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?
Satisfying as it would be to rake KQED over the coals one more time for ignoring fresh public affairs programming while dedicating itself to cooking shows and repeats of the Three Tenors concerts, it's really not about KQED. In the Rube Goldberg world of public television, where nobody even tries to explain the screwy logic of four separate stations operating in an overlapping market, the story behind Fear and Favor in the Newsroom is a complicated one.
The hourlong documentary, produced and directed by Berkeley-based filmmaker Beth Sanders and written by Randy Baker, argues that "ownership of the press by a small corporate elite constricts the free flow of ideas and information." It offers accounts by print and broadcast journalists who say they were pressured -- or in some cases fired -- for pursuing stories that conflicted with their employers' corporate interests. Some case studies are less compelling than others, and the narration by aging muckraker Studs Terkel is rather more conspiratorial than the material warrants. But it is a serious effort to explore a serious subject, and documentarians are often at their best when opinionated.
Quality and subject matter entirely aside, the problem with Fear and Favor is that it is an independent production. Even prior to the funding crises of the past several years, that would make it a journalistic orphan in a public broadcast system geared primarily to attract corporate or foundation underwriting. In the early 1980s, independent producers managed to convince Congress to earmark a special fund for their work. A grand total of about 30 documentaries a year make it to the air this way. PBS also set up new series like POV and Frontline that could serve as umbrellas for individual documentaries.
Still, the odds of getting them broadcast are almost insurmountable. Sanders and Baker were turned down three times by the independent producers' fund, which would have guaranteed national exposure, and by a public TV station in Chicago where Sanders had won a local Emmy. The next stops were KTEH, which bit immediately, and KQED, which, according to Sanders, has yet to reply.
Danny McGuire, executive producer at KTEH and himself a former independent filmmaker, says that while it's frustrating to be in line behind KQED, there are advantages to being the poor cousin. The station, whose $7 million a year operating budget is about a fifth of KQED's, takes only about 30 to 40 percent of its programming from PBS. It simply can't afford to pay for much of the programming that comes off the national PBS feed.
So for the past 15 years, while KQED has been pandering to an audience with expensive PBS fare and ersatz "festivals" of Fred and Ginger movies, KTEH has been trying to carve out a niche as a patron of independent producers. Since 1980, the station has produced or co-produced 12 series (none of them involving PBS) and more than 45 documentaries or specials. Because KTEH is a nonunion shop, costs are lower and production arrangements considerably less involved than at KQED, whose management has often blamed its unions for inhibiting cooperation with independent local producers.
Having taken on Fear and Favor, McGuire's task now is to shepherd it through the PBS labyrinth, starting with PBS's prime-time feed on down to shopping it from station to station. With each step, the size of the potential audience diminishes.
For lack of a better term, you might call that self-censorship.