Ethics, Week 8

spam

1996: aol v Cyber Promotions (Baase, p 161)
Note that CP sued aol for blocking CP's spam! Eventually AOL sued CP.

Intel-Hamidi case: Ken Hamidi sent email to 30,000 intel employees. Intel sued. It eventually reached the California Supreme Court, who ruled in Hamidi's favor.

Harris Interactive sued the Mail Abuse Prevention System, for blocking their opinion-poll email. One interesting claim by Harris is that they were "turned in" to MAPS by a competitor. Harris dropped the suit.

CAN-SPAM act

People have a right to send email. Sort of. Maybe not companies, though.

Regulated classes of speech

All these categories are things that, once upon a time, private individuals seldom if ever got caught up in.

p 166: Commodity-Futures Trading Commission (CFTC): they required that, if you wrote about commodity futures, you needed a license. The regs were originally intended to cover traders, but CFTC applied them to newsletters too, and then the web. (These latter rules were deleted in 2000.)

New York State outlawed not only the direct sale of wine from out-of-state-wineries to New Yorkers, but also the advertising. What about web pages?

p 176: political campaign laws. Anything you do that is "coordinated" with a political campaign is considered to be a contribution. These are subject to limitations, and to reporting requirements.

McCain-Feingold: you cannot even mentioning a candidate's name or face within 60 days of an election.

In 2004, the Federal Election Commission was ordered by a judge to write rules extending the McCain-Feingold rules to the Internet.

How would this affect bloggers? Would they be silenced?

Note that the opposing candidates are VERY likely to file complaints.

2006 FEC rules on the internet: it's ok as long as you aren't paid, EVEN IF political activity is "in coordination with" the candidate.

2007: Supreme court struck down the McCain-Feingold restriction on issue ads.

Home selling: if you list your house online, do you need a real-estate license?

Section 230 odds and ends

There is still some question though about what happens if you do actively select the material. Cremers played a very limited editorial role. What if you go looking for criticism of someone and simply quote all that? And what if you're a respected blogger and the original sources were just Usenet bigmouths?

EFF: One court has limited Section 230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...."

Be wary, too, of editing that changes the meaning. Simply deleting some statements that you thought were irrelevant but which the plaintiff thought were mitigating could get you in trouble!

Jane Doe acting on behalf of Julie Doe, her minor daughter She was 13 when she created a myspace page, 14 when she went on a date with someone age 19 who then assaulted her. On the face of it, Doe claims that the suit is about MySpace failing to protect children, or for failing to do SOMETHING. But the court held that it's really about lack of liability for Julie Doe's posting. Note that this isn't libel law at all. The court argued that:

It is quite obvious that the underlying basis of Plaintiff's claims is that, through postings on MySpace, *** and Julie Doe met and exchanged personal information which eventually led to ... the sexual assault.

Therefore the case is in fact about publication, and therefore MySpace is immune under Section 230.

Brief overview of McLibel case

A selected few "sucks" sites. Search for (large company name) + "sucks" to find more.

The McLibel case

Unemployed ex-postman Dave Morris and part-time bar worker Helen Steel called McDonald's a multinational corporate menace - abusing animals, workers and the environment and promoting an unhealthy diet.
http://www.organicconsumers.org/mclib.html

[NB: why are Morris & Steel identified above by their occupations?]

They were distributing pamphlets claiming:

• mcDonalds land use led to displacement & hunger for third-world farmers
  
• locals starve while food crops are exported for use as animal feed
  
• rainforest destruction
  
• destruction of tribal lifestyles in rainforest
  
• mcdonalds food is high in fat
  
• encourages overeating
  
• encourages children to think McD's is "normal"
  
• hamburgers are made of dead animals
  
• unions are not allowed

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 (discussed previously)

Rachel Ehrenfeld wrote Funding Evil, a rather polemical book about how terrorist organizations gain funding through drug trafficking and other illegal strategies. 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).

gatt.org, and cyberhoaxes

(compare wto.org)

Is this funny? Or serious? Are there legitimate trademark issues?

Note that it keeps changing.

Planned Parenthood v American Coalition of Life Activists

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 "Nuremberg" site 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
Archived site of Horstley's own before-and-after: cs.luc.edu/pld/ethics/nuremberg/californicate.htm

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.

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.

Here's a good site with background information 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 (of PP 3-judge PP v ACLA), 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 situation: 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 actions were "political speech" and not an incitement to imminent lawless action. Posters have no explicitly threatening language!

7106/26, end of 1st paragraph: Further, ACLA submits that classic political speech cannot be converted into non-protected speech by a context of violence that includes the independent action of others.

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."

Held to be political hyperbole. Overturned long precedent regarding threats.

Particular attention to NAACP v Claiborne. Distinction: there was no 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.

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 posters are a true threat because, like Ryder trucks or burning crosses, they connote something they do not literally say, yet both the actor and the recipient get the message.

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. 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.

Hit Man

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.

To find it, google "hit man" "rex feral", or search Amazon.com.

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:

• publishing advice on how to make illegal drugs
  
• publishing advice on how to cheat on your taxes

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?

Check out amazon.com for current prices of used editions.

Other bad materials: Encyclopedia of Jihad Bomb-making instructions generally

Note EofJ has significant political/religious component!

4th-circuit opinion: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/rice.html

Also see paladinpress.com

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