The publishers of the seething commentary site, Annoy.com, will face the government Monday in their case to kill a section of the Communications Decency Act that is still alive despite the Supreme Court's rejection of the overall law as unconstitutional earlier this year.
On January 30, ApolloMedia Corporation filed a lawsuit challenging a provision in the CDA that made it a felony to use a telecommunications device to knowingly transmit any "indecent" comment or image "with intent to annoy."
Annoy.com's opinion pieces are often laced with obscenity and posted with the intent to make people cringe or turn red-faced with anger. The site also encourages visitors to send electronic postcards such as "Pornography Is Good For You" to President Clinton and to Sen. Jesse Helms (R-North Carolina).
There is no doubt some think the site lives up to its name. But it's unclear whether Annoy.com's users and publishers--or any emailer, for that matter--are committing a federal crime when they use the Net to speak indecently while trying to get a rise out of other surfers.
This summer, the Supreme Court overturned two provisions in the CDA that made it a felony to transmit or display indecent material to anyone under the age of 18.
But the term "indecent" is still present in the section of the law ApolloMedia is fighting in its suit. The makers of Annoy.com will argue before a three-judge U.S. District Court panel in San Francisco Monday that the CDA's indecent and annoying speech provisions are also unconstitutional.
"It is our constitutional right to annoy politicians and public figures that we ourselves are annoyed by," Clinton Fein, editor and publisher of Annoy.com, wrote in an email to CNET's NEWS.COM.
"The original challenge to the CDA had to do with communications to minors. The provision we're challenging deals with communications between and among adults," Fein added today in an interview. "This provision is a complete threat to anyone who transmits information over the Internet."
Fein contended, for example, that somebody who sends an email supporting abortion rights to a recipient who considers talk of abortion indecent and offensive could be sued under the law.
Those who successfully argued against the CDA's famous provision regarding the online transmission of indecency to minors say ApolloMedia's case is the next logical step in defeating all parts of the law that may threaten free speech on the Net.
"We wanted to challenge the section that criminalized the mere act of posting indecent material online, without the regard to intent. It was a strategic decision on our part," said David Sobel, legal counsel for the Electronic Privacy Information Center, which helped overturn the minors statute in the CDA.
"This company is uniquely situated to raise this challenge because its entire mission is to annoy," he added. "They have a strong case."
Other legal experts agree on grounds that the Supreme Court has ruled in past cases regarding hate speech, for example, that expressions can't be regulated based on their content alone.
"The argument this company is going to make is that this law is getting at the substance of the message--that it's annoying," said William Banks, a professor of constitutional law at Syracuse University's College of Law. "They have a fair chance based on the idea that the statute is regulating the content of the message or viewpoint of the speaker."
Although the law prohibits "communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person," ApolloMedia's case is narrowing in on the indecent and annoy provisions, which may also increase their chances for winning, Banks added.
Shifting from its stance in arguing for the CDA before the Supreme Court, the government will likely contend that the indecency provision doesn't stand alone and that annoying material must also be obscene, something that already has been defined by the high court in past decisions. The Justice Department also stated in its opposition brief to ApolloMedia's challenge that the provision was designed to simply update a 1968 obscene phone call law to include the Net and other telecommunications devices.