Obscene To Be Believed - The Fight Behind ApolloMedia v. Reno - Round One

Monday, October 20, 1997

Obscene To Be Believed
The Fight Behind ApolloMedia v. Reno
Round One - Federal Court

by Clinton Fein

On January 30, 1997, we at annoy.com filed a federal court action seeking declaratory and injunctive relief challenging the provisions of the Communications Decency Act (CDA) of 1996 that criminalize any "indecent" computer communication intended to "annoy" another person. While much of the content on annoy.com is deliberately provocative and very often, somewhat crass, it mocks the pretensions and piety of politicians and media alike, and pushes the envelope both from a content and technological perspective. The CDA’s assault on the First Amendment cannot be countered with subtleties. As word about annoy.com spread and participants began expressing themselves in our free-for-all gibe section, the expression, unfettered of course, of many of the postings demonstrated how important it is for us to engage in dialogue, rather than be silenced by fear and irrational technophobia. The less brazen of annoy.com users enjoyed, and continue to enjoy, being able to send anonymous emails to politicians or private digital postcards to friends.

In an order issued the day following ApolloMedia's filing, United States District Judge Maxine M. Chesney stated, "In reviewing a request to convene a three-judge panel, the district court's inquiry is confined to 'determine whether the instant complaint possesses a reasonable degree of legal merit'." She found that ApolloMedia's facial challenge to the Communications Decency Act brought our action within the Acts provisions for convening a three-judge panel. On March 3, 1997 Procter Hug Jr., Chief Judge of the United States Court of Appeals for the Ninth Circuit appointed Michael D. Hawkins (United States Circuit Judge for the Ninth Circuit) and Susan Y. Illston (United States District Judge for the Northern District of California) to sit with Maxine Chesney to hear ApolloMedia Corporation v. Janet Reno.

On April 8, 1997, annoy.com and Janet Reno agreed to halt proceedings, in order to allow the government to attempt to formulate opposition to our claim that would hold an iota of constitutional muster, and at the same time, allow the three appointed judges the opportunity to be guided by the Supreme Court’s decision in Reno v. ACLU - an appeal that the government ultimately lost which dealt with a similar, yet distinct provision of the CDA dealing specifically with communications relating to minors, (and in which ApolloMedia filed an amicus curiae brief). The condition was that the government, Reno or any of her various renegade departments were absolutely prohibited from investigating annoy.com, let alone prosecuting, until our day in court.

On June 20, 1997, the government sent us a set of interrogatories – a series of nosy questions designed to garner information from us that would assist them in their "discovery" in preparation for their defense. Among the documentation requested was a list of names of people who were directly or indirectly participants on annoy.com and questions such as what we believed we had done to violate the CDA provisions in question.

The intrusive tone of the interrogatories, requesting documents that would reveal private information about the users of annoy.com demonstrated quite clearly that the government had ignored the findings of the Supreme Court in Reno v. ACLU. The government’s demands reinforced our assertion that the legislation would allow the government to wield enormous power by eavesdropping on the conversations of private citizens, stifling expression, and threatening the speech-enhancing and commercial potential of the Internet.

Expressing our concerns to the Attorney General, essentially that, given the nature and tone of the interrogatories, answering questions posed could potentially result in self-incrimination, we inquired about immunity for answers to questions we believed would implicate me, and violate my Fifth Amendment self-incrimination protections. The government responded by stating that ApolloMedia could no longer claim Fifth Amendment privilege against self-incrimination. Given that I was to be signatory to the interrogatories, and because I had earlier submitted a declaration discussing the desire of visitors to annoy.com to communicate indecent, annoying messages to public figures, public officials and private persons, the government asserted I had waived my Fifth Amendment privilege. Citing United States v. Patricia Hearst, the government claimed that that the discovery requests were "reasonably related" to the subject matter of my declaration, and therefore, like Patty, I had to respond to the interrogatories. Given some of the content on annoy.com, and our First Amendment challenge, some people of ill-intent or with only a surface understanding of the issues have compared me to Larry Flynt on occasion, but Patty Hearst is a bit of a stretch.

Far from being granted any kind of immunity, the government made it crystal clear that we were bound to comply fully with the discovery requests and said the Fifth Amendment did not apply to us. In our formal response to the interrogatories, we stated that "although couched as formal discovery, these interrogatories and document requests are nonetheless a government investigation, the very sort of enforcement activity that was enjoined in Reno v. ACLU and that should be enjoined here". We proclaimed that the government's inquisition itself clearly violates our First Amendment rights. We refused to provide any names of participants on annoy.com, and refused to speculate as to whether we had violated the provisions of the CDA, since they are to vague and ill-defined for us to make such an assessment. And, of course, why we filed the lawsuit to begin with.

In spite of the increasingly chilling tone of the government’s position, and unwilling to be intimidated by grandstanding, threats and mind-boggling comparisons to terrorists and traitors, we refused to release the names of private users of annoy.com. We have not been asked again.

Irked by our steadfastness, Reno’s counsel requested that we allow the government to go to annoy.com in order to test out some of the technological features. We agreed on the condition that the government provide us with the IP address (a number that uniquely identifies the user) and that they only be able to access pre-defined areas of annoy.com. We never heard back from them!

Once the government realized that we were fighting this battle with weaponry that included sophisticated technology and legal muscle that run rings around Reno’s legal eagles, their tactics took a three hundred and eighty degree turn. The government came up with a brand new theory of the case -- that we don't need to worry about "indecent" communications, only "obscene" ones.

And to this end, the government and court's definition of obscene, is that which is collectively obscene, lewd, lascivious, filthy or indecent. The media coverage of the content on annoy.com, and the conventional understanding of these words demonstrates that there is very little difference among their meanings and definitions. Each of them essentially means the same thing. Indeed, the court did acknowledge that common usage of the words have different shades of meaning, but that the statute has always been taken as aimed at obnoxiously debasing portrayals of sex. Obnoxiously debasing portrayals of sex are only obnoxious insofar as they are offensive or punishable, and in my opinion, the notion of administering punishment for the mere portrayal or depiction of sexuality is more debasing in nature than the simple expression of it.

However, despite Reno’s assurances that we have nothing to worry about, the government submitted the testimony of Howard Schmidt - one of their expert witnesses, the essence of which suggested that indeed, we have plenty to worry about. Howard Schmidt goes by the title of Supervisory Special Agent, Deputy Chief of Computer Crime and Information Warfare for the Air Force Office of Special Investigations (OSI). The OSI undertakes investigations related to criminal and counter-intelligence matters for the United States Air Force and Department of Defense. OSI also assists a range of Federal, State and local law enforcement agencies, such as the Department of Justice, the U.S. Postal Service, the U.S. Secret Service, and other military investigative agencies, in connection with various types of criminal/counter-intelligence investigations. And all this time, silly us, we thought annoy.com was simply an entertaining web site and channel.

The government further indicates that the Supreme Court has held that this string of words ending in "indecent" simply means "obscene", for the last forty years. Forty years ago, society's standards were significantly different to what they are today, and more importantly, we were not capable of communicating with such ease on a global scale with such a vast array of different languages, cultures, religions and societies. To be bound by constructs of forty year-old interpretations, governing a different medium is outrageous. It is equivalent to the FDA simply applying the guidelines governing the intake of barbiturates to new drugs like AZT, even though it's an entirely different drug that is made of different compounds and capable of producing completely different side effects.

In 1973, the Supreme Court attempted to define obscenity in Miller v. California, 413 U.S. 15, 24 (1973), by establishing a three-part test for obscenity: "hard core" sexual material that appeals to the prurient interest; is patently offensive under community standards; and lacks serious literary or other value. Each of the three parts of the Miller test must be met to criminalize even obscene speech. Miller was decided two decades before the Internet emerged. Now, nearly twenty-five years later, the government is still referring to Miller as the defining principle, despite the fact that the three-part test requires that community standards be applied to determine what is offensive. The major flaw with applying Miller to the Internet as a medium is that the community on the Internet is a global one, making it impossible to even define the make up of the community, let alone apply standards to it.

Several members of the Supreme Court have expressed their dissatisfaction with the Miller test even as to obscenity. And of course, the world authority on artistic merit and foreign relations, Senator Jesse Helms declared in the Congressional Record that written "safe sex" educational materials were "obscene." Thus a seductive courting dance of a native African tribe, performed purely for the prurient interest, and regarded as a fundamentally accepted cultural ritual, for instance, might be regarded as not only obscene, but blasphemous by Jesse Helms in North Carolina.

Yet, despite disparity and confusion among legislators, legal authorities and the media, we are to believe and take comfort in the government’s assurances that we have nothing to worry about. Even if we were to attempt, with strong imagination, to apply Miller to a different medium like the Internet, it would be impossible to determine what is and is not permissible by virtue of the fact that there are inadequate laws or guidelines regarding the jurisdictional governance of Internet communications. What may be permissible according to community standards in San Francisco, California may be impermissible in San Diego, California or Calcutta, India.

If I was to ask you to "choose a side" in Afrikaans, the language of a small minority of white South Africans, the translation would be "kies ‘n kant" pronounced "kiss a cunt." Will the audio transmission of anything in Afrikaans be felonious under the CDA? What about someone hailing from Bangkok? Most analysis in the courts and in the media to date has failed to take into account that the Internet is a multilingual, multimedia communications instrument. Filtering devices such as Cyber Patrol cannot interpret visual elements with any degree of consistency, any more than optical character recognition technology can interpret audio, or contextualize language.

Miller also stipulates that obscenity is established if "the work, taken as a whole appeals to the prurient interest" and "depicts in a patently offensive way, sexual conduct, excretory functions, and lewd exhibitions of the genitals." I do not understand why an image word, depiction or expression of anything that is appealing to the prurient interest is obscene, nor upon what such a notion is based other than on some specific religious principles, which in themselves should be separated from the law. (Prurient of course, having the same "shades of meaning" that make it difficult to determine what might be felonious, and therefore easier simply to chill the expression).

I do not understand how or why the covering of a nipple - puzzlingly, female nipples are somehow more offensive than male nipples according to American contemporary community standards - or the penis or vagina detracts from the prurient interest. If a woman’s breasts turn me on, are nipple caps going to quell my desire? If a penis turns me on, will the presence of a G-String quell my desire? Similarly, I do not understand how the image or description of a person engaged in sexual or excretory functions appeals, necessarily, to the prurient interest. Between you and me, the thought of someone taking a shit is not exactly a turn on. To each, their own, sure, but let’s not make blanket assumptions, and let’s not assume further that people are going to uncontrollably orgasm every time they’re exposed to a sexual or excretory depiction, image or sound, and even if they do, that it’s necessarily a threat to civilization as we know it.

How many of you have never played with your genitals or taken a dump? I do not understand why it is not permissible to depict sexual or excretory activity - the most natural and fundamental and base activities of most species - yet it is okay to display, depict and transmit the most hideous, reprehensible, sick, nauseating, ugly, revolting, patently offensive depictions of violence, brutality, degradation and bloodshed. According to this logic, it is a threat to society for children to see other humans engaged in pleasurable acts, making love or ridding their bodies of toxins. But splattered brains from a bullet to the head, violent responses that teach children to approach life’s problems by harming, hurting and destroying one another is acceptable and contributes to our spiritual growth and evolution as a civilized and more enlightened species.

In this context, I am truly baffled as to how we are supposed to interpret obscenity, who it's supposed to protect, what it's supposed to accomplish, and most significantly, how we are supposed to feel relieved by the government’s contention that indecent means obscene.

Nor is it irrelevant that enforcement of this criminal statute inevitably will involve widespread eavesdropping or other participation by government agents and vigilante groups in the online conversations of ordinary citizens. That is, unlike complaint-activated monitoring of public broadcasts by the FCC, enforcement of the CDA necessarily will involve reading, snooping on and recording the electronic communications of unsuspecting and wholly innocent citizens. For example, when a vigilante group tips law enforcement that a certain web site or newsgroup involves the "patently offensive" discussion of abortion, safe sex or erotic literature, Big Brother government will log on and listen to the conversation, recording at will. When a prosecutor thinks he or she can get a conviction in a particular community intolerant of such discussion, the conversation can be downloaded -- with a mouse click -- to that venue. Hundreds of persons' thoughts and ideas will become "evidence" in a criminal prosecution.

With regard to the "intent to annoy" defense of the government, I am even more in the dark as to what the government is stipulating. They submit the "intent" requirement makes Section 223 constitutional by removing a perceived privacy problem, without addressing the fact that the very nature of annoy.com makes it impossible to determine the "intent" of the sender since their communications are anonymous. Further, there is no distinction between what is considered "annoying" versus that that is "abusive threatening or harassing". We are not demanding a constitutional right to threaten politicians and public figures by chasing them through tunnels and killing them in the process. Simply to be able to communicate with them through a medium and in a manner that is generally less dangerous than eating an apple.

My attorneys, William Bennett Turner and Michael Traynor, both of whom I respect and admire deeply, and whose passion for the principles of the First Amendment parallels their legal ingenuity, have provided me with an understanding as to why legally and tactically, it is preferable to proceed step-by-step, seeking in this case a declaratory judgement that the CDA is unconstitutional insofar as it punishes indecent communications with an intent to annoy and by injunctions against enforcement. I should be relieved by the government’s announcement that "indecent" means "obscene" as defined in Miller as it is highly unlikely that I could be prosecuted for obscenity. This means reserving for the present time a challenge to the obscenity provisions of the CDA and the pervasive provisions in other laws, federal and state, against obscenity.

But, if the truth be told, I find little or no guidelines or solace in the distinction between indecency and obscenity. Both definitions remain unconstitutionally vague and inadequate as a standard, particularly one by which to approach a modern and unique medium. Especially one characterized not only by words and images, but also by audio, interactivity and imagination. I continue to feel that the definitions of obscenity are based primarily on Judeo-Christian constructs governing sexuality and morality, and serve no useful or legitimate purpose in protecting anyone from anything. Even if we win this case, which I am confident we will, this battle is far from over. Our First Amendment to the Constitution is still, very much, at stake.