A three-judge panel hearing a challenge to surviving sections of the Communications Decency Act appeared sympathetic to plaintiffs arguing that the provision is unconstitutional.
The hearing in the case, filed by Internet publisher Annoy.com, comes four months after the U.S. Supreme Court ruled that key portions of the CDA were unconstitutional. The unanimous decision threw out part of the law that provided stiff penalties to those who make indecent materials available to minors over the Internet. But other provisions of the act--including one that makes it a federal offense to transmit "indecent" material "with intent to annoy"--remains valid.
Adopting a long line of court rulings, Annoy.com is arguing that any law targeting indecent speech violates First Amendment guarantees. Government attorneys in turn argue that the surviving portions of the CDA merely bring laws barring harassment into the digital age. They also insist that, following the Supreme Court's ruling, they will apply the law only to harassment that is obscene, not harassment that is indecent.
Two of the three judges hearing the case, however, appeared skeptical of the government's argument.
U.S. District Judge Susan Illston asked the government attorney arguing the case today: "How is an Internet user supposed to know the difference" between the written meaning of the law and the government's interpretation of it?
Illston also wanted to know if it was possible for the government to reinterpret the law so that it would again cover indecency. Felicia Chambers, the attorney arguing the government's case, replied that such a change was possible but not likely.
Federal appeals Judge Michael Hawkins, also sounded skeptical of the government's argument, saying that its promises provide no guarantees. "Even if a U.S. attorney violated these guidelines [by prosecuting for indecency], the defendant would have no rights," Hawkins said.
In the hearing, attorneys for Annoy.com sought a permanent injunction barring enforcement of the "annoy" section of the CDA. Absent that, they are looking for a declaration from the court that the law applies only to obscene speech designed to annoy or harass, and not to indecent speech. In a separate motion, the government asked that the case be dismissed in light of its pronouncement that it will interpret of the law narrowly.
"We have taken a position that [the law] is limited to obscenity," Chambers said, adding that the Annoy.com was exaggerating its complaints that the law will have a chilling effect on its inflammatory online commentary. "Plaintiff is actively engaged in the speech that they complain will get them in trouble."
A ruling in the case could be issued within weeks or months.
After the hearing, attorneys representing Annoy.com said they were hopeful that the specially appointed panel will rule in favor of Annoy.com. "They will feel some obligation, I hope, to show indecent speech can't be prosecuted," said William Turner, an attorney at Rogers, Joseph, O'Donnell, & Quinn in San Francisco.
Michael Traynor, another attorney for Annoy.com, added that despite government assurances that it will not prosecute indecency, a court order is necessary.
He noted that, despite the government's public pronouncement that it would apply the law only to online harassment that is obscene, it expressly refused to sign a settlement in the case imposing such a condition. Without such an agreement, he said government promises were meaningless.
"The Justice Department manual says that it can't be bound by the statements of its attorneys," said Traynor, a lawyer at Cooley Godward in Palo Alto, California. "The government says, 'Trust me.' We say, 'We want a court order.'"