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Wednesday, September 9, 1998

ApolloMedia v. Reno: Dancing in the Dark

by Clinton Fein

It is no secret we are currently challenging the CDA provision that criminalizes any "indecent" computer communications intended to "annoy" another person. This provision makes criminal constitutionally protected communications among adults, including public officials. We are not challenging other provisions outlawing "obscene, threatening, or harassing communications."

The suit was filed January 30, 1997 in the United States District Court in San Francisco. It contends that the CDA provisions violate the First Amendment guarantee of free speech. Other CDA provisions were struck down last year by the U.S. Supreme Court. These provisions made it criminal to communicate "indecent" materials to minors, and they had certain "safe harbor" defenses. The provision we are attacking is applicable to adults and has no defenses.

As it stands now we have yet to receive word from the court, despite having argued our case before three federal judges on October 20, 1997. We are unclear why it has taken so long for a decision to come down.

The provision's vagueness invites arbitrary and discriminatory enforcement, including unseemly government surveillance of the private online conversations of ordinary innocent people. Given the push by the FBI and Justice Department to curtail encryption and step up rather than tone down Internet enforcement, the interpretation of this provision will have a significant impact on all of the legislation and policy that has been drafted and introduced since the Supreme Court struck down the primary indecency provision in Reno v. ACLU.

But who knows what goes on in the minds of Federal judges? It continues to be financially burdensome, time consuming and expression chilling to run by our attorneys everything potentially criminal before annoy.com publishes it. Especially given that at the time ApolloMedia and the Attorney General agreed to push back the date of the hearing, pending an outcome in the Supreme Court, the Government demanded, and retains, the authority to retroactively prosecute us if the "annoy" provision before the court is deemed constitutional.

While the government is prohibited from investigating or prosecuting annoy.com in the interim, it is all the more important for the medium and industry as a whole, to have the constitutionality of this legislation resolved as soon as possible. The court's delay in handing down a decision is, most certainly, unsettling.

It has been quite a challenge to explain to journalists and students -- especially in the fields of law and communications or journalism -- that the Communications Decency Act was not struck down, just certain provisions of it, as media coverage constantly refers to the legislation as dead. The "good Samaritan" provision in the Zeran v. America Online case is just one very important ruling in the defamation area that demonstrates that the CDA is alive and well. A similar ruling was made in favor of AOL by the trial court in the Blumenthal v. Drudge case in the area of libel, and the obscenity provisions, and the annoy provision we are challenging still remain enforceable.

The extent to which this has been overlooked or misreported by those purporting to be journalists, First Amendment experts or both is disturbing. One of the most interesting things about annoy.com has been witnessing the media response to it. They are forced to cover it because they cannot authentically cover First Amendment or Internet related legal issues without doing so, or ignoring the academic study of the Constitution. Yet they are faced with the two-pronged dilemma of covering controversial and provocative content that is also highly critical of the quality of their coverage.

Next month will mark a year since the three-judge panel heard our argument. On Monday August 31, 1998, ApolloMedia filed another motion with the Federal Court insisting they make a ruling and issue a preliminary injunction, as well as reminding them that the currently enforceable CDA provides for expedited determinations of challenges to its constitutionality and that the challenges be heard by a three-judge court, with direct appeal to the Supreme Court within 20 days. We have asserted that any further unexplained delay is tantamount to the refusal to grant injunctive relief, and therefore appealable.

We will keep you informed. The battle is still far from over.


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