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The "True Threat" to Cyberspace: Shredding the First Amendment for Faceless Fears

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The THE "TRUE THREAT" TO CYBERSPACE: SHREDDING THE FIRST AMENDMENT FOR FACELESS FEARS Robert D. Richards* Clay Calvert** "If there is a bedrock principle underlying the First thoughts whirling together to form a truly "unin- Amendment, it is that the government may not prohibit 4 the expression of an idea simply because society finds hibited, robust, and wide-open" marketplace of 1 the idea itself offensive or disagreeable." ideas. That notion ended abruptly in February, When the late Justice William J. Brennan, Jr. 1999 when a Portland, Oregon jury ordered over wrote that passage in 1989, admonishing the $100 million dollars in damages against the cre- 5 Texas state legislature to avoid passing a flag-dese- ators of an anti-abortion World Wide Web site, cration thus triggering the next major battle over just how law simply because citizens there objected 6 7 to burning the national symbol as a form of pro- much protection speech in cyberspace deserves. test, he reminded the nation that the Constitution was not created to reflect the current conscious- FREEDOM OF SPEECH V. FREEDOM ness of the majority. Indeed, the powerful nature OF CHOICE of the First Amendment 2 lies in safeguarding mi- nority viewpoints, which at times can be distasteful Like so many constitutional skirmishes before to mainstream society but should co-exist to en- it, this one presents some unsavory elements, such 3 sure a vigorous national discourse. as graphic images of botched abortions and fetal For a time, the internet appeared to provide a parts." However, the more pernicious political in- safe haven for both mainstream and radical vective found on the challenged web site-The * Associate Professor of Journalism & Law and Co- 4 New York Times Co. v. Sullivan, 376 U.S. 254, 270 Director of the Pennsylvania Center for the First Amendment (1964). at the Pennsylvania Center for the First Amendment at The 5 See Rene Sanchez, Doctors Win Suit over Antiabortion Web Pennsylvania State University. B.A., 1983, M.A., 1984, Site, WASH. POST, Feb. 3, 1999, at Al (describing the jury's Communications, The Pennsylvania State University; J.D., decision against the Nuremberg Files web site). 1987, The American University. Member, State Bar of 6 "Cyberspace, originally a term from William Gibson's Pennsylvania. science-fiction novel Neuromancer, is the name some people ** Assistant Professor of Communications & Law and Co- use for the conceptual space where words, human relation- Director of the Pennsylvania Center for the First Amendment ships, data, wealth, and power are manifested by people us- at the Pennsylvania State University. B.A., 1987, ing CMC [computer-mediated communication] technology." Communication, Stanford University; J.D. (Order of the HowARD RHEINGOLD, THE VIRTUAL COMMUNITY 5 (1993). Coif), 1991, McGeorge School of Law, University of the 7 The primary free speech battles fought in cyberspace Pacific; Ph.D., 1996, Communication, Stanford University. involve protecting children from sexually explicit speech. See Member, State Bar of California. Reno v. ACLU, 521 U.S. 844 (1997) (striking down the Com- 1 Texas v. Johnson, 491 U.S. 397, 414 (1989). munications Decency Act as violating the First Amendment); 2 The First Amendment to the United States Constitu- Mainstream Loudoun v. Bd. Trustees of Loudoun County Li- tion provides in relevant part that "Congress shall make no brary, 24 F. Supp.2d 552 (E.D. Va. 1998) (striking down a law abridging the freedom of speech or of the press." U.S. government policy involving filtering software to prohibit ac- CONST. amend. I. The Free Speech and Free Press Clauses cess of library patrons to content-based categories of internet are incorporated through the Fourteenth Amendment Due publications). For instance, in February, 1999, a federal Process Clause to apply to state and local governments. U.S. judge in Philadelphia issued a preliminary injunction barring CONST. amend. XIV; Gitlow v. New York, 268 U.S. 652, 666 enforcement of the Child Online Protection Act, passed by (1925). Congress in 1998 to make it illegal for commercial web site 3 See ROBERT D. RICHARDS, FREEDOM'S VOICE: THE PERIL. operators to make material deemed harmful to minors avail- OUS PRESENT AND UNCERTAIN FUTURE OF THE FIRST AMEND- able to individuals under seventeen years of age. Pamela MENT 77 (1998) (observing that "[t]he original intent and Mendels, Setback for a Law Shielding Minors from Smut Web Sites, purpose of the First Amendment was to protect minority N.Y. TIMES, Feb. 2, 1999, at A12. viewpoints" that often are unpopular). 8 The site includes "a photograph of what seem to be COMMLAW CONSPECTUS [Vol. 7 Nuremberg Files-includes additional chilling in- about abortion doctors. Varying type fonts and gredients: names, addresses, photographs, and li- colors designated whether a particular physician cense plate numbers of those who aid the cause of on the list of over 200 was still alive, wounded or abortion and their family members, making it ap- dead.1 6 The names of attorneys, judges, politi- pear as a virtual hit list for the violently inclined. 9 cians, and celebrities unsympathetic to the anti- 7 Doctors who perform abortions are dubbed "baby abortion cause appeared on the site as well.' butchers."10 Planned Parenthood of Columbia/Willamette, For the pro-choice activists who filed the law- Inc., along with several physicians who perform suit,11 the message of the web page was clear. Glo- abortions, alleged that the disputed web site vio- ria Feldt, president of the Planned Parenthood lated the 1994 Freedom of Access to Clinics En- Federation of America, issued a statement shortly trances Act.18 This federal law prohibits, among after the verdict declaring, "Whether these threats other things, the threat of force that intimidates are posted on trees or on the internet, their intent or interferes with individuals or groups seeking and impact is the same: to threaten the lives of access to abortion clinics. 19 The language makes doctors who courageously serve women seeking to clear, however, that the Act shall not be construed exercise their right to choose abortion."12 Even "to create new remedies for interference with ac- U.S. District Court Judge Robert Jones instructed tivities protected by the free speech or free exer- the eight jurors to consider the violence against cise clauses of the First Amendment to the Consti- abortion doctors in recent times and use their tution, occurring outside a facility, regardless of common sense to determine if the site was threat- the point of view expressed."20 The messages on 1 3 ening. the Nuremberg Files site contained no explicit The web page, created by Neal Horsley of Car- threat of, or direct incitement to, violence, raising rollton, Georgia1 4 and maintained by anti-abor- the question of whether new remedies were in- tion advocates including defendants American deed construed by the jury in its application of Coalition of Life Activists and Advocates for Life this law. If no explicit threat was made against Ministries, 15 solicited site visitors for information abortion doctors on the web page, the question aborted limbs, with cartoon blood dripping from it." DebraJ. summary judgment as to the bumper sticker and several pos- Saunders, Pro-Life Murder Inc., S.F. CHRON., at A7. The site is ters but the dispute over whether the Nuremberg Files web illustrated "with dripping blood from a collage of fetuses." page violated the Freedom of Access to Clinic Entrances Act Threatening Speech, SACRAMENTO BEE, Feb. 11, 1999, at B6. was allowed to proceed to trial. Id. at 1195. 9 See Lawrence Viele, Of Free Speech, Abortions and Dead 12 Sam Howe Verhovek, Creators of Anti-Abortion Web Site Doctors, RECORDER, Feb. 11, 1999, at 1. Told to Pay Millions, N.Y. TIMES, Feb. 3, 1999, at A9. 10 Jules Crittenden, Jury Clamps Down on Anti-abortion Web '3 See Carl Rowan, A Deadly Abuse of the First Amendment, Site, BOSTON HERALD, Feb. 3, 1999, at Al. After the Oregon BUFFALO NEWS, Feb. 9, 1999, at B3. jury's decision, the controversial web page was shut down by 14 See McMahon, supra note 10, at 2A. MindSpring Enterprises, an Atlanta-based internet service 15 See Saunders, supra note 8, at 7. provider. Patrick McMahon, Anti-abortion Site Kicked Off Web, 16 The site "crossed off the names of those murdered USA TODAY, Feb. 8, 1999, at 2A. A MindSpring executive an- and shaded over those who were wounded." Kim Murphy, nounced that it was determined that the site "was not consis- Jury Says Web Site Threatens Safety of Abortion Doctors, BUFFALO tent with our appropriate use policy." Id. The site, however, NEWS, Feb. 3, 1999, at Al. did not disappear for long. It resurfaced within a matter of 17 Saunders, supra note 8, at 7. weeks on a computer server in the Netherlands. Karen 18 See 18 U.S.C. § 248. See Planned Parenthood v. Ameri- Kaplan, Technology Shuttered Antiabortion Site Surfaces on Dutch can Coalition of Life Activists, 23 F. Supp.2d 1182 (D. Or. Server, L.A. TIMES, Feb. 23, 1999, at C3. 1998) (involving a motion for summary judgment by the de- 11 The plaintiffs included Planned Parenthood of the fendants in the case that was denied in part and granted in Columbia/Willamette, Inc., Portland Feminist Women's part). Health Center, and five individual physicians who perform 19 The Freedom of Access to Clinic Entrances Act penal- abortions as part of their medical practices. Planned izes anyone who: Parenthood v. American Coalition of Life Activists, 23 F. by force or threat of force or by physical obstruction, in- Supp.2d 1182, 1184-5 (D. Or. 1998). The plaintiffs con- tentionally injures, intimidates or interferes with or at- tended that the Nuremberg Files web page, along with sev- tempts to injure, intimidate or interfere with any person eral printed posters and a bumper sticker urging readers to because that person is or has been, or in order to intimi- execute abortionists, constituted true threats and violated the date such person or any other person or any class of per- Freedom of Access to Clinic Entrances Act of 1994.
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