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Free speech gains and loses online

Hot on the Web

This column originally ran in ComputorEdge on August 16, 2002
(Issue 2033, Safe and Secure)

Two court cases have recently provided further evidence that not all judges know what to do with the Internet.

Interestingly, while the two cases in hand both revolve around the divisive abortion debate, one court strengthened free speech while another court seems inclined to deal it a rather stinging setback – although that decision is likely to end up at the Supreme Court.

Taking the upside first, a federal judge in Minneapolis ruled in late July that an anti-abortion activist cannot use First Amendment arguments to justify his cybersquatting.

While that may sound like a violation of free speech rights – which is certainly the argument advanced by the defendant, William S. Purdy Sr. – the particulars of the case paint a different picture.

Purdy was registering domain names designed to sound like legitimate corporate or non-profit entities, and then posting anti-abortion messages on those sites.

Now, Purdy surely has every right to state his opposition to abortion (at least for now, as the second case discussed below illustrates) – but under his own name. To do as he did and appropriate the names of existing businesses and organizations and misrepresent their position is not only immoral, but in fact a violation of those groups' free speech rights.

For if free speech means anything, it means the right to freely speak your mind – and thus Pepsi, Coke, the National Organization for Women, the Washington Post and USA Today all have a basic right to proclaim their pro-choice positions. To have someone else using their names to speak on their behalf violates that tenet – particularly when the message proclaimed is the opposite of their true position.

As this case shows, free speech can be muzzled by powers other than the government. By taking domains that were not rightly his and spouting a misrepresentative position, Purdy undermined those organizations' free speech.

So the judge in this instance was correct in ordering Purdy to surrender his illicitly gotten domain names. Purdy is still free to set up any legitimately named web site he wants to proclaim his anti-abortion message – but he should do so honestly, without trying to deceive people.

The other case is an old one and I've written about it before. It involves a Web site known as the Nuremberg Files (, a thuggish little site with all the charm of a steel-toe boot.

However, what the Nuremberg Files lacks in social grace it makes up for in directness – the site argues that the violence of abortion is morally equivalent to the Holocaust, and has argued in favor of an international tribunal to hear a crimes against humanity trial against those who perform/commit (depending on your viewpoint) abortions. To further that end, it also provides a list of those who perform abortions, along with their addresses.

Several years back, Planned Parenthood sued the operators of the Web site, arguing that by listing the names and addresses of those doctors who perform abortions, they were implicitly committing acts of terror against said doctors.

The trial jury agreed with this view, and ordered the owners of the site to pay $100 million in damages.

A three-judge appeals court overturned this decision, ruling that free speech guarantees are meaningless if forceful dissent can be punished for being offensive – and pointing out that the NAACP had used identical tactics (albeit not online) against blacks who patronized white businesses in the 1960s.

So far, so good – at least for those of us who still believe in free speech.

However, last fall, the full court of appeals, in response to a filing by Planned Parenthood, agreed to re-hear the case.

In May, the full appeals court – while deeply divided – upheld the original finding that the Nuremberg Files were not protected free speech – although it ordered the original trial judge to reconsider whether the $100 million judgment was excessive.

The basic thrust of the argument – that listing the doctors' names and addresses is somehow not protected speech – remains intact.

For now.

No further appeals can be filed until the original trial judge make as decision on the fine. At that point, the case seems likely to head for the Supreme Court – which has taken a dim view of any restrictions on political speech.

And for now, the Nuremberg Files remain up.

But how many other political activists – from environmentalists to animal rights activists, gay rights activists to even feminists – have toned down their rhetoric for fear of being sued?

That we'll never know.