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" 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 (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
Yahoo offered nazi memorabilia for sale on its auction site. They were sued by LICRA (LIgue Contre le Racisme et l'Antisémitisme)
(This is a JURISDICTIONAL case that probably should be discussed elsewhere, except that it addresses a free-speech issue.)
French courts decided they did have jurisdiction to hear the case. But Yahoo has no assets in France!
Appellate US court (9th circuit), en banc, held that the US might have jurisdiction in the reverse case against LICRA (and UEJF). BUT the case was directed to be "dismissed without prejudice", as it's not yet ready to be decided. It was not "ripe".
(same thing happened to US v Warshak, when the 6th circuit en banc ruled the case was not "ripe")
Yahoo was asking a US court to assert that France had no authority. The 9th circuit refused to do that. Yet.
Judge William Fletcher:
Part of the issue: Yahoo was not able to point to any speech of its own that was "chilled" by the French decision. Yahoo did adopt an anti-hate-speech policy.
The court did not address the notion that the only way to restrict access in France would be to restrict access in the US.
These issues led to the declaration of non-ripeness.
This is a JURISDICTIONAL case that was left undecided
At about the same time, there was growing realization that advertising-based geolocation software (IP addr -> location) was better than sometimes understood, and that by using such software it was possible to block apperarance in France (at least to 90% of users).
Yahoo never really implemented this; they decided instead to ban all "hate material", everywhere. This includes KKK memorabilia.
We kind of omitted this, but it's a real nuts-and-bolts example,
where, like with store cards, we agree
to give up information, but unlike store cards the information has real
power over us.
What if we're offered a DRM
per-view (or per-listen) option, with licensing verified over the
Internet?
That would mean that whoever was doing the licensing would know
exactly what we were watching!
Do we have a problem with that?
What about just some of the time?
What if the alternative were to buy the DVD, but because this scheme
marginalized DVD sales, a DVD now cost ~$35?
Largely, this strategy seems to have gone nowhere. Is it different at
all from what Netflix already does?
essential problem:
This is a significant issue in the "free speech" of employees. Note
how giving providers an easy way to get libel cases dismissed via
summary judgement makes this strategy for corporations much more
difficult.
See http://www.chillingeffects.org/johndoe/faq.cgi
Note that the issue here is the use of the legal system to
find identities of anonymous posters.
Baase has an extensive section on anonymity.
What about employee bloggers?
Well, is it?
Cases where it's been debated:
For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders".
But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations
Suppose you make F-16 fighters. You need a munitions export permit to sell these oversees. What about if you make open-source encryption software? You need the same kind of permit! Even if you GIVE IT AWAY!!
BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with the RSA encryption algorithm on it.
Zimmermann case
Phil Zimmermann released PGP ("Pretty Good Privacy") as an open-source project in the early 90's. The gov't made him promise not to do it again. Zimmermann's associates outside the US released the next version. Zimmermann was under indictment for three years, but charges were eventually dropped.
Schneier case
Bruce Schneier wrote a textbook on cryptography. All the algorithms were printed, and also included on a FLOPPY in the back of the book. Phil Karn applied for an export license for the package. It was granted for the book, denied for the floppy.
Bernstein case
Daniel Bernstein created a cipher called "snuffle". In 1995 he sued to be allowed to post it to a course website. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher:
http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html
Prior-restraint was one issue
Bernstein's right to speak is the issue, not foreigners' right to hear
But does source code qualify? see p 4232: C for loop; 4233: LISP
Snuffle was also intended, in part, as political expression.
Bernstein discovered that the ITAR regulations controlled
encryption exports, but not one-way hash functions. Because
he believed that an encryption system could easily be fashioned
from any of a number of publicly-available one-way hash functions,
he viewed the distinction made by the ITAR regulations as absurd.
To illustrate his point, Bernstein developed Snuffle, which
is an encryption system built around a one-way hash function.
(Arguably, that would now make Snuffle political
speech, generally subject to the fewest restrictions!)
Here is Judge Fletcher's main point:
Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.
Government argument: ok, source code might be expressive, but you can also run it and then it does something: it has "direct functionality"
Fletcher: source code is meant,
in part, for reading.
More importantly, the idea that it can be banned due to its "direct
functionality" is a problem:
what if a computer could be ordered to do something with spoken
commands?
Would that make speech subject to restraint? In some sense absolutely yes; if speech became
action then it would be, well, actionable
(that is, something that could be legally prohibited).
In 1999, the full 9th circuit agreed to hear the case; it was widely expected to make it to the supreme court.
But it did not. The government dropped the case.
Junger v Daley
Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students.
6th circuit:
The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection.
Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.
BUT: there's still a recognition of the need for balancing:
We recognize that national security interests can outweigh the interests of protected speech and require the regulation of speech. In the present case, the record does not resolve whether ... national security interests should overrule the interests in allowing the free exchange of encryption source code.
DeCSS case
There are several; the best known is Universal Studios
v Reimerdes, Corley, and Kazan.
Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine.
Corley:
DeCSS was developed in ~1999, supposedly by Jon Lech Johansen. He wrote
it with others; it was released in 1999 when Johansen was ~16. He was
tried in Norway in 2002, and was acquitted.
Judge Kaplan memorandum, Feb 2000, in Universal v Reimerdes:
As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.
He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side.
The computer code at issue in this case does little to serve
these goals [of expressiveness]. Although this Court has assumed
that DeCSS has at least some expressive content, the expressive
aspect appears to be minimal when compared to its functional component.
Computer code primarily is a set of instructions which, when read
by the computer, cause it to function in a particular way, in this
case, to render intelligible a data file on a DVD. It arguably
"is best treated as a virtual machine . . . ."
[the decision cites Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, Duke Law Journal 1998. However, the sentence in Lemley and Volokh's paper explicitly refers to executable object code, not source! "The Bernstein court's conclusion, even if upheld, probably doesn't extend past source code to object code, however. We think most executable software is best treated as a virtual machine rather than as protected expression." Judge Kaplan apparently did not grasp the distinction.]
Note that this virtual-machine argument renders irrelevant the Bernstein
precedent! Actually, the virtual-machine argument pretty much presupposes that you have come down
solidly on the side of code-as-function instead of code-as-expression.
Also note the weighing of expression versus functionality, with the
former found wanting.
Do you think that Judge Kaplan was stricter here than in the crypto
cases because crypto was seen as more "legitimate", and deCSS was
clearly intended to bypass anticircumvention measures?
The district court issued a preliminary injunction banning 2600.com from hosting DeCSS; the site then simply included links to other sites carrying it.The final injunction also banned linking to such sites, and included language that equated linking with trafficking.
The Appellate decision was similar, though with somewhat more on the
constitutional issues, and an additional twist on linking. Also, note
that one of Corley's defenses was that he was a journalist, and
However, in full context, that idea was harder to support.
Both the DC and Appellate courts held that the DMCA targets only the "functional component" of computer speech.
One argument was that the CSS encryption makes Fair Use impossible,
and that therefore the relevant section of the DMCA should be struck
down. The appellate court, however, ruled instead that"Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the "fair use" of information just because that information was obtained in a manner made illegal by the DMCA".
This is an interesting argument by the court!
Some notes on the free-speech argument:
The court also acknowledged Junger v Daley (above).
However:
That is, the DeCSS code may be said to be "expressive speech", but it's not being banned because of what it expresses.
As for hyperlinks (in the section "Linking"),
What if one simply printed the site name, without
the link: eg cs.luc.edu? For links, one can argue that the expressive
and functional elements -- what the other site is, and how to get there
-- are inseparable.
Gallery of DeCSS: http://www.cs.cmu.edu/~dst/DeCSS/Gallery
Check out these in particular:
Does the entire gallery serve to establish an expressive purpose?
If you want to play DVDs under linux, I recommend VLC Media Player at http://videolan.org/vlc (which generally needs libdvdcss).