License to Annoy
Predictably, the 1996 Communications Decency Act -- with its absurd, prudish intent to gag the Internet -- has inspired legions of First Amendment challengers. They quickly won an injunction, and the initial round of arguments on the law's merits is expected to last until spring.
But Clinton Fein, an S.F. Website designer, says that a key provision has been overlooked: The CDA's criminal penalties for using the Internet to send "indecent" language with the "intent to annoy." To prove his point, and test the law, he launched annoy.com last week, which provides visitors with an opportunity to do just that.
Fein has chosen one of the less attractive forms of free expression with which to align himself. That doesn't mean his point is not valid. As it stands under the CDA, someone can use indecent language to tell off President Bill Clinton, say, in writing, in person, or by telegram, but not via fax or the Internet. With annoy.com, "You can send Clinton e-mail that calls him a fucking asshole," Fein says.
Essentially an update of the law against telephone harassment like heavy breathers and repeat callers, the CDA's ban on indecent annoyance may seem somewhat less than completely pernicious. But Fein and his First Amendment muscle -- free speech lawyers Bill Turner and Michael Traynor -- say that the CDA is wrongly imposing an "old technology" model, as Turner puts it, on the new technology of the Internet.
Set aside, for a moment, the problem of ascertaining "community standards" (by which obscenity historically has been measured) in a global medium. And never mind the impossible task of credibly defining "intent to annoy." An even more fundamental flaw, they say, is that equating phone calls and even over-the-air broadcasts with computer communications leads to bad law. For instance, the telephonic telecommunications law forbids harassing someone by continuously dialing a number and letting it ring, for the reason that the sound alone constitutes an illegal intrusion. However, they point out, unlike a ringing phone, an e-mail message is silent.
Turner and Traynor note a more chilling distinction between the two media in their memo asking for a preliminary injunction. "[E]nforcement [of the CDA] will involve widespread eavesdropping or other participation by government agents and vigilante groups in the on-line conversations of ordinary citizens ... unlike complaint-activated monitoring of public broadcasts by the FCC."
As a Website, annoy.com's appeal for now lies more in the strength of its theoretical and symbolic underpinnings than its actual content. It's not the first place to turn for informed commentary on issues of the day. But that's not Fein's intent. He's hoping mainly to have people use the Internet to annoy selected targets.
Fein put the site through its paces last Thursday in front of a dozen or so reporters and supporters at a borrowed SOMA office. The Website's opening page is decorated with flashing boxes that show a changing assortment of images, icons, and many of the seven dirty words comedian George Carlin used on the air in his own test case.
The key section is called "Heckle." It contains three or four essays from writers commissioned to sound off on a "hot button" issue (abortion, gun control, same-sex marriage, and gays in the military, to name a few) "completely avoiding any pretense of objectivity," Fein says. The Website then furnishes visitors a structured way to share their thoughts with a few carefully chosen recipients.
For the demonstration, Fein chose an essay by novelist Patricia Nell Warren, who took the Religious Right to task for their harsh attitudes toward children. Running down the right-hand side of the screen of the essay is an interactive form letter. Pull-down menus permit the visitor to customize it at crucial junctures -- starting with the addressee and ending with a final insult or commendation.
Fein chose Beverly LaHaye, head of the conservative Concerned Women of America, as his recipient and signed off by calling her a "cunt" (the third choice on the menu). Then he selected "send." The e-mail would have gone off to LaHaye's electronic mailbox (except CWA's Website has no e-mail listing, Fein later discovered) without disclosing the identity of the writer. Hiding the sender "makes it impossible for the government to prove intent," Fein explains. The structured format protects annoy.com from being used in unintended ways.
He is taking risks, however. With every e-mail sent through annoy.com that someone considers "indecent" and "annoying" Fein is committing a felony, punishable by two years in prison and six-figure fines. (The precise penalties are still uncertain.)
Needless to say, his lawyers simultaneously filed suit in federal District Court in S.F. asking for an injunction against enforcement and seeking to have the law overthrown. It will be about two months before judges hear even preliminary arguments on the case. In the meantime, if the obscenity provisions of the CDA are upheld in the other suits, Fein could face prosecution on those grounds as well.
It started out as a simple question, a matter of idle curiosity: Why did a provocative documentary on newsroom self-censorship show up last week on San Jose's tiny public television station, KTEH, and not on KQED, the largest by far of the four public TV stations that serve the Bay Area?