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Free speech restored
This column originally ran in ComputorEdge on May 4, 2001
(Issue 1918, Online Tools)
It turns out that maybe, just maybe, the First Amendment's guarantee of free speech isn't as endangered online as it once appeared.
While free speech online has been under attack from abroad almost since the Internet was first made public in the late '80s, a jury decision two years ago to punish anti-abortion activists for using a Web site to identify doctors who perform abortions was the most serious restriction of online speech since President Clinton signed the ill-fated Communications Decency Act.
Fortunately for the ability of citizens to freely speak their minds online, the above restriction has now been tossed out. (The Supreme Court almost immediately struck the CDA down as unconstitutional.) A federal appeals court has unanimously overturned a lower court verdict against the creators of The Nuremberg Files web site. Planned Parenthood had sued the activists who hosted the site, claiming it was a form of terrorism. The trial jury agreed, and awarded Planned Parenthood more than $100 million in damages.
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Nowhere on the anti-abortion web site in question – called The Nuremberg Files – did the authors advocate specific acts of terrorism or murder. Both sides in the lawsuit agreed on that point. It did refer to those who perform abortions as "butchers" and argued passionately that they areguilty of crimes against humanity – calling for an international tribunal to try them on such charges, a la the Nuremberg trials held after World War II to try Nazi war criminals.
What Planned Parenthood seemed to object to was the listing of the names and addresses of those who perform abortions. Given the spate of murder and attempted murder against abortion providers, Planned Parenthood argued that listing their addresses was tantamount to aiding and abetting in their assassination (which is what politically motivated murder really is).
Now, whatever one's position on abortion, what was patently clear to free speech activists was that if the original verdict were held up, controversial speech across the political spectrum would take a vicious beating.
If calling abortion providers "baby butchers" could be made illegal, it wouldn't take much more to get a jury to find all kinds of speech illegal. The belief of some animal rights activists that eating meat is murder could be considered terrorism against hunters or farmers – or anyone who stops by McDonald's on the way home. Those who oppose the death penalty would have to be wary of denouncing the practice as "state-sponsored murder" or risk having themselves sued by wardens and prison guard unions.
Or to flip the issue completely on its head, we could see massive fines against pro-choice activists who argue that extreme pro-life rhetoric leads to murder against abortion providers. Terrorism against pro-lifers, right? After all, if we call people murderers because we don't agree with their position on abortion, well, that might encourage unstable members of our movement to lose control and go kill the opposition.
It's a ludicrous argument, and the shame of it all is that a trial judge bought into it.
While Planned Parenthood promises to appeal, recent Supreme Court rulings in favor of free speech – rulings the appellate court deferred to in its unanimous decision – have held that speech can only be banned (or punished, as in this case, which was in civil court) if it is clearly a threat and likely to have the result of "imminent lawless action."
The Nuremberg Files were clearly in poor taste and utterly lacking in the Christian charity they claimed as the basis for their message.
But what The Nuremberg Files were not was illegal – and for that, all of us who believe in an unfettered and lively Internet should thank the judges on the appeals court.