In a bid to persuade a federal judge that there is a constitutional right to annoy, a San Francisco-based multimedia company that operates a site called annoy.com sued the U.S. Justice Department on Jan. 30, 1996, challenging an as-yet-untested component of the 1996 Communications Decency Act.

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff
APOLLOMEDIA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

APOLLOMEDIA CORPORATION,

Plaintiff,

vs.

JANET RENO, Attorney General of the United States,

Defendant.

Case No.

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF

(Civil Rights)

(Three-Judge Court, 28 U.S.C. Section 2284)

INTRODUCTION

1. This is an action for declaratory and injunctive relief challenging the provisions of the Communications Decency Act of 1996 that criminalize any "indecent" computer communication intended to "annoy" another person, 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2). These provisions treat as felonies and impose criminal penalties for constitutionally protected communications to other adults, including public officials. Plaintiff ApolloMedia Corporation is a provider and user of computer communications systems and a creator and publisher of content for computer-mediated communications. It seeks in this action to establish that these provisions are unconstitutional on their face and as applied.

JURISDICTION AND VENUE

2. This Court has jurisdiction pursuant to 28 U.S.C. Sections 1331, 1361 and 2201. Venue is proper under 28 U.S.C. Section 1391(e).

3. Under Section 561 of the Communications Decency Act, this action must be adjudicated by a three-judge court convened pursuant to 28 U.S.C. Section 2284.

PARTIES

4. Plaintiff ApolloMedia Corporation is a Delaware corporation formed in 1994. Its principal place of business is in San Francisco, California. ApolloMedia is a multimedia technology company whose business is entirely devoted to computer-mediated communications. It advises clients on, designs, and constructs sites on the World Wide Web, and it implements Internet systems for the delivery and management of information.

5. Defendant Janet Reno is the Attorney General of the United States and, in this capacity, is in charge of the agency of the government responsible for enforcement of federal criminal laws, including the provisions at issue in this case.

FACTS

6. In February, 1996, Congress enacted and the President signed the Communications Decency Act. Section 502 of the Act amended 47 U.S.C. Section 223(a) to provide, in relevant part, as follows:

"(a) Whoever --

(1) in interstate or foreign communications --

(A) by means of a telecommunications device knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;...or

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."

7. Plaintiff's business uses computers, modems and telephone lines to communicate its own "content" as well as the content published by its clients and visitors to its web sites. Plaintiff and some of its clients and visitors occasionally make, create, solicit and initiate the transmission of comments, requests, suggestions, proposals, images and other communications that some persons in some communities may consider "indecent." Occasionally, plaintiff, its clients and visitors make communications with what may be considered the intent to "annoy" another person, as when they criticize various government public officials and public figures.

8. In addition, plaintiff, its clients and visitors wish freely to be able to criticize public officials and private persons by using whatever language or imagery seems to them appropriate to the occasion and, whenever they wish, with the intent to "annoy" such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions. For example, plaintiff wishes to criticize President Clinton, Speaker Newt Gingrich, Senators Jesse Helms, Dianne Feinstein and James Exon, former Congressman Robert Dornan, Ralph Reed of the Christian Coalition, California Governor Pete Wilson, Justices of the Supreme Court, and others, using language that may be considered "indecent," with the intent to "annoy" such persons, because of their role in proposing, enacting and approving the Communications Decency Act and because of their role in taking other public measures with which plaintiff disagrees.

9. Plaintiff maintains a web site entitled "annoy.com" (http://www.annoy.com) that, among other things, allows visitors to compose and send email messages, anonymously, to various public officials and public figures. Visitors may elect to send messages that may be considered "indecent" to some persons in some communities. The "annoy.com" site also includes a section that allows visitors to leave messages about issues of interest to them, such as AIDS, gay marriage, rape and abortion. Visitors may read and respond to other messages and create hypertext "links" to other documents or web sites.

10. Plaintiff's online databases contain some material of social or political value that is sexually explicit or uses vulgar language that some persons in some communities might consider "indecent."

11. Plaintiff, its clients and visitors have a First Amendment right to communicate "indecent" material to adults, even if such communications are accompanied by an intent to "annoy" either the recipient or other persons. The provisions of the CDA at issue in this case, however, make any such communications a felony.

CLAIM

12. 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2), on their face and as applied to plaintiff and its clients and site visitors, violate the First Amendment because they: punish speech that is constitutionally protected; are impermissibly overbroad in that they ban, burden and chill a substantial amount of protected speech; are impermissibly vague for a criminal statute, in that speakers are forced to guess what speech may be prosecuted, and the statute invites arbitrary and discriminatory enforcement; and are not the least restrictive means of serving any legitimate government purpose.

13. Plaintiff has no plain, adequate or complete remedy at law to redress its grievances under the statute and this suit for equitable relief is its only means of securing adequate relief. Plaintiff is now suffering and will continue to suffer irreparable injury if not redressed by this Court.

WHEREFORE, plaintiff respectfully prays that the Court:

a. Enter a declaratory judgment under 28 U.S.C. Section 2201, declaring that 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2) violate the First Amendment;

b. Grant a preliminary and permanent injunction restraining defendant from taking steps to enforce 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2);

c. Award plaintiff its costs and reasonable attorneys' fees; and

d. Grant such other relief as may be just and proper.

DATED: January 30, 1997

Respectfully submitted,

ROGERS, JOSEPH, O'DONNELL & QUINN

By:

William Bennett Turner

COOLEY GODWARD LLP

By:

Michael Traynor

Attorneys for Plaintiff

APOLLOMEDIA CORPORATION