Annoy.com is nothing if not indecent - and annoying. Just look at the name.
The site's founder, who last January sued Attorney General Janet Reno over a relatively obscure provision of the Communications Decency Act, doesn't dispute the characterization. But whether the site criminally violates the law - and whether the provision is constitutional - are questions that Annoy.com founder Clinton Fein wants settled, and quickly. On Monday, Fein's attorneys may have convinced a special three-judge US District Court tribunal in San Francisco of the need to do so.
Justice Department attorney Felicia Chambers tried to sidestep the constitutionality issue during the hearing, arguing that because the government has no intention of prosecuting Annoy.com, the questions raised in ApolloMedia v. Reno are moot.
"We are not really arguing about anything," Chambers told judges Maxine Chesney, Susan Illston, and Michael Hawkins. "There's no case or controversy."
Bunk, says Fein. "The government came into court and basically said, 'Look, we aren't going to prosecute you, so you have nothing to worry about. Trust us,'" he said. "But since when are we supposed to trust the government to give us adequate free-speech protections?"
The provision at hand is 47 United States Code 223 (a)(1)(A), unchallenged in the successful appeal to the law's central indecency provisions: "Whoever in interstate or foreign communications by means of a telecommunications device knowingly makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person ... shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."
In a recent brief filed in the case, Justice Department attorneys conflated the term "obscene" - which has a relatively concrete legal definition and a long history of limited First Amendment protection - with the legally meaningless term "indecent." By collapsing the two definitions, government attorneys could then argue that the prohibition is "wholly consistent with the First Amendment" and that ApolloMedia's case is without merit.
"The government is trying to argue that in this section of the CDA, indecency is the same thing as obscenity," says Fein. "And they're trying to have the case dismissed so they don't have to clarify the law's meaning in writing."
The government's attempt to conflate the two terms no doubt stems from the Supreme Court's decision last summer to overturn CDA provisions that criminalized indecent online speech directed at minors. While the first indecency statute was successfully challenged by a massive and broad-based coalition of civil libertarians, ApolloMedia v. Reno represents the first time the CDA's "other" indecency statute has been challenged.
To date, the suit has gained little support from the broader civil-liberties community. Fein, who created Annoy.com, a provocative site that offers users the chance to anonymously email lewd postcards goading politicians about policy issues ranging from abortion to gun control, has stood alone in challenging the 47 USC 223 (a)(1)(A).
Still, said Michael Traynor, who along with William Bennett Turner is representing Fein, if the case goes beyond the district court level, it may attract more support.
"At this point, it's at a relatively low level," he said. "If we move forward to the Supreme Court, I imagine we'll be hearing a lot more from free-speech advocates."
But whether the ApolloMedia case wends its way onto the Supreme Court docket, Fein remains cautiously optimistic about his prospects. The court decided Monday that any injunction it might grant against the government will be permanent, not temporary.
Moreover, Chesney, Illston, and Hawkins seemed wary of accepting the government's arguments about equating the words "indecent" and "obscene."
"The judges kept asking the government lawyers how someone like ApolloMedia is supposed to know when indecent speech counts as obscene speech, and when they should worry about whether or not the government will prosecute them for violating the statute," said Fein.
