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CONTACT:
Alan Davidson
CDT Staff Counsel
Phone: 202-637-9800
Email: adb@cdt.org
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Internet Free Speech Precedent Unaffected by annoy.com Ruling
Yesterday's Supreme Court ruling in ApolloMedia v. Reno (the annoy.com
case) does not in any way diminish the Internet free speech precedent
established in ACLU v. Reno, the Supreme Court's landmark 1997 case
striking down provisions of the Communications Decency Act (CDA) as
unconstitutional.
On Monday, April 19, the Supreme Court affirmed a lower court ruling
upholding a different provision of the CDA dealing with harassing speech.
The lower court held that the provision of CDA criminalizing a
communication "which is obscene, lewd, lascivious, filthy, or indecent,
with intent to annoy, abuse, threaten or harass another person" is not
unconstitutional on its face with respect to *obscene* communications
communications only.
This ruling does not in any way affect the broader findings and conclusions
of the Supreme Court in ACLU v. Reno -- that the Internet is deserving of
the highest level of First Amendment protection and that the portion of the
CDA restricting "indecent" communications among adults violated the First
Amendment.
Several points distinguish the annoy.com case from the 1997 ACLU v. Reno
decision:
First Amendment law draws a distinction between indeceny, which is
pornographic material that adults are constitutionally entitled to purchase
and possess, and obscene material, which constitutionally can be outlawed
even for adults. The 1997 case was about the former, ApolloMedia was about
the latter.
The portion of the statute upheld in Monday's decision required an
additional element: the sending of messages with the intent to annoy,
abuse, threaten or harass. That portion of the CDA is much closer to laws
that make it a crime to deluge someone with harassing phone calls.
In the annoy.com case, the Supreme Court did not hear arguments and
issued no written opinion, a clear indication that the court found no issue
in the case requiring reexamination of its holding and reasoning in ACLU v.
Reno.
One more point: Like ACLU v. Reno, the annoy.com case was a facial
challenge, meaning annoy.com was not charged with any violation but was
asking the Court to rule in advance that there was no possible
constitutional application of the intent to harass section of the law. If
annoy.com is ever charged under the harassment section, it still can
challenge the constitutionality of the law as applied in light of the
specific facts.
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