“…provocative political commentary…complex federal case… blistering material.”
— Pamela Mendels, New York Times
The publishers of the appropriately named annoy.com Web site filed suit on Thursday In Federal district court in San Francisco against Attorney General Janet Reno, arguing that a little-known provision of the Communications Decency Act would criminalize online communication that is both “indecent” and meant to “annoy” the recipient of the message.
The one-year-old law, lawyers say, could unjustly punish indelicate or blunt opinion mongers if they send their messages by a telecommunications device. The law calls for hefty fines and up to two years in a federal prison.
“It is a historic right of Americans to speak their minds bluntly and coarsely and, if necessary, with the view of annoying people,” said J. Michael Traynor, a lawyer in the case. “Sometimes politicians don’t respond to a one-time quiet message. Sometimes people feel they need to get in their face a little bit.”
A company that allows people to anonymously send profanity-filled e-mail messages to government officials wants a panel of federal judges to issue an injunction against part of the 1996 Communications Decency Act.
Lawyers for the Delaware-based company, ApolloMedia, which runs the “annoy.com” Internet site, urged the panel of two federal trial judges and one appellate judge to prohibit enforcement of the law.
The panel took no immediate action following an hourlong hearing Monday.
A portion of the act makes it a felony to transmit language that is “lewd, lascivious, filthy or indecent, with intent to annoy, abuse threaten or harass another person.”
The plaintiff’s lawyer, William Turner, claimed the statute is unconstitutional and vague. Since the “annoy.com” Web site includes an interactive feature that enables Internet users to send nude images and profanity-laced e-mail to government officials, managers of the company “take a deep breath” every time their Internet site is used, he said.
ApolloMedia was challenging a portion of the law that sought to bring a federal statute banning harassing or obscene phone calls into the digital age. The provision outlaws the use of a “telecommunications device” to transmit comments that are “obscene, lewd, lascivious, filthy or indecent” when the intent is “to annoy, abuse, threaten or harass another person.”
ApolloMedia did not object to the bans on obscenity, harassment, abuse or threats, but argued that, given its wording, the law would also criminalize online communication that is both “indecent” and meant to “annoy.” Since Annoy.com enables visitors to send unvarnished opinions to political and other figures in the news, the company was concerned that its activities would be banned by the statute.
The company filed suit in United States District Court for the Northern District of California in San Francisco early last year.
In a divided opinion handed down late Wednesday, however, the court refused to issue an injunction blocking the law. Two of the three judges on the special panel said that despite the use of the word “indecent” in the law, the statute really proscribes only obscenity, which, unlike indecent speech, receives no First Amendment protection.
“In light of prior case law and statutory history, it is ‘fairly possible’ to read [the statute] as applying only to ‘obscene’ communications,” Judge Maxine M. Chesney, of the United States District Court, and Judge Michael Daly Hawkins, of the United States Court of Appeals for the Ninth Circuit, wrote. “So construed, the provision would clearly survive constitutional challenge.”
“… a controversial Web site that includes such features as “Heckle” which lets visitors send anonymous (and expletive-filled) e-mail to politicians and other public figures.”
— Thomas Weber, Wall Street Journal
“On Wednesday, a three-judge federal panel handed down a divided ruling to ApolloMedia. The court found that the right to communicate indecent material with intent to annoy over the Internet is constitutionally protected. “
–– Reuters
“Ironically, Fein noted that the ruling protects Ken Starr, the independent prosecutor whose sexually explicit allegations of U.S. President Clinton’s misconduct with a White House intern have been posted on the Internet. “
“…eerily reminiscent of A Clockwork Orange — images of political leaders alternate with pornographic shots of body parts, racial slurs, American flags, flowers, and profanity. The visual barrage (probably) won’t send you into seizures like all those cartoon-loving Japanese kids, but it might irritate you enough to make you stick around and count how many clicks it takes to be offended.”
— Stephanie Saulmon, New York Magazine
“The more umbrageous among us may not click past Annoy’s home page, primed as it is for publicity with repeat-looped images of a wide range of uncovered private parts and brazen racial epithets. That would be a shame. The site is worthy of exploration for its irreverent use of interactivity, and there are also other kinds of provocative material here — in particular, cogent essays on media and social issues that are as edgy as anything on the Internet.”
— Web Citations, The Atlantic Monthly
“On Wednesday, a three-judge federal panel handed down a divided ruling to ApolloMedia. The court found that the right to communicate indecent material with intent to annoy over the Internet is constitutionally protected.”
— Heidi Kriz Wired News
A quick glance at the main home page of annoy.com shows that the the company is reveling in its victory, with an assortment of terms and photographs that would likely annoy most people, and might possibly induce sudden-death embolisms in others.”
— Robert MacMillan, Newsbytes News Network
“Dirty Dancing: A federal court panel agreed with the Clinton administration that a law banning email sent with an “intent ot annoy” applies only to obscenity and not to “indecent” material. The ruling pleased Clinton Fein, Web site developer.”
— The Hollywood Reporter
“Attorney General Janet Reno said she didn’t intend to use the law against the type of material sent on sites like “annoy.com.” But Fein said the Justice Department refused to make a written promise, which in any event wouldn’t have been binding on future administrations. He said the ruling fills that gap.”
— San Jose Mercury News
“If ‘flaming’ is the favorite sport of the online world, annoy.com is a high-octane flame-thrower on a mission.…offering an online service that delivers scathing, anonymous postcards to public figures, and dishes up corrosive commentary and graphics hammering every hot-button issue from abortion to Zionism.”
“Watch out Newt, Bill and all the other politicos ripe for a verbal tomato in the kisser. The folks at a new Web site are practicing their pitches. And they’re going to court to protect their rights to ready, aim and hit the send button.”
— Pamela Mendels, The New York Times
“Dang-it.com: Annoy.com, a Web site design to irk backers of the Communications Decency Act, lost a First Amendment court challenge last week, thanks to a part of that act which was not struck down as unconstitutional. The court ruled that Annoy.com was protected under the First Amendment for “indecent” speech, but not for anything deemed “obscene” under California law.”
— The Filter: Berkman Center for Internet & Society at Harvard Law School
“One of the site’s features was a series of e-mail messages that could be sent to government and other public officials…But the ruling did create a potential set of legal conflicts with the 1997 Supreme Court CDA decision. “
— John Borland, Tech Web, CMP Media
“The publishers of the scorching commentary site Annoy.com say they can keep raising eyebrows without fear of prosecution under a federal court ruling today. “
— Courtney Macavinta CNET
“Harmful to Minors:”It is our constitutional right to annoy politicians and public figures that we ourselves are annoyed by.” -Clinton Fein, publisher of Annoy.com, a Web site that makes its name by mailing electronic postcards with slogans such as, ‘Pornography is good for you.’ “
— Computer Currents
“‘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 annoy.com 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.’ – Clinton D. Fein, president of ApolloMedia Corporation, publishers of Annoy.com”
— The Filter: Berkman Center for Internet & Society at Harvard Law School
“Annoy.com revels in vulgarity, including scatological references, pictures of genitals, and George Carlin’s “seven dirty words.” Which would seem to put it somewhere in the vicinity of that mysterious territory known as indecency.”
— Jacob Sullum, Reason Magazine
“The US Supreme Court decision legitimizing free speech online was not quite a death blow to the Communications Decency Act (CDA). The Supreme Court struck down just one provision of that legislation prohibiting “communication which is… indecent, with intent to annoy….” The backers of, appropriately, Annoy.com are going after this part of the Act, arguing that Americans have a constitutional right to send “indecent” messages to “annoy” others. Oddly, they have a good case – precedent says expressions of opinion can’t be regulated based solely on content.”
— Netsurfer Digest
“The ransom-letter layout and labelmaker fonts on annoy.com are like a call to battle stations, but many of the texts – including the polymorphously perturbing “annoy libs,” with a menu of targets including Senator Jesse Helms – are as witty as they are angry. “
— Steve Silberman, Hotwired’s Netizen
“Clinton Fein, president of ApolloMedia, says that “in the wake of the issues raised in the Paula Jones sexual harassment suit and the emergence of the Internet as an increasingly fundamental business tool, it is imperative that we weigh speech issues in the workplace with careful consideration and reasoned analysis.” Fein told free! that “the Aguilar decision, if allowed to stand, will continue to establish a huge chilling effect on speech.”
— David Hudson, Free: The First Amendment Center
“…if simply being annoying were a crime, Pat Robertson would be serving a triple life sentence. At least annoy.com is an equal-opportunity irritant, offering a range of profane and vulgar postcards with something to offend everyone.”
— Jonathan Gregg, Time
“The publishers of annoy.com…have chosen a form of protest that should be illegal…Their web site provides a huge collection of offensive words and images. That, as far as I’m concerned, falls squarely within the limits of free expression. Then, however, they step over a significant line by offering a service by which you can have a vulgar and offensive message sent to any e-mail address.”
— Online with George Cottay
“He is taking risks, however. With every e-mail sent through annoy.com that someone considers ‘indecent’ and ‘annoying’ Fein is committing a felony, punishable by two years in prison and six-figure fines. (The precise penalties are still uncertain.)”
— Phyllis Orrick and Susan Rasky, License to Annoy, Weekly World Web & SF Weekly
“These cards are not for the faint of heart.
Besides space on the cards for personalized messages, many also carry profanities and nudity mingled with political themes and carry messages that attack conservative and liberal philosophies and personalities alike.”
— The San Francisco Chronicle
“Annoy.com revels in vulgarity, including scatological references, pictures of genitals, and George Carlin’s “seven dirty words.” Which would seem to put it somewhere in the vicinity of that mysterious territory known as indecency.”
“We deliberately explore the limits of what is acceptable,” says Fein. That’s a nice way of putting it. Annoy.com revels in vulgarity, including scatological references, pictures of genitals, and George Carlin’s “seven dirty words.” Which would seem to put it somewhere in the vicinity of that mysterious territory known as indecency. No one really knows where that is, of course–which is one reason the Supreme Court decided the CDA’s child protection provision ran afoul of the First Amendment. ApolloMedia argues that, in light of that decision, the CDA’s ban on annoying indecency, which applies to communication between adults, is unconstitutional on its face.