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Decency Act provision on "annoying" indecency limited

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CALIFORNIA--A special panel of three federal judges in San Francisco ruled in late September that a provision of the Communications…

CALIFORNIA–A special panel of three federal judges in San Francisco ruled in late September that a provision of the Communications Decency Act of 1996 which creates criminal penalties for obscene and indecent telecommunication made “with an intent to annoy” is not constitutionally overbroad or vague.

Although the statute prohibits the transmission of “obscene, lewd, lascivious, filthy or indecent” communication with intent to “annoy, abuse, threaten, or harass another person,” the majority of the split panel narrowly interpreted the provision and agreed with the government’s position that it only applies to obscene communication, which is not constitutionally protected.

In examining the language and the legislative history of the statute, District Judge Maxine Chesney and Circuit Judge Michael Hawkins found that “the Supreme Court has read words, which are nearly identical to those … to refer solely to ‘obscenity,'” and identical words in different parts of the same act are targeted at outlawing obscenity.

The majority also stated they recognize they are “obliged whenever ‘fairly possible’ to interpret a statute in a manner that renders it constitutionally valid,” and this provision may be interpreted in a manner that permits “indecent,” but prohibits “obscene,” communication.

The provision was not addressed by the U.S. Supreme Court in its 1997 decision, ACLU v. Reno, which struck down a number of the CDA’s provisions. The act specifies that challenges to its constitutionality should be heard by a special panel of two federal district judges and one federal appellate judge.

District Judge Susan Illston dissented. She agreed that the challenged sections of the CDA may constitutionally prevent the transmission of obscene communications, but disagreed with “the majority’s conclusion that the actual words of the statute — ‘obscene, lewd, lascivious, filthy, or indecent’ — should be read to mean only ‘obscene.'”

Illston said the words “lewd, lascivious, filthy or indecent” would have to be severed from the statute to make it constitutionally sound. “Such a statute should mean exactly what it says, so that users will know what the rules are,” she argued.

ApolloMedia challenged the provision’s constitutionality in late 1997, fearing that their new website,, would violate the provision which prohibits “indecent” communication with the intent to “annoy,” a felony punishable by fine and up to two years of imprisonment. The site contains a “hard-hitting, in-your-face approach to political and social issues,” and allows visitors to “send anonymous email messages or digital postcards to politicians and public figures that could be considered ‘indecent’ with an ‘intent’ to ‘annoy,'” according to a press release on the site.

The special panel’s decision may be appealed directly to the Supreme Court, but ApolloMedia had not decided in early October whether it would appeal the court’s decision. (ApolloMedia Corporation v Janet Reno; Media counsel, William Bennett Turner)

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