In 1996 Congress passed the Communications Decency Act (CDA) (Baase p 151). It was extremely broad.
From the CDA:
WHICH COMMUNITY?
On the internet, you cannot tell how old someone is.
Butler v Michigan, 1957: SCOTUS struck down a law making it illegal to sell material (pornography) in Michigan solely because it might be harmful to minors.
CDA was widely viewed as an attempt by Congress to curry favor with a "Concerned Public", but knowing full well it was unlikely to withstand court scrutiny.
It did not. The Supreme Court ruled unanimously
in 1997 that the censorship
provisions were not ok: they were too vague and did not use the
"least-restrictive means" available to achieve the desired goal.
Child Online Protection Act (COPA), 1998: still stuck with
"community standards" rule. The law also authorized the creation of a
commission; this was the agency that later wanted some of google's
query data. The bulk of COPA was struck down.
CIPA: Child Internet Protection Act, 2000 (Baase, p 158) Schools that want federal funding have to install filters.
Filters are sort of a joke, though they've gotten better.
However, they CANNOT do what they claim.
They pretty much have to block translation sites and all "personal"
sites,
as those can be used for redirection. See peacefire.org.
And stupidcensorship.com.
SCOTUS upheld CIPA in 2003.
The Chicago Public Library gave up on filters, but did install screen covers that make it very hard for someone to see what's on your screen. This both protects patron privacy AND protects library staff from what might otherwise be a "hostile work environment".
Baase has more on the library situation, p 157
One piece of the CDA survived: §230:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. [Wikipedia]
Why is this there?
Note that there is no limit of §230 to any particular
area of law, eg libel. (Actually, there are limits if the issue is copyright law, or criminal law.)
Note also that §230 addresses "publisher" liability and "author"
liability. Another form, not
exempted, is "distributor" liability.
The actual law is here: http://www.law.cornell.edu/uscode/47/usc_sec_47_00000230----000-.html.
Note in particular sections (e)(1) and (e)(2).
District court only, New York State (Does anyone remember compuserve?) Giant pre-Internet BBS available to paid subscribers. The "rumorville" section, part of the Journalism Forum, was run by an independent company, Don Fitzpatrick Associates. Their contract guaranteed DFA had "total responsibility for the contents". Rumorville was in essence an online newspaper; essentially it was an expanded gossip column about the journalism industry. I have no idea who paid whom for the right to be present on CompuServe.
1990: Cubby Inc and Robert Blanchard plan to start a competing online product, Skuttlebut. This is disparaged in Rumorville. Cubby et al sue DFA & Compuserve for libel.
Compuserve argued they were only a distributor; they escaped liability. In fact, they escaped with Summary Judgement! The court ruled that they had no control at all over content. They are like a bookstore, or a distributor.
While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents. This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe.
CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.
It was and is generally accepted that distributors have no liability for content (unless it can be proven that they encouraged the content).
(we'll come back to "distributor liability" later.)
Stratton Oakmont v Prodigy: New York state court, 1995. On a financial matters forum called "Money Talk," a Prodigy user (never identified) posted about Daniel Porush, the president of Stratton Oakmont, a financial services company. The remarks called Porush a "soon to be proven criminal" and that Stratton Oakmont was a "cult of brokers who either lie for a living or get fired"
Prodigy claimed the Compuserve defense in their motion for summary judgement.
Prodigy lost, because they promised to monitor for bad behavior on the board. At the very least, they CLAIMED to the public that they reserved the right to edit or remove messages. This was in fact part of Prodigy's family-oriented marketing. Prodigy was trying to do "family values" editing (including the deletion of profanity), and it cost them.
In legal terms, Prodigy was held to "publisher liability" rather than the weaker "distributor liability" because they CLAIMED to exercise editorial judgement.
Prodigy did have some internal confusion about whether they were for the "free expression of ideas" or were "family safe"
Prodigy's policy was to ban individual attacks, but not group attacks; anti-semitic rants did appear and were not taken down.
After Prodigy lost their motion for summary judgement, the case was
settled; Prodigy issued a public apology. In Wall Street versus America by Gary Weiss, the claim is
made
that the settlement did not involve the exchange of money. See http://books.google.com/books?id=iOhGkYqaEdwC&pg=PA213&lpg=PA213&dq=wall+street+versus+america+porush&source=b...t=result,
page 215: "No money changed hands. No money had to change hands."
Weiss also points out that four years later
Enter the CDA. §230 was intended to encourage
family-values editing, because after the Stratton Oakmont case most
providers were afraid to step in.
Whether this was specifically to encourage providers to remove profanity & obscenity, the nominal targets of the CDA, or whether it was just a compensatory free-speech-positive clause in an overall free-speech- very-negative law is not clear.
Most of Congress apparently did not expect the CDA to withstand judicial scrutiny.
Congressional documents suggest fixing Stratton Oakmont precedent was the primary purpose of §230. However, arguably the reason for fixing Stratton Oakmont was to protect ISPs and websites that did try to provide a "family-friendly" environment.
He claims:
Smith had a dispute with Batzel [either about payments for work, or about Batzel's refusal to use her Hollywood contacts to help Smith sell his movie script].
Smith sent his allegations about Batzel in an email to Ton Cremers, who ran a stolen-art mailing list. Smith found Cremers through a search engine. This is still 1999.
Smith claimed in his email that some of Batzel's paintings were likely stolen by the Nazis. (p 8432 of the decision, Absolute Page 5)
Smith sent the email to securma@museum-security.org
Cremers ran a moderated listserv specializing in this. He included Smith's email in his next release. Cremers exercised editorial control both by deciding inclusion and also by editing the text as necessary.
He included a note that the FBI had been notified.
Normal address for Cremer's list was: securma@x54all.nl
Smith's emailed reply to someone when he found out he was on the list:
I [was] trying to figure out how in blazes I could have posted me [sic] email to [the Network] bulletin board. I came into MSN through the back door, directed by a search engine, and never got the big picture. I don't remember reading anything about a message board either so I am a bit confused over how it could happen. 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.
Some months later, Batzel found out and contacted Cremers, who contacted Smith, who continued to claim that what he said was true. However, he did say that he had not intended his message for posting.
On hearing that, Cremers did apologize to Smith.
Batzel disputed having any familial relationship to any Nazis, and stated the artwork was not inherited.
Batzel sued in California state court:
Cremers filed in Federal District Court for:
He lost on both counts. (Should he have? We'll return to the
jurisdiction one later. Jurisdiction is a huge issue in libel law!)
He then appealed the federal issue (anti-SLAPP, jurisdiction) to the Ninth Circuit, which simply
ruled that §230 meant Batzel had no case. (Well, there was one factual
determination left for the District Court, which then ruled on that
point in Cremers' favor.)
This was the §230 case that set the (famous) precedent. This is a major case in which both Congress and the courts purport to "get it" about the internet.
IS Cremers like an ISP here? The fact that he is editing the list he sends out sure gives him an active role, and yet it was Prodigy's active-editing role that the CDA §230 was arguably intended to protect.
Why does Communications Decency Act have such a strong free-speech component? Generally free speech is something the indecent are in favor of.
The appellate case was heard by the Ninth Circuit (Federal Appellate
court in CA, other western states); a copy is at http://cs.luc.edu/pld/ethics/BatzelvCremers.pdf.
(Page
numbers in the sequal are as_printed/relative).
Judge Berzon:
[Opening (8431/4)] There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else.
Note the up-front recognition that this is due to Congress.
Section 230 was first offered as an amendment by Representatives Christopher Cox (R-Cal.) and Ron Wyden (D-Ore.). (8442/15)
Congress made this legislative choice for two primary reasons. First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce. (8443/16) ...
(Top of 8445/18) The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material
[extensive references to congressional record]
(8447/20): In particular, Congress adopted § 230(c) to overrule the decision of a New York state court in Stratton Oakmont, 1995
Regarding question of why a pro-free-speech clause was included in an anti-free-speech law (or, more precisely, addressing the suggestion that §230 shouldn't be interpreted as broadly pro-free-speech simply because the overall law was anti-free-speech):
(8445/18, end of 1st paragraph): Tension within statutes is often not a defect but an indication that the legislature was doing its job.
The District court limited this to ISPs. The Circuit court argued that (a) Cremers was a provider of a computer service, and (b) that didn't matter because he was unquestionably a USER.
8450/23, at [12] Critically, however, § 230 limits immunity to information "provided by another information content provider."
Here's one question: was Smith
"another content provider"?
You can link and host all you want, provided others have created the
material for online use. But if Smith wasn't a content provider, then Cremers becomes the originator.
The other question is whether Cremers was in fact partly the "provider",
by virtue of his editing. Note, though, that the whole point of §230 is to allow (family-friendly) editing.
Answer to first question:
8450/23, 3rd paragraph: Obviously, Cremers did not create Smith's e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers's minor alterations of Smith's e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of "development."
More generally, the idea here is that there is simply no way to extend immunity to Stratton-Oakmont-type editing, or to removing profanity, while failing to extend immunity "all the way".
Is that actually
true? [class discussion]
The Court considers some other partial interpretations of §230, but finds they are unworkable.
Second point:
8584/27, 3rd paragraph
Smith's confusion, even if legitimate, does not matter, Cremers
maintains, because the §230(c)(1) immunity should be
available simply because Smith was
the author of the e-mail,
without more.
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. [emphasis
added]
The case was sent back to district court to determine this point
(which it did, in Cremer's favor).
8457/30, at [19] We therefore ... remand to the district court for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail. If Cremers should have reasonably concluded, for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the §230(c) immunities.
Judge Gould partial dissent in Batzel v Cremers:
Quotes:
The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended.
(1) the defendant must be a provider or user of an "interactive computer service"; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be "information provided by another information content provider."2 The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element.3
Majority: part (3) is met if the defendant believes this
was the author's intention. Gould: This
is convoluted!
Why does the author's intention
matter?
Below, when we get to threatening speech, we will see that the issue there is not the author's intention so much as a reasonable recipient's understanding.
The problems caused by the majority's rule would all vanish
if we focused our inquiry not on the author's [Smith's] intent,
but on the defendant's [Cremers'] acts
[pld: emphasis added here and in sequel]
So far so good. But then Gould shifts direction radically:
We should hold that the CDA immunizes a
defendant only when
the defendant took no active
role in selecting the questionable
information for publication.
How does this help Prodigy with family-friendly editing or Stratton-Oakmont non-editing? Why not interpret (3) so the defendant is immunized if the author did intend publication on internet?
Gould: A person's decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person's imprimatur to it
No doubt about that part. But Congress said that chat rooms, discussion boards, and listservs do have special needs.
And why then add the "and users" lanuage to the bill? These aren't users.
Gould:
If Cremers made a mistake, we should not hold that he may escape all
accountability just because he made that mistake on the Internet.
Should this liability be there, in light of §230? Does §230 mean
that a company cannot be found liable as publisher or speaker for email
created by employees?
Arguably, the main issue here is a "hostile work environment", which
is a none-of-the-above in terms of publisher, author, or distributor
liability. This is an important point regarding the extent of §230
immunity. Companies are not being found liable as publisher or author,
but rather for "tolerating" the authorship.
Since this case, there have been MANY others decided by application of this decision. See eff.org's section on Free Speech, http://www.eff.org/issues/free-speech.
There have also been many attacks on §230 immunity. Some limitations may come, someday.
Publisher liability (except when eliminated by §230) exists even without knowledge of defamatory material's inclusion:
Distributor liability is not exempted by §230. It is liability for knowingly
distributing defamatory material. However, in Zeran v AOL (below), the courts
found that prior notice doesn't automatically make for distributor
liability.
Most likely approach to attack §230 immunity (2007): distributor liability.
There have been attacks on the §230 defense, but courts have been unwilling to date to allow exceptions, or to restrict coverage to "traditional ISPs" where there is zero role in selection of the other material being republished.
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 §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!
This was a §230 case that expanded the rules to include at least some distributor liability.
Someone posted a fake ad for T-shirts with tasteless slogans related to the Oklahoma City bombing, listing Kenneth Zeran's home number. Zeran had nothing to do with the post (although it is not clear whether the actual poster used Zeran's phone intentionally). For a while Zeran was getting hostile, threatening phone calls at the rate of 30 per hour.
Zeran lost his initial lawsuit against AOL.
Zeran appealed to the 4th circuit, arguing that §230 leaves intact "distributor" liability for interactive computer service providers who possess notice of defamatory material posted through their services.
Publisher liability: liability even without knowledge of defamatory material's inclusion:
Distributor liability: liability for knowingly distributing defamatory material
Zeran argued that AOL had distributor liability once he notified them of the defamatory material.
Zeran lost. In part because he "fails to understand the practicalimplications
of notice liabililty in the interactive-computer-service context". The
court also apparently felt that AOL was still acting more as publisher
than distributor, at least as far as §230 was concerned.
Still to be resolved: what if I quote other defamatory speakers on my blog in order to "prove my point"? Batzel v Cremers doesn't entirely settle this; it's pretty much agreed Cremers did not intend to defame Batzel.
There's also the distributor-liability issue left only partly settled in Zeran.
Barrett v. Rosenthal, Nov. 20, 2006: California supreme court affirms
core §230 ruling
Rosenthal posted statements on Internet newsgroups about two doctors who operated Web sites aimed at exposing fraud in alternative medicine. Her posts quoted an allegation by Tim Bolen that one of the doctors engaged in "stalking".
From www.gannett.com/go/newswatch/2006/november/nw1130-3.htm
In the case before the California Supreme Court, the doctor [Barrett]
claimed
that by warning Rosenthal that Bolen's article was defamatory,
she "knew or had reason to know" that there was defamatory content
in the publication. Under traditional distributor liability law,
therefore, Rosenthal should therefore be responsible for the substance
of Bolen's statements, the doctor claimed.
The court rejected the doctor's interpretation, saying that the statute
rejects the traditional distinction between publishers and
distributors,
and shields any provider or user who republishes information online.
The court acknowledged that such "broad immunity for defamatory
republications on the Internet has some troubling consequences,"
but it concluded that plaintiffs who allege "they were defamed
in an Internet posting may only seek recovery from the original
source of the statement."
Barrett could still sue Bolen. But Bolen might not have had any
money, and Barrett would have to prove that Bolen's original email, as distributed by Bolen, was
defamatory. If Bolen sent it privately, or with limited circulation,
that might be difficult.
See also wikipedia article http://en.wikipedia.org/wiki/Barrett_v._Rosenthal
Rosenthal was arguably even more of an Ordinary User than Ton
Cremers.
In Donato [v Moldow], two members of the Emerson Borough Council [New Jersey] sued a Web site operator and numerous individuals after they used pseudonyms when posting on the Web site for "defamation, harassment, and intentional infliction of emotional distress." (74) The appellants argued that Stephen Moldow, the website operator, was liable for the damages because he was the publisher of the website. (75) Much to their chagrin, the trial judge found that Moldow was immune from liability under the Communications Decency Act, (76) and the appellate court agreed. (77) The court reasoned that:
The allegation that the anonymous format encourages defamatory and otherwise objectionable messages 'because users may state their innermost thoughts and vicious statements free from civil recourse by their victims' does not pierce the immunity for two reasons: (1) the allegation is an unfounded conclusory statement, not a statement of fact; and (2) the allegation misstates the law; the anonymous posters are not immune from liability, and procedures are available, upon a proper showing, to ascertain their identities. (78)
Note that Moldow was merely the operator here; he was not doing anything to select content.Jane Doe v MySpace: §230 applies to liability re physical harm
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.
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.
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.
2010: Supreme Court struck down most remaining restrictions on corporate speech
Home selling: if you list your house online, do you need a real-estate license?
A
selected few "sucks" sites. Search for (large company name) + "sucks"
to find more.
| mcspotlight.org |
mclibel |
| uopsucks.com
(university of phoenix) |
placeholder site, but see here |
| walmartsucks.com |
placeholder site |
| walmartsucks.org |
you betcha! |
| gmsucks.net |
domain lookup error |
| lyingscumbags.com |
Ah, but there are anti-GM sites! |
| fordREALLYsucks.com |
going strong! |
| intelsucks.org |
weird site; maybe just humor? |
| ibmsucks.org |
active! |
| microsoftsucks.org |
tied to applesucks.org |
| applesucks.org |
tied to microsoftsucks.org |
| linuxsucks.com |
placeholder |
| linuxsucks.org |
can't connect |
| whylinuxsucks.org |
a serious site on linux
improvement |
[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 (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).
(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".
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 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 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."
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 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, 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