Free speech, Oliver Wendell Holmes famously declared, ought not to extend to falsely shouting fire in a crowded theater. But what are the limits on shouting across the wide-open Internet? With its mass reach and low publishing cost, the World Wide Web continues to expand and test the frontiers of free expression, and in the first forty-eight hours of February came two judicial decisions that stand like bookends on the growing shelf of cases defining the First Amendment in cyberspace. First, Federal Judge Lowell Reed of Philadelphia issued a preliminary injunction against the Child Online Protection Act, offspring of the ill-conceived Communications Decency Act, which the Supreme Court held to be unconstitutional. Then, on February 2 an Oregon jury awarded $107 million in damages to physicians who sued the publishers of “The Nuremberg Files,” the antiabortion Web site listing names, addresses and other information about abortion providers. One decision reaffirmed free publishing on the Internet; the other held an Internet publisher financially liable for the potentially violent use of information posted on the Web.
Judge Reed’s ruling in the decency case was celebrated on the morning after as a victory for civil liberties, although reality may prove a little more complicated. The Child Online Protection Act, passed by Congress in October, makes it a federal crime for commercial Web sites to post material considered “harmful to minors.” Congress and the Clinton Administration had hoped that narrowing the broad censorship provisions of the Communications Decency Act to child protection claims and the new law’s limitation to commercial publishing would overcome courts’ resistance. But a coalition of free-expression groups, joined by advocates for gays and lesbians, the disabled and others, showed convincingly how the new law would interfere with their educational and artistic Web publishing, and commercial providers complained about the financial burden of developing filtering software on such a mass scale.
Judge Reed ruled that the act’s imposition of censorship may or may not protect children, but it certainly “imposes a burden on speech that is protected for adults.” Instead of government criminalizing Web publication, he held, it is up to parents to provide their own filtering, whether through software or more traditional forms of control. Judge Reed’s ruling is not without its weak links–most notably, the judge takes pains to say that as a grandfather he would welcome some Internet regulation, thus perhaps setting the stage for yet another incarnation of online decency legislation. A Justice Department appeal of Judge Reed’s injunction to a perhaps less First Amendment-friendly court is likely.
The “Nuremberg Files” case is another matter. The conflict between claims of free speech and the civil rights of women seeking abortion has no easy resolution in an atmosphere of threats against clinics and assassinations of physicians like Dr. Barnett Slepian. The “Nuremberg Files” site, with its personal information and “wanted” photos and crossouts through the names of murdered physicians, is clearly a willing participant in the culture of antiabortion extremism. And there are important differences between the civil penalty imposed by the jury on the “Nuremberg” proprietors and the criminal sanctions of the Child Online Protection Act: Nothing in the First Amendment prevents civil penalties for threats once uttered. Abortion rights advocates and some civil libertarians argued that the “Nuremberg” jury had to look beyond the words and images on the site to the “specific intent” of the publishers–to the climate of fear and violence they hoped to feed.
Yet while the antiabortion fringe’s killing spree comes closer than Internet porn to embodying a social and legal threat, the “Nuremberg” decision is deeply troubling. The site contained no explicit threats and no overt advocacy of violence. There was no evidence that the proprietors were part of a network of clinic terrorists. Worrisome parallels are easy to conjure up: union supporters in the midst of a contentious strike posting a list of corporate officers; a peace group posting the home addresses of “war criminals” in the Pentagon. Is the imminent threat of lawless action posed by the “Nuremberg” site any different from that found in the violent-rhetoric-laden newspapers once published by the Weather Underground sympathizers? Indeed, if the antiabortion fringe perceives the safety-valve of free speech to be closed, more people may be attracted to the most extreme propaganda of the deed.
Like the Child Online Protection Act, the “Nuremberg” verdict may have sprung from new publishing technology. But both represent attempts to punish unwelcome speech using the oldest technology of all: the heavy machinery of the state.