Remembering One of the Original Constitutional Challenges to the CDA
Clinton Fein is South African born artist, writer, activist, and social media strategist, best known for his Torture exhibition—photographic reenactments based on the notorious images from Abu Ghraib prison in Iraq—and his First Amendment victories. Fein resides in San Francisco and Palm Springs.
Back in the heady early days of the Internet, the lack of any sort of legal precedent made it feel like the Wild West. On the Internet, it seemed, there were no rules and anything was okay. Innovation soared, and expression and creativity flourished. Against this backdrop, Congress decided to stick its nose into things. Republicans and Democrats alike were anxious to uphold moral codes of yore. It didn’t matter that they didn’t understand the potential of the new technology or how any of it worked. And so emerged Title V of the Telecommunications Act of 1996, or as it was insidiously known—the Communications Decency Act (CDA). A clumsy, stupid, ill-crafted attempt by congress to update forty year old telecommunications law and apply it to a revolutionary medium. In February 1996, President Bill Clinton signed it.
Back in 1995, I was running a digital content management company ApolloMedia, which had become embroiled in a dispute with the United States Navy over an old 1976 recruiting poster depicting a black Naval Officer for the first time; the office was later discharged for being gay. Journalist Randy Shilts had written a comprehensive history of gays in the military to which we had acquired the electronic rights, and the Navy unsuccessfully attempted to prevent us publishing the poster, claiming the Navy seal was copyrighted.
Many media and technology companies, including Wired Magazine, independent journalists, and organizations like EFF and ACLU, joined forces to fight the constitutionality of the CDA. ApolloMedia, did too, filing an amicus brief in the Supreme Court in Reno v. ACLU. The case galvanized the first huge political moment in the Internet’s nascent history reflecting that there was so much at stake. Massive media coverage ensued.
But amidst the intense focus on Reno v. ACLU, a less noticed provision of the CDA criminalized any “indecent” computer communication intended to “annoy” another person. It wasn’t surprising that it attracted little attention. The clause was hidden among a string of words—“lewd, lascivious, filthy, indecent and obscene” communications intended to “threaten, abuse, annoy or harass” another person.
Before there was Facebook, the notion of prohibiting speech was abhorrent to most Internet users. And while no one wanted to legalize—let alone encourage—the ability to threaten, harass or abuse anyone, the idea that annoying someone with an indecent communication would result in a felony—punishable by two years in prison and a hundred thousand dollar fine—was as frightening as it was unconstitutionally vague.
At the time, ApolloMedia had been developing a politically focused content destination to counter the pretensions of politicians and the media. The “annoy” provision of the CDA represented a significant threat. Seasoned First Amendment professionals, Michael Traynor at Cooley Godward and William Bennett Turner of Rogers, Joseph, O’Donnell & Quinn counseled me, and helped me arrive at the only decision that made sense to me: Fight it.
The coalescence of circumstance resulted in the birth of a legal challenge that would take years and ultimately be determined by the United States Supreme Court. On January 31, 1997, with the depiction of a harmless but unmistakable gesture, Annoy.com launched and ApolloMedia filed ApolloMedia v. Reno, a lawsuit challenging the “annoy” provision of the CDA.
Almost everything on Annoy.com was designed to challenge preconceived notions of decency and annoyance–not for the sake of being obnoxious, but to demonstrate the insanity of the law itself. From the ability to send anonymous communications through postcards and mad-libs, to the unmediated and unfiltered message board/discussion system, the technology itself provided identity management mechanisms that allowed for expression to take place without any fear of repercussions for opinions, or fear of having one’s true identity revealed.
Although the government’s position opposing the lawsuit evolved over time, it ultimately settled on the argument that the legislation was intended to apply to obscene communications only. In essence, that the words “lewd,” “lascivious,” “filthy,” “indecent,” and “obscene” all only meant “obscene.”
Our case was heard by a special three-judge panel which, on September 25, 1998, after deliberating for almost a year, issued a tortured and divided ruling that upheld that government position.
The panel’s ruling prohibiting “obscene” communications—but not simply “indecent” ones—was a relief to a certain extent. “Obscene” here means only prurient and patently offensive communications that lack any literary, political, or other social value. Given that Annoy.com was itself (to a degree) a political act, almost none of the unmediated and unfiltered threaded discussions ranging from gun control to abortion and the military could be construed as obscene.
But at the same time, it was a divided ruling, and applied to the Ninth Circuit. Once again, attempts to use old interpretations to govern a global medium were revealing their inadequacies.
Moreover, enforcement of the statute could have required 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 would involve reading, snooping on and recording the electronic communications of unsuspecting and wholly innocent citizens.
So, I worried, what would happen when a vigilante group tips law enforcement that a certain web site or newsgroup involved the “patently offensive” discussion of abortion, safe sex, or erotic literature?
Big Brother government would 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.
I sought review of that decision in the Supreme Court. But the Supreme Court summarily affirmed the district court without ever hearing argument or full briefing in the case.All this was before September 11, and the insidious Patriot Act that followed. This was before Edward Snowden would reveal that all of the spying I feared was happening anyway. Back then it was normal to think of such things as inconceivable.
Also lost in the legal argument was the intent of a ban on annoying pre-Internet communications. Restrictions on annoying, harassing, and abusive telecommunications were intended to prevent things like making phone calls that could intrude on a person’s space, such as the incessant ringing of a phone in the middle of the night. They were never intended to govern the content of those communications.
As the Internet became more and more mainstream, Americans become far less active in fighting to protect its freewheeling nature. Shopping and commerce became more important than free expression and convenience, national security illusions and narcissistic selfies became far more important than privacy.
Public squares have become electronic walled gardens where pseudo-morality governs the dialog and things like images of breasts—whether for sex education or supporting mothers feeding children—are deleted and publishing privileges suspended by VC-appointed arbiters who have no idea about what free expression is or looks like.
Annoying communications, meanwhile, flourish on Facebook, Twitter, YouTube comments and beyond (to the extent I sometimes regret having fought to make them constitutional) thwarting communications and feeding trolls. Election years exacerbate the problem even further.
And far from being struck down, important principles, such as publications being protected against liability for third party content on their platforms, are very much governed by portions of the CDA that are alive and well.
All said, it was a fight worth fighting for an exceptionally important First Amendment right—no matter how annoying it may seem now.
Written for Electronic Frontier Foundation.