccurate, and their approach to technology and policy is dated and out of touch.

The day after the Supreme Court ruled on annoy.com's constitutional challenge, the CDT issued the following press release that demonstrates that they neither understood the law we challenged nor the result of the ruling. (The italics deconstructing the text are ours)

Internet Free Speech Precedent Unaffected by annoy.com Ruling

Yesterday's Supreme Court ruling in ApolloMedia v. Reno (the annoy.com case) does not in any way diminish the Internet free speech precedent established in ACLU v. Reno, the Supreme Court's landmark 1997 case striking down provisions of the Communications Decency Act (CDA) as unconstitutional. (Gee! A little defensive! At least we got them to admit that it was just provisions of the CDA that were originally struck down. Their headline reads "Supreme Court Rules Communications Decency Act Unconstitutional!" Our question is are they deliberately lying or just confused?)

On Monday, April 19, the Supreme Court affirmed a lower court ruling upholding a different provision of the CDA dealing with harassing speech. (Actually, it was the "intent" to "annoy" component we challenged. Harassment is another issue). The lower court held that the provision of CDA criminalizing a communication "which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten or harass another person" is not unconstitutional on its face with respect to *obscene* communications communications (sic - newer technology provides the benefit of a spell-check!) only.

This ruling does not in any way affect the broader findings and conclusions of the Supreme Court in ACLU v. Reno -- that the Internet is deserving of the highest level of First Amendment protection and that the portion of the CDA restricting "indecent" communications among adults violated the First Amendment. (No, but it affects the inaccuracy evident in your headlines, no? And the Supreme Court did not rule in ACLU v. Reno anyway.)

Several points distinguish the annoy.com case from the 1997 ACLU v. Reno decision:

    • First Amendment law draws a distinction between indecency, which is pornographic material that adults are constitutionally entitled to purchase and possess, and obscene material, which constitutionally can be outlawed even for adults. The 1997 case was about the former, ApolloMedia was about the latter. (Unadulterated nonsense. If Alan Davidson can read, the question is did he?)
    • The portion of the statute upheld in Monday's decision required an additional element: the sending of messages with the intent to annoy, abuse, threaten or harass. That portion of the CDA is much closer to laws that make it a crime to deluge someone with harassing phone calls. (Except that the law refers to the transmission of communications as well. Like simply publishing content on a web site, so the point is a little misleading and a little confused.)
    • In the annoy.com case, the Supreme Court did not hear arguments and issued no written opinion, a clear indication that the court found no issue in the case requiring reexamination of its holding and reasoning in ACLU v. Reno. (What is this defensiveness about ACLU vs. Reno? And as a matter of fact, again, the Supreme Court ruled in Reno v. ACLU, an appeal by the government, and a case in which ApolloMedia actively participated by filing an amicus curiae brief. It happens to be our victory too - why would we try to invalidate it? ACLU v. Reno was heard by a panel of three judges at a District Court level in Philadelphia.)

One more point: Like ACLU v. Reno, the annoy.com case was a facial challenge, meaning annoy.com was not charged with any violation but was asking the Court to rule in advance that there was no possible constitutional application of the intent to harass section of the law. (Intent to "annoy". We have to ask why the CDT released a statement by someone who has so sleazy and inadequate an understanding of the law. A first-year undergraduate would fail if this were a test.) If annoy.com is ever charged under the harassment section, it still can challenge the constitutionality of the law as applied in light of the specific facts.

The following letter was sent to the CDT following their diabolical release.

To whom it may concern:

It was with a mixture of horror and yet a certain sense of predictable resignation that I read the Center for Democracy and Technology's press release commenting on the Supreme Court decision in ApolloMedia v. Reno. (http://www.cdt.org/press/042099press.shtml)

It appears that the author of the release neither read nor understood the decision, or its implications.

First, the release categorically states that ApolloMedia fought an obscenity provision. We did not. The whole point was that an 'indecency' provision remained (and still does although now clarified thanks to ApolloMedia) on the books.

ApolloMedia sued to establish that the government had no power to outlaw "indecent" speech online, with or without an intent to "annoy" anyone. This was the net effect of the district court's decision. And one that the Supreme Court upheld. In fact, the majority acknowledged that "indecent speech which is not obscene falls within the protection of the First Amendment." The statute was so blatantly unconstitutional, however (Janet Reno never sought to defend it as written), that it should have been condemned forthrightly rather than "construed" to save it from that fate.

The CDT's focus on "harassment" demonstrates a lack of understanding of what ApolloMedia fought for and achieved. We never sought to challenge the 'harassment' component of the law. It was the 'annoying' part we found unconstitutionally vague. Your annoying understanding of the law and interpretation of the decision couldn't clarify the distinction more clearly.

The result of the Court's decision and the lazy and sloppy interpretations as are evident in your press release leaves the online public justifiably confused. If users take the trouble to look up the law, the language will and should frighten them. On its face it covers dirty words and much else, and there's no practical way for users to discover that the law doesn't mean what it says and that it has been rendered completely toothless owing to ApolloMedia v. Reno.

You may want to update your readers, and modify your "Supreme Court Rules Communications Decency Act Unconstitutional" headline on your site. Clearly, it didn't. Headlines in almost every major publication render the very statement ridiculous (http://annoy.com/appeal_coverage.html), and while it's appropriate to rejoice over the Reno v. ACLU decision, it does no one any good to overstate its reach or ignore the areas of law that the Communications Decency Act continues to regulate. Especially in areas regarding libel, defamation, third-party liability for content providers and of course, obscenity.

Since the CDT testifies before congress on such issues as communications on the Internet, and many media outlets may consider the CDT a reliable source you need to seriously examine the extent to which your statements and understanding of the law place the First Amendment in a more precarious position than it already is, and explain how and to what end you could release such a shoddily researched and ill-informed statement. Have any of you even looked at the court documents? Or did you speak with our attorneys? (http://annoy.com/case.html)

I have included in this letter a very rare handful of journalists and writers who do understand these issues so that you may let them know directly why, in light of this sort of blatant and somewhat dangerous misinformation, they should afford your organization the credibility and respect you seek. In the meanwhile, we will continue to expend our time and resources explaining to people who paid attention to your release that our objective never has been, and never will be, to use the medium for harassment.

Clinton Fein
Editor & Publisher

Needless to say, the Center for Democracy and Technology was either too embarrassed by their ineptitude to respond, or remain too embarrassed by their ineptitude to clarify and restate their position. So if you are someone who cares about democracy and technology, feel free to ask the CDT why they have information on their web site that is factually incorrect and deliberately misleading, and what gives them the right to endanger your First Amendment rights by misinforming the public and the legislature. Here is the contact name on the press release.

Alan Davidson
CDT Staff Counsel
Phone: 202-637-9800

Maybe they'll have the courtesy to respond to you.


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