Annoying Position

"We all knew at the time it was passed that the Communications Decency Act was unconstitutional," an anonymous administration official confided to The New York Times last June, less than two weeks before the Supreme Court unanimously overturned key portions of the law. "This was purely politics. How could you be against a bill limiting the display of pornography to children?"

Especially in an election year. President Clinton had signed the CDA, which banned "indecent" electronic communication that might be seen by minors, and his Justice Department had vigorously defended it against the inevitable First Amendment challenge. Yet here was a "senior government official," even before the case was decided, conceding that the law violated the Constitution and that Clinton knew it.

In fact, the administration had developed a new Internet policy, to be announced after the Supreme Court's ruling in Reno v. ACLU, that condemned the sort of censorship it was still officially supporting. Said one critic, "To come in right after the Supreme Court decides the issue and say we didn't really mean what we said up to now–I can't imagine anything that would be seen as more of a waffle than that."

I can. The administration has reached new heights of disingenuousness in ApolloMedia v. Reno, a case that was heard a few weeks ago by a special three-judge panel in San Francisco. The lawsuit challenges a provision of the CDA that the Supreme Court did not address, one that makes it a felony to transmit "indecent" material "with intent to annoy…another person."

ApolloMedia's annoy.com seems designed to test that provision–because it was. The San Francisco-based Web site producer was already working on this "meeting place for the uninhibited" when Congress passed the CDA in early 1996. But "the law certainly had an impact on the tone and direction it took," says ApolloMedia President Clinton D. Fein.

In annoy.com's "heckle" section, you can read a rant about a controversial issue, then complete a fill-in-the-blank e-mail message to someone mentioned in the piece. Click over to "censure," and you can send rude electronic postcards to Newt Gingrich, Dianne Feinstein, Jesse Helms, or Janet Reno. The site also features ad parodies, press criticism, a newsgroup, and a weekly column mocking the comments of public figures.

"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. The problem is that no one really knows where that is.

Borrowing language from broadcast regulators, the CDA targets "communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." It's not clear what "context" is relevant, who decides what's "offensive," or which "community standards" apply–especially in a decentralized, borderless medium like the Internet.

One thing is clear: Indecency is not the same thing as obscenity. The Supreme Court says obscene works–those "which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value"–are not protected by the First Amendment.

When Congress passed the CDA, transmitting obscenity by computer was already illegal under federal law. Common sense, statements by the bill's sponsors, and the plain language of the statute indicate that the CDA was meant to cover a much broader category of speech. This is the interpretation the Clinton administration urged, and the Supreme Court adopted, in Reno v. ACLU.

Yet in ApolloMedia v. Reno, the Justice Department is arguing that when Congress prohibited "obscene, lewd, lascivious, filthy, or indecent" communications intended to annoy, it was merely reiterating the existing ban on obscenity. As ApolloMedia attorney Michael Traynor puts it, "They are essentially saying, 'Trust us–we won't prosecute.' "

But that assurance is not binding, and ApolloMedia is understandably concerned that some prosecutors might take the law at face value. As Traynor and co-counsel William Bennett Turner noted in support of their request for an injunction, "The government's entire Opposition to the motion is that Congress enacted a statute that does not mean what it says." It must have been written in Clintonese.