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ApolloMedia v. Reno: Declaration of Clinton Fein

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O'Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff






JANET RENO, Attorney General of
the United States,


Case No.


(Three-Judge Court, 28 U.S.C. §2284)

CLINTON DEAN FEIN declares as follows:

1. I am the President and co-founder of ApolloMedia Corporation, the plaintiff in this action. I make this declaration in support of our motion for a preliminary injunction enjoining the enforcement of 47 U.S.C. §§223(a)(1)(A)(ii) and (a)(2), as amended by the Communications Decency Act of 1996.

2. ApolloMedia is a Delaware corporation formed in 1994. Its principal place of business is in San Francisco, California. ApolloMedia is a multimedia technology company whose business is entirely devoted to computer-mediated communications. We provide consulting services, design, develop, construct and implement Internet and database technologies, including sites on the World Wide Web. Additionally, we license customized network solutions for the management and delivery of information using telecommunications. We also write, develop and produce multimedia “content” for corporate, educational and entertainment purposes. We use computers, modems and telephone lines to communicate our own content as well as content published by our clients and web site visitors.

3. Our web sites and some of our clients' web sites often communicate strong positions using expression that may be considered "indecent" by some people in some communities. Specifically, our web site entitled “annoy.com” (http://www.annoy.com), among other things, contains a “heckle” section that enables visitors to construct and send email messages, anonymously, to various public officials and public figures, as well as other sections that transmit views on controversial matters. Our online databases contain material of social or political value, some of which is sexually explicit or uses vulgar language. We communicate, and “knowingly permit” our clients and visitors to our sites to communicate, material that may be considered “indecent” in some communities.

4. ApolloMedia, its clients and its site visitors wish freely to be able to criticize public officials and public figures by using whatever language or imagery seems to them appropriate to the occasion and, whenever they wish, to “annoy” such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions. For example, some of us wish to criticize President Clinton, Speaker Newt Gingrich, Senators Dianne Feinstein, James Exon and Jesse Helms, former Congressman Robert Dornan, Ralph Reed of the Christian Coalition, California Governor Pete Wilson, Justices of the Supreme Court, and others, using language that they may consider “indecent, with the intent to annoy” them, because of their role in proposing, enacting and approving the Communications Decency Act or because of their role or position in other public measures or debates with which we vigorously disagree.

5. Our “annoy.com” web site presents visitors with a choice of several topical issues in which they might be interested. A visitor to the site is immediately presented with a collage of animated graphics that flash a combination of words and images that may be considered “indecent” by some people in some communities. The issues currently on the site include masturbation, censorship, health care, marriage, the environment and gays in the military, with new ones added on a weekly basis. A visitor selects an issue of interest and then “clicks” on a button to see an article on the issue chosen. ApolloMedia commissions articles from freelance authors, who are encouraged to take strong, provocative positions. Each article mentions various public officials or public figures who are involved in the particular issue. A visitor, by selecting from a “drop down menu” offering several options, can compose an anonymous email message to persons named in the article. Each article includes about four persons to whom messages may be sent. Some of the options contain material that may be considered “indecent” in some communities. When the message is completed, the visitor sends it to the person selected with a mouse click. Visitors to this section are not required to register or provide any identifying information. Recipients, of course, may choose whether to read any message sent to them, just as with any other email.

6. The “annoy.com” site also includes a “gibe” section, which is a threaded message board. This means that a visitor can read all previous messages and add his or her own. Visitors may leave messages concerning particular issues and add other issues of concern to them. In their messages, visitors can create hypertext links to other documents or web sites. While a visitor may read any messages, in order to post messages in the “gibe” section, visitors must register with their email addresses and may create a “user name” for anonymity but no other identifying information is required. We do not censor the messages, or the linked materials, which may take issue with other messages in strong (even “indecent”) terms.

7. The “annoy.com” web site also includes a “censure” section, which allows visitors to send a digital postcard via the Internet. A visitor selects a card from numerous options, enters in the email address of the recipient, the text of the message, and his or her own name and email address. Once the visitor submits the information, an automatic email is generated and sent to the recipient informing him or her of a pending postcard at an automatically generated url (uniform relay locator) on the “annoy.com” web site. The recipient can then actively undertake to receive the card by entering the url on a web browser, which will transmit the postcard that has been sent.

8. Another section, “CDA” (Created and Designed to Annoy), updates visitors to the site if there is new content, and itself contains content that some people in some communities may consider “indecent” or “annoying.” For instance, the “Weekly Irrit8" page contains quotes by public officials or public persons that may be construed as “annoying,” including a commentary, sometimes accompanied by graphics, that may be considered “indecent” or “annoying” by some people in some communities. These are updated on a weekly basis. “Media Muck,” another weekly component of this section, criticizes and mocks media coverage of national events and people ranging from print to broadcast, the Internet and web sites in a manner that some people in some communities might consider “indecent” or “annoying.” Another component of this section, “Most Annoying Ad Campaign,” is a monthly parody of the most annoying national advertising campaign. These parodies also may be considered “indecent” or “annoying” by some people in some communities.

9. Attached are true copies of representative pages from the "annoy.com" site. Exhibit A is the home page, the first page a visitor sees. Exhibit B shows the images and words that flash quickly on the opening page. Exhibit C includes a sample article and a sample completed email message reflecting the choices of the visitor to the site. Exhibit D are other sample email messages reflecting the choices of the visitor. Exhibit E includes another sample article and completed email message. Exhibit F are other sample email messages. Exhibit G is a third sample article and completed email message. Exhibit H are other sample email messages. Exhibit I is the “censure” page with sample “postcards.” Exhibit J is the “gibe” page described in paragraph 6 above. Exhibit K is a page devoted to the CDA and to this case. Exhibit L is the “Weekly Irrit8" page described in paragraph 8 above. Exhibit M is the “Most Annoying Ad Campaign” parody also described in paragraph 8.

10. We also maintain a web site called "xq.com" (http://www.xq.com), which we make available to clients for their use. For example, we currently have a site there for "Greg and Matt's Wedding Web Site,” a web site created for a gay couple who had a wedding ceremony. The site includes photographs of them and allows visitors to leave messages for them. The messages can include hypertext links to other documents and sites. Some of the messages or links may include material considered "indecent" by some people in some communities, and I am aware that the very concept of gay marriage is considered "indecent" to some people in some communities. "Xq.com" also has other sites, some used by non-profit organizations including the Service Members Legal Defense Network (assisting military service members investigated concerning homosexuality and sexual harassment), and the Hawaii Equal Rights Marriage Project (attempting to secure the right to marriage for gay and lesbian couples).

11. I do not understand what "indecent" means in §223(a)(1)(A)(ii). In my experience, it can mean very different things to different people in different localities, and I am unclear when we may violate the law with any of the content that we or our clients or visitors communicate online. Even if "indecent" means "patently offensive" and has to do with sexual or excretory activities, I still am unclear when we may step over the invisible line and become criminals. I also am unclear whether or when any of the content on our sites or the communications from our clients or visitors may be considered "annoying" to others, including the recipients of the messages composed on "annoy.com." Even if I were clear on whether the precise content currently available on our web sites is or is not “indecent” or “annoying,” new material is continuously being added, both by us and by our clients and visitors, so it is impossible to be clear when we may be deemed to violate the law. Several prospective advertisers have asked about legal risks in being associated with our “annoy.com” site, and I have been unable to give them any firm assurances. The only practical insurance against prosecution (which would be ruinously expensive for us even if we ultimately were acquitted) is to stay away completely from sexual subjects (including subjects of great interest to sexual minorities and society in general).

12. Finally, on a personal note, it is important for me to state for the record that I was born and raised in South Africa during Apartheid. My desire to be a journalist was thwarted by the repressive censorship, as I lived in a country where one could be imprisoned for quoting Nelson Mandela (who at the time was in prison for revolutionary activities). I underwent the often difficult process of immigration, becoming an American citizen in 1994, partly because of the First Amendment's promise of free speech. With the enactment of the Communications Decency Act, that affects me daily in my professional life, I feel defrauded. I would have freer speech now in South Africa than I do under the CDA. Upon being naturalized as an American, I took an oath to protect the principles of the Constitution from enemies foreign and domestic. A strong motivation for my wanting to bring this lawsuit is to fulfill that promise and have America live up to its promise of freedom.

I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California, on January 30, 1997.




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