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Monday, December 7, 1998

ApolloMedia v. Reno: Supreme Court Appeal

by Clinton Fein

Cowardice asks the question, "Is it safe?" Expediency asks the question, "Is it politic?" Vanity asks the question, "Is it popular?" But conscience asks the question, "Is it right?" And there comes a time when one must take a position that is neither safe, nor politic, nor popular -- but one must take it because it's right.

Dr. Martin Luther King Jr.

annoy.com today appealed to the Supreme Court a decision handed down by a federal court on September 23, 1998 in San Francisco. ApolloMedia filed a lawsuit against Janet Reno, Attorney General of the United States, challenging the constitutionality of a provision of the Communications Decency Act (CDA) on January 30, 1997. The court heard the lawsuit, which was filed concurrently with the launch annoy.com, on October 20, 1997. The CDA made the communication of anything "indecent" with the intent to "annoy" a felony punishable by a fine and up to two years imprisonment.

In 1997 we also weighed in with an amicus to an additional challenge launched by the American Civil Liberties Union to other provisions that were then struck down by the Supreme Court as unconstitutionally vague.

We waited almost a year before the federal court panel of three federal judges issued a ruling, which was only a partial victory for ApolloMedia and its publication, annoy.com. Rather than strike down the provision as unconstitutional by issuing a permanent injunction against its enforcement, the court instead chose to narrowly interpret a long string of words - "obscene, lewd, lascivious, filthy or indecent" to simply mean "obscene" only.

Additionally, the ruling lacked the jurisdictional scope ApolloMedia had sought because its interpretation applies only in the Northern District of California.

While ApolloMedia celebrated the immediate victory that prohibited from prosecution for "indecent" speech - despite national media reports including The New York Times that referred to it as obscene - the ruling inadequately addressed many of the issues raised by ApolloMedia's initial challenge. In strictly legal terms, ApolloMedia lost the case, failing to obtain the injunction we sought. The court, in a split decision, took the side of the government, essentially relying on old precedents that are ill suited to reflect the intricacies associated with a new medium that is on the verge of revolutionizing communication as we know it.

The decision - to appeal or not to appeal - was not an easy one. Mounting a Supreme Court challenge is risky. Before making a decision, ApolloMedia engaged in an inquiry that might be compared to an economic risk/reward analysis.

Among the issues considered:

The string of words was limited by the district court to obscene communications only. Given that obscenity has never been provided First Amendment protection, the intent requirement, whether to annoy or threaten is irrelevant and redundant. The court suggested that what congress had intended by the "annoy" provision was to ensure that non-consensual obscenities were prohibited. This marks the first time that obscenity has been distinguished in such a way as to open up the argument that consensual obscenity might have some constitutional protection, if there is not an "unwilling victim".

Current understanding of the law is confused and dangerous. From the moment the Supreme Court ruled that a key indecency provision be struck down, the media and most First Amendment organizations involved have consistently mischaracterized the extent of the ruling, by stating that the entire CDA was struck down.

While celebration is to be expected from a successful Supreme Court challenge - well fought and strategic - to mislabel it or overstate its reach and relevance has had a damaging effect on the state of the First Amendment, and ignores the extent to which other CDA provisions are still enforceable.

Law does not exist in a vacuum. A social and political understanding of the forces that shape legislation is a crucial component to any successful legal strategy. Declaring the CDA dead ignores the fact that the CDA continues to govern crucial industry and international issues such as privacy, defamation and libel. This misinformation is academically inappropriate, legally inaccurate and journalistically unprofessional.

Our legal, social and political landscape is dominated by the pedantic parsing of words by the President, lofty rhetoric by congress about upholding the constitution and an unquestioning willingness by the media to buy it. If, in this climate, a federal court can find this law constitutional, they leave us no other acceptable choice but to exhaust the appropriate remedies. We have a right, if not duty, to demand that constitutionally precarious legislation be clearly defined. We cannot and will not allow our future to be determined by or placed in the hands of well meaning, but unfortunately narrowly focussed organizations and entities.

Bill Gates' Microsoft and MSNBC, Steve Case's America Online and the other huge media organizations and publishing companies that support the First Amendment may have a limited interest in protecting free speech. However the Internet is a revolutionary medium that is crucial to communications, commerce, access and accountability. The day that we allow ourselves to be defined by the media that gave us OJ, Diana and Monica, will be a cold day in hell.

Most Americans are unaware of how dangerously fragile one of the most important freedoms they have, governing the most important media innovation of the century is. Simply because some of the plaintiffs in the original CDA challenge wanted to project a resounding victory spin, rather than communicating the need to remain vigilant in the pursuit of liberty. And because almost every journalist from almost every major media outlet was too lazy, too arrogant or too stupid to recognize the extent to which their own misinformation made a mockery of their coverage of the legal and technological issues they were claiming to be experts on.

In the course of the past two years, annoy.com's commentary has become a familiar part of discourse that defines today's crucial issues governing censorship and the media. Our message board systems, which offer concealed identity options coupled with our "mad lib" technology, has been copied on countless web sites, and is in fact the most astutely packaged conflict resolution technology, and experiment in free expression ever seen on the Internet.

Almost everything on annoy.com is designed to challenge preconceived notions of decency and annoyance. Not for the sake of being obnoxious, but to demonstrate the foolishness of the legislation we are challenging. From the ability to send anonymous communications to the unmediated and unfiltered message board/discussion system, the technology itself provides identity management mechanisms that allow for expression to take place without any fear of repercussions for opinions, or fear of having one's true identity revealed. We explore issues like privacy, libel and defamation, and examine the extent to which these can be addressed to shape legislation in a manner that is meaningful and useful.

And then there are our own selfish commercial interests. There is no desire for martyrdom here. Martyrs become martyrs once they're dead anyway. ApolloMedia, annoy.com's parent, constructs for commercial and non-profit entities, some of the most complex and sophisticated tools in the area of conflict resolution technology ever. Understanding crucial social and workplace issues such as racism, sexual harassment and elitism, to developing and constructing communications technologies that facilitate the exploration of language and the importance of meaning, context, mood and occasion are vital to fostering understanding among groups and individuals.

Yes, instead of using technology for building bombs, landmines and cruise missiles, we believe that the ability to communicate openly without fear of reprisal, torture or death are better uses for the employment of technological innovation. This site and lawsuit are designed to educate others and ourselves as to the most appropriate ways of dealing with law and responsibility in a global technological environment. This is not simply a geocentrically focussed American issue. We can no longer pretend that it is possible to be governed by geographically designed jurisdictions.

We cannot drag old laws and viewpoints kicking and screaming into an environment in which they are not only inappropriate, but also dangerously inadequate. The technology we are capable of creating today requires that legislation be fluid and extensible. While tradition, pomp and protocol have had, and will likely continue to have, their place in our legal systems; our current technological progress no longer affords us the privilege of moving at the same pace as we did during the age of telephone and television.

Communications structures have never been more complex, and before we begin dealing with issues like satellite airspace disputes, we had damn well better figure out how to communicate and govern a global medium here on earth in a manner that enhances and progresses us a species - not that stifles and destroys us.

This endeavor is not expedient. It is not politic, and indeed, it more often than not, is not particularly popular. Real free speech seldom is. But fighting this battle is the right thing to do. Our fervent hope is that the Supreme Court recognizes this and rules accordingly.


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