Some free-speech issues, Peter Dordal, 2007

Internet libel: Batzel v Cremers

Here's the museum-security.org statement (that's the organization Cremers was working for).

Here's the Ninth Circuit (Appelate) Court decision (referenced through the California Anti-SLAPP site). Two judges upheld the district judge's ruling that Cremers was protected by Section 230, one dissented. They did agree that the case should be sent back to the district court to determine the answer to the factual question: did Cremers have reason to believe that Smith was submitting his message with the intent to have it published? The district court would have granted very broad protection to Cremers, but the Circuit court states:

We disagree. Under Cremers's broad interpretation of § 230(c), users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet. At the same time, the creator or developer of the information presumably could not be held liable for unforeseeable publication of his material to huge numbers of people with whom he had no intention to communicate. The result would be nearly limitless immunity for speech never meant to be broadcast over the Internet.

So the final standard is that the actual provider must have intended Internet publication, or, more precisely, whether Cremers had reason to believe that.

As to whether Cremers did have reason to believe that, he was running a standard "moderated" mailing list. Smith's message was sent to securema@museum-security.org; the proper email address for list submission was securma@x54all.nl, which, while different, is certainly similar. There seems little doubt that Cremers was not aware of just how confused Smith was. Smith himself writes "Every message board to which I have ever subscribed required application, a password, and/or registration, and the instructions explained this is necessary to keep out the advertisers, cranks, and bumbling idiots like me." Though this did not happen, there is certainly room for finding Cremers at fault here on this particular.

The Circuit court does indeed look at the intent of Congress. Some commentators deplore this practice, saying that judges should stick to the "plain meaning" of the text. (Justice Scalia is a proponent of this view, though it much predates him.) At any rate, the Circuit Court understood that Prodigy v Oakmont, where Prodigy was found liable because they did exercise some editorial control, was the case that section 230 was intended to reverse.

Initially, to me, what was most surprising about this case was that the court extended Section 230 protection from ISPs to individuals (eg mailing list managers, bloggers, etc). The Prodigy case could have been handled by granting protection only to ISPs, or maybe to entities whose fundamental purpose is not to generate content directly. But the law does not in fact say that.

Here are a few different possible interpretations of Section 230:
  1. That it apply only to Internet Service Providers, ie big network-provider organizations that are disinterested parties as far as the content is concerned.
  2. That it applies to ISPs and individuals only when they have no control over what content gets posted.
  3. That it applies to ISPs and individuals when they select content generated by others, providing they are including or quoting the original provider in full.
  4. That it applies as the Circuit Court held above, ie when the original provider had intended Internet publication; the secondary provider may edit as necessary.
  5. That it applies no matter what the original content provider (perhaps with a requirement that any editing must not change the substantive meaning).
The difference between 3 and 4 lies in whether the secondary provider is allowed to edit the original provider's submission. While that might seem like a proper line to take, that is, the act of editing is the point where the secondary provider must accept responsibility, the problem is that Prodigy wanted exactly that right: to edit the original submissions. So the Circuit Court's latching on to interpretation 4 can be seen as fitting with Congress's intent. The dissenting judge in the Circuit Court decision, by the way, seems to feel that option 2 is closer to the appropriate standard; he seems to disagree that a moderated list should get any Section-230 protection.

Threat Speech: Nuremberg Files

The alleged threats were against abortion providers; the files were started by (or at least were later maintained by) Neal Horsley, with the nominal idea of having a list of abortion providers on hand in case someday in the future public sentiment swung around sufficiently that they might be tried for "crimes against humanity." In such cases one is often disallowed the defense "it was legal at the time" in the same way that the Nazis tried at the original Nuremberg trials were not allowed to use the defense "we were just following orders".

Here's the "atrocity" page, in which Horsley reprints from a pro-abortion site a list of abortion providers including annotations as to which have been killed or wounded. His argument is that when he did that, he (well, the ACLA) got sued. Further down that page, Horsley uses the strikethrough mechanism to list women who have died during abortions. (Abortions have genuine risks. Childbirth does too; it used to be conventional wisdom that maternal risk from abortion was much lower than maternal risks from carrying a baby to term.)

Here's the page of Horsley's containing tables from before and after Dr Slepian's assassination. The day before, according to Horsley, his only intent was that cited above; the day after, he added Dr Slepian's name, with a strikethrough. Slepian's name had not been there before, leading Horsley to protest very strongly that his site could not have been a threat against Slepian. (The lawsuit was filed by other physicians who felt it was a threat to them; Horsley is silent on this.)

Planned Parenthood claims the site "celebrate[s] violence against abortion providers".

Horsley is having trouble finding ISPs willing to host his site. The notion of ISP censorship is an interesting one in its own right.

Here's a good site with background information about the case. The actual lawsuit was brought in 1995 by Planned Parenthood (and some abortion providers) against American Coalition of Life Activists (ACLA) et al. Horsley was not party to that suit; his Nuremberg site was in fact not created until 1997. The original lawsuit was over threatening "Wanted" posters depicting abortion providers; Horsley's site (but not Horsley himself) was added later. In retrospect it seems reasonable to think that, if it were not for the context created by the "Wanted" posters, there would have been no issue with the Nuremberg Files web pages.

The central question in the case is whether the statements amounted to a "true threat" that met the standard for being beyond the bounds of free-speech protection.

The judge gave the jury instructions to take into account the prevailing climate of violence against abortion providers; the jury was also considering not an ordinary civil claim but one brought under the Freedom of Access to Clinic  Entrances act (FACE), which allows lawsuits against anyone who "intimidates" anyone providing an abortion. (The first-amendment issue applies just as much with the FACE law as without.) The jury returned a verdict against the ACLA for $100 million, and the judge granted a permanent injunction against the Nuremberg Files site (Horsley's). Here is that injunction.

Under current free-speech standards, you are allowed to threaten people. You are allowed to incite others to violence. You are not allowed to incite anyone to imminent violence, and you are not allowed to make threats that you personally intend to carry out. 

At first glance, the jury's decision was inconsistent with these standards. When the case was heard on appeal by the Ninth Circuit Court, by a three-judge panel, the jury decision was overturned.

Here is the initial appellate-court decision, written by Judge Kozinski. He bases his decision largely on the case of  NAACP v Claiborne Hardware, a Supreme Court  decision from 1982. The NAACP had organized a boycott of some white-owned businesses, and had posted activists to take down names of black patrons. The NAACP liaison, Charles Evers, had stated publicly that those ignoring the boycott would be "disciplined" and at one point said "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court found in the NAACP's favor, on the grounds that there was no evidence Evers had authorized any acts of violence, or even made any direct threats (eg to specific individuals). Kozinski argues that whatever the ACLA was doing was less threatening than what Evers was doing, and therefore dismisses the case.

Then the entire Ninth Circuit Court (not just a three-judge panel) agreed to hear the case (this is called an en banc hearing). They reversed again, upholding the original jury award.

Here is the decision of the entire Ninth Circuit Court. It's long; they took this seriously. It includes a detailed finding about the facts of the case. The decision makes a distinction between "advocating violence" (protected) and "threatening a person with violence" (not). They also argued that context is all-important, and that this is why the Claiborne case above is not a good parallel. In that case, despite Evers' threats there was relatively little violence: no one was seriously injured, and some black members of the community continued to patronize the stores. So, in that context, Evers' statements were not "true threats". The context here, where several abortion providers had already been killed and where harassment was continual, was entirely different.

Here is their discussion of that context, pertaining to the original WANTED posters rather than the website:

Even if the Gunn poster, which was the first “WANTED” poster, was a purely political message when originally issued, and even if the Britton poster were too, by the time of the Crist poster, the poster format itself had acquired currency as a death threat for abortion providers. Gunn was killed after his poster was released; Britton was killed after his poster was released; and Patterson was killed after his poster was released.
That is a pretty chilling context.

ACLA appealed to the Supreme Court. While there was still some hope the Supreme Court might see things differently, the Ninth Circuit had established that the speech in question met certain standards for being a true threat, and the ACLA would have had to argue that some factual interpretations were mistaken. But the Supreme Court does not generally decide cases about facts; they accept cases about significant or conflicting legal principles. As the principles were nominally settled by the Ninth Circuit, the Supreme Court did not agree to hear the case.

Finally, you might wonder why, with all the threats of violence made during the course of the civil rights movement by whites against blacks, the case NAACP v Claiborne that comes to us is an allegation of violence by blacks against blacks. I think it's safe to say that the answer has nothing to do with who made more threats, and everything to do with who could afford more lawyers.