April 21, 1999 Web posted at: 11:34 a.m. EDT (1534 GMT) by Elinor Mills

From...

(IDG) -- The U.S. Supreme Court on Monday refused a Web site owner's request to knock out the remaining teeth in the Communications Decency Act (CDA), which criminalizes communication of "indecent" material with the intent to annoy.

The high court did not issue an opinion, but merely affirmed last year's ruling by a U.S. District Court, which said that indecent, annoying online material is protected under the U.S. constitution. The lower court refused to declare the statute unconstitutional, however, with two of the three judges on the panel agreeing with the government's definition that "indecent" material is "obscene" material, which is not protected by the First Amendment to the U.S. Constitution.

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This leaves things murkier than ever for Clinton Fein, president of ApolloMedia and owner and publisher of Annoy.com.

"They opened up a new loophole in obscenity law that has never existed before," Fein said of the district court judges whose ruling was upheld.

The lower court judges suggested that lawmakers really meant "obscene" when they banned "indecent" communication with the intent to be "annoying," however "obscene" communications are not constitutionally protected, thus the "annoying intent" provision is irrelevant in Fein's opinion.

Fein wonders if the interpretation of the "annoying" provision and the rulings mean that a distinction will be made between people who agree to receive obscene communications and those who don't agree. Either way, Fein could still end up in hot water. Annoy.com publishes opinion pieces that contain profanity, provides users an opportunity to send anonymous electronic postcards and e-mail messages, and offers a threaded message board for expressing opinions.

Fein filed his lawsuit challenging the constitutionality of the CDA in January 1997 and appealed to the Supreme Court after the district court in San Francisco issued its mixed ruling.

The CDA, signed into law in February 1996, made communication of anything "indecent" with the intent to "annoy" a felony punishable by a fine and as many as two years imprisonment, and also 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.