Summary

Despite the Supreme Court’s decision in Reno v. ACLU striking down a portion of the CDA prohibiting the knowing transmission of indecent -- as opposed to obscene -- messages to minors, the Apollomedia court did not strike the phrase "indecent" from a CDA provision criminalizing obscene and indecent communications made with the intent to annoy. The court let the provision stand, but limited its’ reach to obscene communications which are not protected by the First Amendment.

Analysis

In Apollomedia, a majority of a three-judge panel of the United States District Court for the District of Northern California was also confronted with a criminal provision of the CDA which prohibited, among other things, indecent communications made with an intent to annoy. Despite the Supreme Court’s decision in Reno v. ACLU striking down the provision’s prohibition on the knowing transmission of indecent -- as opposed to obscene -- messages to minors, the Appollomedia court did not strike the phrase "indecent" from the provision before it. Rather, the court let the language of the statute stand, but interpreted it to limit the provision’s reach to obscene communications which are not protected by the First Amendment.

The plaintiff, Apollomedia, a company devoted entirely to computer-mediated communication, maintains a web site entitled annoy.com through which Apollomedia and visitors to the site communicate strong views using expressions which Apollomedia claimed may be considered indecent in some communities. The site enables visitors to peruse various visual images and articles containing provocative positions on various issues, send anonymous e-mail to public officials, send electronic postcards, and view and add messages to an uncensored threaded message board.

Although the court delayed its decision until the Supreme Court decided Reno v. ACLU, in reaching its decision, the majority scarcely mentioned that case. Rather, it relied on a series of non-Net Supreme Court cases which construed a string of words similar to "obscene, lewd, lascivious, filthy or indecent" in statutes addressing print media and film merely to prohibit obscenity. The court sought to distinguish more recent Supreme Court cases in which the Court held that the term "indecent" in a string of words bore a distinct meaning from obscene despite its coupling with obscene in the string. The court also relied on the legislative history of the CDA to establish that Congress did not intend for the term "indecent" in this provision to have a meaning distinct from "obscene."

The court concluded that the provision in question prohibited nothing more than unprotected obscene communications. Because such a reading of the provision did not violate the First Amendment, the court refused to strike the provision. Thus, it remains in force although the court’s actions in effect read the words "lewd," "lascivious," "filthy" and "indecent" out of the provision, and remains as originally drafted on the statute books.

One member of the three-judge panel dissented. While she agreed that the provision in question could constitutionally prevent the transmission of obscene communications over the Net, she disagreed that the statute as drafted prohibited only obscene communications, and not indecent communications as well. Like the Reno v. ACLU court, the dissent was sensitive to the impact such a decision could have on the Net: "This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are." Just as the Supreme Court had done in Reno v. ACLU, the dissent would have stricken the words "or indecent" from the provision, observing that the import of Reno v. ACLU is that a statute criminalizing indecent speech on the Net cannot survive a First Amendment challenge unless it is carefully tailored to advance a compelling interest such as protecting children from harmful materials.

The dissent also opined that the provision might run afoul of the Fifth Amendment because a Net user of common intelligence would necessarily have to guess at the meaning of a statute that says it prohibits indecent speech but does not. Indeed, the court noted, the tens of millions of daily users of the Net cannot be expected to know that the words of the statute do not mean what they say and the government will not enforce them.

Apollomedia appealed the decision to the Supreme Court, which summarily affirmed the lower court on April 19, 1999.