September 24, 1998 6:20 PM PDT

Annoy.com free to bother Netizens

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The publishers of the scorching commentary site Annoy.com say they can keep raising eyebrows without fear of prosecution under a federal court ruling today.

A panel of three U.S. District court judges in San Francisco narrowly tailored a little-known provision of the Communications Decency Act that made it a crime, punishable by a fine and up to two years in prison, to transmit "indecent" material "with intent to annoy."

The federal panel did not throw out the statute as unconstitutional, but in a split decision, the judges said the statute applied only to "obscene" speech, which is not protected by the First Amendment.

Annoy.com's controversial opinion pieces and electronic postcards often contain profanity and sexually explicit content and are intended to make people angry or uncomfortable. In January 1997, Annoy.com's parent company, ApolloMedia Corporation, filed a lawsuit against the government challenging the provision.

Now sites like Annoy.com are free to speak "indecently" on the Net in an effort to irk people, but obscenity could get them in trouble.

Under the so-called Miller Test, material is "obscene" if it meets a three-tier test: "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest"; "if the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and "if the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Last June, 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. Opponents of laws such as the CDA say the term "indecent" could apply to an array of online content about topics including art, medicine, safe sex, or gay rights.

"In a nutshell, we achieved our objective on a couple of levels--it is constitutional to use the Net to transmit material that is indecent with an intent to annoy," said Clinton Fein, president of ApolloMedia.

"We can put up the most vulgar, rude, disgusting stuff up on Annoy.com, but it's politically and socially redeeming, so it can't be [deemed] obscene," he added. "I have mixed feelings, though, because I would have preferred to see them strike down the law. I don't think the courts should rewrite the law where Congress failed."

ApolloMedia has not decided if it will challenge the ruling.

 

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