[NB: why are Morris & Steel identified above by their occupations?]
They were distributing pamphlets claiming:
Note that their story had NOTHING to do with the internet!
Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts.
From mcspotlight.org/case/trial/story.html:
Mr Justice Bell took two hours to read his summary to a packed court room. He ruled that Helen and Dave had not proved the allegations against McDonald's on rainforest destruction, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions. But they had proved that McDonald's "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are "culpabably responsible" for cruelty to animals, are "strongly antipathetic" to unions and pay their workers low wages.
And so, Morris & Steel were held liable for £60,000 in damages.
McDonalds had to hire spies to infiltrate London Greenpeace to get names of members involved.
Morris & Steel raised £35,000 for their defense, most of which apparently went to paying for transcripts.
On 15th February 2005, the European Court of Human Rights in Strasbourg declared that the mammoth McLibel case was in breach of the right to a fair trial and right to freedom of expression.
"Libel Terrorism": a play on "libel tourism", the practice of suing for Libel in the UK (or another friendly venue, though it's hard to beat the UK's "defendant must prove truth" doctrine, plus the "plaintiff need not prove malice" part)
New York now has the Libel Terrorism Protection Act.
Case: Sheikh Khalid bin Mahfouz v Rachel Ehrenfeld
Rachel
Ehrenfeld wrote Funding Evil,
a rather polemical book about how terrorist organizations gain funding
through drug trafficking and other illegal strategies. The first edition appeared in 2003. The book
apparently alleges that Sheik Khalid bin Mahfouz is a major participant
in terrorist fundraising. Mahfouz sued in England, although the
book was not distributed there; however, 23 copies were ordered online
from the US. In 2005 the court in England found in Mahfouz's favor, describing Ehrenfeld's defense as "material
of a flimsy and unreliable nature" (though some of that may have been
related to the costs of mounting a more credible defense, and
Ehrenfeld's conviction that no such defense should be necessary),
and ordered Ehrenfeld to pay $225,000.
Ehrenfeld
filed a lawsuit against Mahfouz in the US, seeking a declaration that
the judgement in England could not be enforced here. The case was
dismissed because the judge determined that the court lacked
jurisdiction over Mahfouz. A second ruling arriving at the same
conclusion came in 2007.
In
May 2008, New York state passed the Libel Tourism Protection Act, that
offers some form of protection against enforcement in New York state of
libel claims from other countries. However, Mahfouz has not sought to
collect, and probably will not.
(compare
wto.org)
Is this funny? Or serious?
Are there legitimate trademark issues?
Note that it keeps changing.
Try to find the links that are actually there.Why
would a judge issue rules on what typestyle (eg strikethrough) a website
could use? Did the judge in fact issue that ruling, or is that just an
exaggeration from the defendants? The actual injunction (from the DC
judge ruling link, below) states
That is much more general than just "no strikethrough", though the strikethrough was widely interpreted as a "specific intent to threaten".
The
"Nuremberg" website was founded by Neal Horsley, with the nominal idea
of gathering evidence for the day when abortion providers might be
tried for "crimes against humanity".
(In such cases, the defense "it was legal at the time" is not accepted.)
In 1998, Dr Bernard Slepian was killed at home. 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.)
Original
site: christiangallery.com, christiangallery.com/atrocity,
/atrocity/aborts.html
Archived site without strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts.html
(though the strikethroughed page follows!)
Achived site with strikethrough: cs.luc.edu/pld/ethics/nuremberg/aborts2.html
(Dr Gunn is col 2 row 8).
Archived site of Horstley's own before-and-after: cs.luc.edu/pld/ethics/nuremberg/californicate.htm
(part of his own attempt to justify his site to the public).
After
looking at these, consider Horsley's claim,
Do
you think this is an accurate statement?
The civil case was filed in 1995, after some abortion providers had been murdered (eg Dr Hugh Short) and "wanted" posters were issued by ACLA for others. There was a federal law, the 1994 Federal Freedom of Access to Clinic Entrances Act (FACE), that provided protections against threats to abortion providers.
Horsley's site was created in 1997, and was added to the case. By 1997,
the internet was no longer new, but judges were still having difficulty
figuring out what standards should apply.
Horsley's actual statements are pretty much limited to facts and to opinions that are arguably protected. He does not appear to make any explicit calls to violence.
Planned Parenthood claimed the site "celebrate[s] violence against abortion providers".
For
a
while, Horsley was having trouble finding ISPs willing to host his
site. The
notion of ISP censorship is an interesting one in its own right. The
Stanford site, below, claims that OneNet, as the ISP (carrying traffic
only) for the webhosting site used by Horsley,demanded that Horsley's
content be removed.
Here's a Stanford student group's site about the case. The original 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 (1999) 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).
DC
Judge (full decision at http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_trial.html):
See
also the following paragraph.
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.
The case was appealed to a 9th Circuit 3-judge panel, which overturned the injunction. Judge Kosinski based his ruling on NAACP v Claiborne Hardware, SCOTUS 1982. Synopsis: 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 [brother of Medgar 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.
Full 9th-circuit then heard the case, en banc
Ruling is by judge Rymer, dissents by judges Reinhardt, Kozinski (writer of the decision of the three-judge panel that heard the case), and Berzon (of Batzel v Cremers)
See http://webpages.cs.luc.edu/~pld/ethics/nuremberg/PPvACLA_9th_enbanc.pdf
5 pages of plaintiffs / defendants
Here's Rymer's problem with the NAACP v Claiborne analogy: 7121/41, at [8]
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.
[Neil Horsley claims no one was listed on the Nuremberg Files list until after they were attacked.]
Here's Rymer's summary: 7092/12, 3rd paragraph
We reheard the case en banc because these issues are obviously important. We now conclude that it was proper for the district court to adopt our long-standing law on "true threats" to define a "threat" for purposes of FACE. FACE itself requires that the threat of force be made with the intent to intimidate. Thus, the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA's intent to harm them because they provided reproductive health services. ...
7093/13 We are independently satisfied that to this limited extent, ACLA's conduct amounted to a true threat and is not protected speech
threats are not the same as libel: 7099/19
Section II: (p 7098/18) discussion of why the court will review the facts (normally appeals courts don't) as to whether ACLA's conduct was a "true threat"
Section III (p 7105) ACLA claims its actions were "political speech" and not an incitement to imminent lawless action. Posters have no explicitly threatening language!
7106/26, end of 1st paragraph:
This is a core problem: can context be taken into account? Can possible actions of others be taken into account?
Text of FACE law:
Whoever... by force or threat of force or by physical obstruction, intentionally injures, INTIMIDATES or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been [a provider of reproductive health services] [n]othing in this section shall be construed . . . to prohibit any expressive conduct ... protected from legal prohibition by the First Amendment
This subjects them to civil remedies, though perhaps not prior restraint.
Cases cited:
Brandenburg v Ohio, SCOTUS 1969: 1st amendment protects speech advocating violence, so long as the speech is not intended to produce "imminent lawless action" (key phrase introduced) and is not likely to produce such action.
This was an important case that strengthened and clarified the "clear and present danger" rule (speech can only be restricted in such situations) first spelled out in Schenck v US, 1919. Brandenburg introduced the "imminent lawless action" standard.
Clarence Brandenburg was a KKK leader who invited the press to his rally, at which he made a speech referring to the possibility of "revengeance" [sic] against certain groups. No specific attacks OR TARGETS were mentioned.
Robert Watts v United States, SCOTUS 1969. Watts spoke at an anti-draft rally (actually a DuBois Club meeting):
"They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."
Watts' speech was held to be political hyperbole. This case overturned long precedent regarding threats.
Particular attention to NAACP v Claiborne. Distinction: there was no actual violence then! Decision was that Evers' speeches did not incite illegal activity, and thus did not lead to business losses. No "true threat" determination was made nor needed to be made.
Also, Evers' overall tone was to call for non-violent actions such as social ostracism.
This leaves Watts as the only SCOTUS case dealing with "true threats" issue.
Roy v United States: USMC private hears Nixon is coming and says "I am going to get him"
Whether a particular statement may properly be considered to be a threat is governed by an objective standard -- whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.
Note this "reasonable person" standard. No hiding behind "that's not really what we meant". Also, intent to carry out is not required:
It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.
[communicates it as a serious threat, that is, not just hyperbole]
ACLU amicus brief: The person must have intended to threaten or intimidate.
Rymer: this intent test is included in the language of FACE; ACLA has met this test long ago. Did ACLA intend to "intimidate"?
Two dissents argue that the speaker must "actually intend to carry out the threat, or be in control of those who will"
But Rymer argues that the court should stick with the "listener's reaction"; ie the reasonable-person standard again.
Conclusion of this line of argument (intent v how it is heard):
7116/36, at [7] Therefore, we hold that "threat of force" in FACE means what our settled threats law says a true threat is: a statement which, in the entire context and under all the , circumstances a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person. So defined, a threatening statement that violates FACE is unprotected under the First Amendment.
Crucial issue: the use of the strikeout and grey-out. This is what crosses the line.
7138/53, 2nd paragraph:
The
Supreme court refused to hear the case. 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.
See
also Baase, p 190, Exercise 3.23:
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, filed by whites. 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.
this was a book published by Paladin Press, written by "Rex Feral", supposedly a pseudonym for a woman who writes true-crime books for a living. It is likely a work of fiction.
In 1993, James Perry murdered Mildred Horn, her 8-year-old son Trevor, and nurse Janice Saunders. He was allegedly hired by Lawrence Horn. In Rice v Paladin Enterprises (1997), the federal court of appeals (4th circuit) held that the case could go to jury trial; ie freedom-of-press issues did not automatically prevent that.
Many of the specifics of the Perry murders were out of the book. Many of them are rather compellingly "obvious": pay cash, rent a car under an assumed name, steal an out-of-state license plate, use an AR-7 rifle (accurate but collapsible), make it look like a robbery
The
book also explains how to build a silencer, which is not at all
obvious; Perry allegedly did just this.
The
following are from the judge's decision. "Stipulations" are alleged
facts that are not being contested at the present time.
"The parties agree that the sole issue to be decided by the Court . . . is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings." (emphasis added)
Notwithstanding Paladin's extraordinary stipulations that it not only knew that its instructions might be used by murderers, but that it actually intended to provide assistance to murderers and would-be murderers which would be used by them "upon receipt," and that it in fact assisted Perry in particular in the commission of the murders of Mildred and Trevor Horn and Janice Saunders, the district court granted Paladin's motion for summary judgment and dismissed plaintiffs' claims that Paladin aided and abetted Perry, holding that these claims were barred by the First Amendment as a matter of law.
What's going on here? Why did Paladin stipulate all that? It looks to me like Paladin was acknowledging the hypotheticals as part of its claim that they didn't matter, that the First Amendment protected them.
The
court ruled it did not:
Past
cases that lost:
Brandenberg v Ohio [discussed above under PP v ACLA] was cited as a case of protected speech advocating lawlessness. But this case, due to Paladin's stipulations [!!], was much more specific.
A popular theory was that after Paladin Press settled the case (which they did, under pressure from their insurer), the rights to the book ended up in the public domain. Paladin claims otherwise; however, the Utopian Anarchist Party promptly posted the entire book at overthrow.com and that was that. [Other parties may also have posted the book independently] (The bootleg copies don't have the diagrams, though)
It
has been claimed that Hit Man
was sold almost entirely
to non-criminals who simply like antiestablishment stuff. However, this
is (a) speculative (though likely), and (b) irrelevant to the question
of whether some criminals
bought it.
Look
at the current Paladin website.
Does it look like their primary focus is encouraging criminals?
Secondary focus?
To find Hitman, google "hit man" "rex feral", or search Amazon.com. Most references as of 2009 are to those selling used copies of the physical book; check out amazon.com for current prices of used editions. The site http://mirror.die.net/hitman still has the online text.
Other
bad materials:
Note EofJ has significant political/religious component!
4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html
Baase, section 3.3.2; see also Marc Greenberg's article at http://www.btlj.org/data/articles/18_04_05.pdf. (Quotes below not otherwise cited are from Greenberg's article.)
Yahoo offered Nazi memorabilia for sale on its auction site.
They were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme), joined by the UEJF, the Union of French Jewish Students. In France the sale of Nazi memorabilia is illegal.
(This is a JURISDICTIONAL case that probably should be discussed
elsewhere, except that it addresses a free-speech issue.)
The case was heard in Paris by Judge Jean-Jacques Gomez, who explained the French law as follows:
Whereas the exhibition of Nazi objects
for purposes of sale constitutes a violation of French law ..., and
even more an affront to the collective memory of a country profoundly
traumatised by the atrocities committed by and in the name of the
criminal Nazi regime against its citizens and above all against its
citizens of the Jewish faith . . . .
Judge Gomez decided they did have jurisdiction to hear the case.
But Yahoo US has no assets in France! There was a separate company, Yahoo France, that controlled the yahoo.fr domain.
Judge Gomez based his jurisdictional decision on the so-called effects test: that the actions of Yahoo US had negative effects within France. Intent, or targeting, or direction do not enter; the effects test is perhaps the weakest basis for claiming jurisdiction. Gomez later explained some of his reasoning in an interview:
For me, the issue was never whether this was an American site, whether Yahoo had a subsidiary in France, the only issue was whether the image was accessible in France. It is true that the Internet creates virtual images, but to the extent that the images are available in France, a French judge has jurisdiction for harm caused in France or violations of French law.
Gomez issued his first interim order on May 22, 2000: that Yahoo US must use geolocation software to block access to its auction materials within France. It was estimated that 70% of French citizens could be blocked by the software alone, and that another 20% would be blocked by adding a page that said
To continue, click here to certify that you are not in France
What would the purpose of that be? Clearly, French neo-Nazis would
likely simply lie. However, other French citizens would be reminded
that these objects violated French law. What is the purpose of laws?
The 9th Circuit Appellate court, ruling en banc, held that the US likely did
have jurisdiction in the case against LICRA and UEJF, specifically
because of LICRA and UEJF's actions against Yahoo US in French court.
BUT the case was directed to be "dismissed without prejudice",
as it was not yet ready to be decided. It was not in fact "ripe"; there was no active controversy.
(same thing happened to US v Warshak, when the 6th circuit en banc
ruled the question was not "ripe")
The appellate decision was based squarely on the idea that Yahoo US insisted that its change of policy regarding the sale of "hate" artifacts was not related to the French case. As a result of that, Yahoo could not show that their speech was in any way chilled. Therefore, there was no actual controversy. The Appellate court also took into account the lack of interest on the part of LICRA and UEJF of pursuing the penalties. Finally, paradoxically, the Appellate court hinted that Yahoo could not really have believed that, if LICRA or UEJF did ask for penalties, that any US court would have gone along; any US court would reject such a judgement (perhaps on First Amendment grounds despite the 9th circuit's wording here):
Ironically, because Yahoo took the ethical approach of banning the sale of hate materials, their legal case became moot.
Judge William Fletcher:
1. Here is a summary of Yahoo's position:
For its part, while Yahoo! does not independently wish to take steps to comply more fully with the French court’s orders, it states that it fears that it may be subject to a substantial (and increasing) fine if it does not. Yahoo! maintains that in these circumstances it has a legally cognizable interest in knowing whether the French court’s orders are enforceable in this country.
2. The French court did not ask for restrictions on US citizens. If
geolocation filtering works, inother words, the issue is moot:
3. Maybe Yahoo is ok in France. (Note, however, that the uncertainty still hangs over Yahoo.)
At other points, Judge Fletcher uses the fact that neither LICRA nor
UEJF have taken further steps as additional evidence that there is no
"active controversy". Another sentence along this line is
And here's the kicker, dismissing the "chilled speech" issue:
The First Amendment applies in the US, not in France. Not that Judge Fletcher doesn't get this:
But:
That, of course, was due to Yahoo's ethical decision not to allow the sale of hate materials.
Judge Fletcher then states
The first phrase here, about French
users, was omitted by some sites that reported on the decision
[including me -- pld]; that omission decidedly changes Fletcher's
meaning, which is that the First Amendment does not necesarily protect French users.
Fletcher concludes with the following, implicitly addressing Yahoo's issue that they were still allowing the sale of Mein Kampf in violation of the French orders:
These issues led to the declaration of non-ripeness.
This is a JURISDICTIONAL
case that was left undecided, officially, though the 9th Circuit
certainly hinted that France did not have authority to demand
restrictions on US speech.
At about the same time, there was growing improvement in advertising-based geolocation software (IP addr -> location); the earlier blocking estimates rose from 70% to well over 90%.