Thursday, September 24, 1998

Annoy, annoy, annoy!!!
Panel of Federal Judges Divided on CDA Challenge. Celebrates Victory



Clinton D. Fein
President, ApolloMedia Corporation
Telephone: 415/552-7655

Michael Traynor
Cooley Godward LLP
Telephone: 415/693-2000

William Bennett Turner
Rogers, Joseph, O'Donnell & Quinn
Telephone: 415/956-2828

Tsan Merritt-Poree
Cooley Godward LLP
Telephone: 693-2000 



September 24, 1998, San Francisco -- San Francisco based multimedia firm ApolloMedia Corporation obtained a ruling from a special three-judge federal court that had been deliberating for nearly a year over the company's challenge to a remaining provision of the Communications Decency Act. ApolloMedia filed a lawsuit against Janet Reno, Attorney General of the United States, challenging the constitutionality of the Communications Decency Act (CDA) on January 30, 1997. The lawsuit, which was filed concurrently with the launch of the company's controversial and critically acclaimed "" web site, was heard by the court on October 20, 1997. The CDA, passed by Congress was signed into law by President Clinton in February 1996, and made the communication of anything "indecent" with the intent to "annoy", a felony punishable by a fine and up to two years imprisonment.

In a divided ruling, the court upheld the government's construction of the statute, that the word "indecent" is limited to "obscene" material. The court found that the right to communicate indecent material with intent to annoy someone over the Internet is constitutionally protected, which was ApolloMedia's primary goal. The court stopped short, however of declaring the statute unconstitutional, choosing instead to interpret its meaning narrowly. Obscenity is not constitutionally protected at all.

"I have mixed feelings about this ruling," said Clinton D. Fein, president of ApolloMedia Corporation. "I concur with the dissenting opinion that the Internet is too crucial for our future to be governed by criminal legislation that is numbingly confusing to the average person. I am relieved that the government cannot prosecute for the content we've published to date, and for which the Justice Department had reserved the right to do following a ruling. Right now, Kenn Starr should kiss my ass."

"The court should have squarely ruled the law unconstitutional", said well known First Amendment attorney William Bennett Turner of Rogers Joseph O'Donnell & Quinn, one of the experts representing ApolloMedia. "The government's interpretation of the law was tortured, but an easy way out for the court. Still, it's good to have the court officially say that indecent speech cannot be made criminal on the Internet"

"The ruling vindicates ApolloMedia in bringing this action because it demonstrates that the three judges and the government all agree that the words that Congress used do not prohibit indecent communications with an intent to annoy,"said Michael Traynor of Cooley Godward LLP, another of the First Amendment experts representing ApolloMedia. "A major goal of the lawsuit was therefore achieved."

The critically acclaimed and highly controversial ( web site has evoked global reactions from Yugoslavia to the West Bank for its unapologetic and hard-hitting, in-your-face approach to political and social issues, and scathing criticism of the media. The site also allows visitors to the to send anonymous email messages or digital postcards to politicians and public figures that could be considered "indecent" with an "intent" to "annoy". They can also participate in unmediated and unfiltered threaded discussions ranging from gun control to abortion and the military. Under the ruling, none of these communications can be prosecuted.

The court's decision is appealable directly to the Supreme Court. ApolloMedia has not decided whether they will challenge the ruling.

ApolloMedia is being represented by William Bennett Turner of Rogers, Joseph, O'Donnell & Quinn and Michael Traynor and Tsan Merritt-Poree of Cooley Godward LLP.

Additional information about the lawsuit and associated documents can be found at


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