FC: Annoy.com's Clinton Fein on CDA, reporters, and poor news coverage

[Declan McCullagh <declan () well com>]

Previous Politech message:

"More on did Supreme Court truly overturn 'morphed' kiddie porn ban?"
http://www.politechbot.com/p-03403.html

---

Subject: RE: Did Supreme Court really overturn "morphed" kiddie porn ban?
Date: Thu, 18 Apr 2002 14:39:29 -0700
From: "Clinton D. Fein" <clinton.fein () apollomedia com>
To: <declan () well com>

Hi Declan:

As you must have already seen by now, the vast majority of headlines 
covering these issues have intimated that the Supreme Court indeed struck 
down CPPA.

The cat is out of the bag, I'm afraid. While Paul McMasters correctly 
points out the fact that only the challenged provisions were struck down, 
and that the unchallenged ones remain enforceable and applicable, the fine 
details don't make for sensational -- or concise -- enough headlines.

The same is true of the CDA, core provisions of which were challenged, were 
struck down by the Supreme Court in Reno v. ACLU, while other challenges -- 
such as ApolloMedia v. Reno were upheld by the Supreme Court (albeit 
interpreted to apply to obscenity only.) Of course, additional provisions 
of the CDA remain in full force, such as the "good Samaritan" provision 
which was still left standing, as evidenced by the ruling in the Zeran v. 
America Online, Inc. case  - a very
important one in the defamation area. A similar ruling was made in favor of 
AOL by the trial court in the Blumenthal v.Drudge case in the area of 
libel. There are also other CDA provisions remaining and enforceable that 
significantly impact privacy and Press.

In April 2000, a web site, about.com, revived the still existing provision 
of the Communications Decency Act that ApolloMedia argued should be "struck 
down" in the annoy.com case to issue subpoenas to various ISPs around the 
country in an effort to unmask an Internet user. (see 
http://www.nytimes.com/library/tech/00/04/cyber/cyberlaw/21law.html )

While it may seem pedantic, headlines such as "Supreme Court Strikes Down 
CDA" or "Child Pornography Prevention Act overturned by High Court" 
sometimes have unintended consequences. I know for instance, I spent more 
than a fair share of time trying to explain to people that vigilance in the 
fight for free speech online should remain, as many had taken the headlines 
at face value. A very energized audience that had galvanized as a result of 
Blue Ribbon campaigns, your list and numerous other efforts, lost many 
willing supporters who falsely assumed the battle was over, and had been 
won -- rather than the first round.

While some journalists have been quick to appreciate the distinctions, 
others have countered that in the confines of a piece of journalism, even 
in a legal publication, there is simply not enough room to mention such 
facts and that most sophisticated readers know that most facial attacks 
focus on portions of a statute, and not the entire law.

Understanding the law, let alone trying to comply with it is difficult 
enough. Already in the short space of time since the Supremes ruled on the 
CPPA provisions, you can see the usefulness of such headlines for 
organizations such as the American Family Association (such as BBC's "US 
court quashes child porn law" or Christian Science Monitor's "High court 
allows virtual-child pornography") as a fund raising mechanism to continue 
to attack free speech.

It's quite amazing how the presence or absence of a couple of words "core 
provisions" or "challenged provisions" can make such a remarkable difference.

Clinton
_____________________________________

Clinton Fein
President
ApolloMedia Corporation
370 7th Street, Suite 6
San Francisco, CA  94103
Phone: 415-552-7655
Fax: 415-552-7656
http://apollomedia.com/
_____________________________________




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org
-------------------------------------------------------------------------