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U.S. court protects 'annoying' online speech

September 29, 1998
Web posted at: 10:30 AM EDT

by Elinor Mills


(IDG) -- A U.S. court has protected a controversial Web site's right to send over the Internet "indecent" material that is designed to annoy but stopped short of declaring unconstitutional the Communications Decency Act (CDA), which prohibits such transmissions.

The three-judge panel of the U. S. District Court in San Francisco announced the ruling Thursday, nearly a year after hearing the case, which was filed in January 1997 by ApolloMedia at the same time the company launched its Web site.

The lawsuit challenged the constitutionality of the CDA, signed into law in February 1996, which made communication of anything "indecent" with the intent to "annoy" a felony punishable by a fine and as much as two years' imprisonment, as well as criminalized other types of "obscene" transmissions. The U.S. Supreme Court in June 1997 declared a portion of the CDA dealing with sending "indecent" transmissions to minors unconstitutionally vague, but left untouched the provision dealing with annoying communications, among other sections.

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In its divided ruling, the court ruled that indecent, annoying online material is protected under the U.S. Constitution, but then refused to strike down the statute, ApolloMedia said in a statement. Two of the judges instead agreed with the government's definition that "indecent" material is "obscene" material, which is not protected under the Constitution, the company said.

ApolloMedia can appeal to the Supreme Court. But Clinton Fein, president of ApolloMedia and editor and publisher of, said Friday that he doesn't know whether he will appeal or not.

"It's not the most intelligent ruling I've ever seen," Fein said. "I think it was a bit cowardly, but we were able to achieve what we were seeking" -- to protect from risk of prosecution.

"As the dissenting judge said, the rules should be clearly defined," Fein said. The country's standards for "obscenity" and "indecency" are 40 years old and unfit to be applied to the new medium that is the Internet, he added.

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.

"If ever a document would be considered indecent in some communities and certainly annoying, it's the Starr report," Fein said. publishes opinion pieces that contain profanity, provides users an opportunity to send anonymous electronic postcards and e-mails, and offers a threaded message board for expressing opinions.

Elinor Mills is a San Francisco correspondent for the IDG News Service, an InfoWorld affiliate.

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