Evaluating the Nuremberg Files
The Nuremberg files case is merely the latest in a line of free speech controversies over
electronic media. Although the site and the case deals with the question of abortion, we feel that
it is neither warranted nor necessary to opine on the actual question of abortion and thus will
address only the freedom of speech issues and how they apply to electronic media. The firestorm
surrounding the case exemplifies the kind of controversies that have come to the fore with the
growth of the Web -- although the case was originally about the wanted posters, the Web site
provided much material for Planned Parenthoods case. The fact that the names were stricken
within hours of the shootings was merely more reason for the judges ruling. It seems that the
Web site and wanted posters constituted a clear threat, as they targeted individuals and threatened
them with violence. However, we feel that one must note the ACLUs objection to the ruling,
namely that the site does not advocate imminent violence. This is an important distinction. It is
rare when a court deems it necessary to place restrictions on someones speech. Apparently, the
jury saw that the site and wanted posters constituted an imminent threat to abortion providers,
although no direct evidence was introduced tying the defendants to any acts of violence towards
abortion providers. It is also interesting to note that the jury was instructed to decide with regard
to the Federal Clinic Access Law. The clinic access law provides several restrictions to the
ability of protestors to congregate near abortion clinics, and thus provides a narrower definition
of free speech than traditional First Amendment interpretation. The result of this throws into
question the ability of other courts to use this as precedent in future cases dealing with threats
and free speech.
In dealing with any case such as this, there are several thorny legal issues to deal with.
The novelty of the Internet as a medium for speech means that precedent is being set with little or
no guidance from either the executive or legislative branch. Thus, the lower courts must interpret
past decisions and apply them to the Web. There has been very little effective legislation enacted
to give the courts guidance some attempts have been unconstitutional (like parts of the
Communications Decency Act) while very few have tried to deal with the issues in a meaningful
way. This is partly a result of politicians failure to grasp the complexities that electronic media
have introduced, and partly a fear to tamper with what have been basic rights of Americans for
centuries. This hesitance to make policy is understandable as the Internet has been a sea change.
It becomes difficult to reliably determine a true threat, as it is possible to reach a large audience
and conversely impossible to gauge their reaction. This is an issue that must be dealt with by all
branches of the government. Regardless, there is a trend of having courts decided more and more
broad cases and have become the de facto policymakers for the country. Interestingly enough,
this trend started with Roe v. Wade in 1973 and continues to this day. While the courts serve a
necessary function in the balance of power in this country, the fact remains that laws are to be
enacted by the democratically elected Congress and the courts function is to act as an interpreter
There the other issue of using Web sites as legal evidence. The Nuremberg case was one
of the first to use a page as evidence, and we must assume that the proliferation of the Web will
make this more common. It is very hard to predict what will happen in this arena will sites
mirror printed works, or will a whole new way of dealing with this be developed due to the
characteristic properties of electronic media?
Whatever the logistics of lawmaking in the country are, the fact remains that there are
many issues to address in the realm of online speech. Hate groups have taken to the Internet by
force. Attracted by the relative anonymity and potential to reach a wide audience (not to mention
the media attention lavished over anything related to the Web), groups such as Stormfront, the
Minuteman Press, and the Historical Society all have established presences on the Web. Their
presence, while certainly not illegal, raises questions about drawing the line, especially for
parents and educators, whose charges can stumble across these sites while researching mundane
topics. While the courts have endlessly redefined the limits of First Amendment rights, these
groups are pushing it to the extreme advocating things that a reasonable person might
construe as a threat. They are able to reach a broad audience, one which was inaccessible by
traditional means. Although this new audience has theoretically expanded the hate groups core
audience, it has also made them vulnerable to the courts interpretation of a threat witness the
Nuremberg files Web site having been a major consideration in the jurys decision.
It is difficult to address online speech issues without wading through hundreds of
precedent cases. We feel that the protection of Constitutional rights is of paramount importance.
However, one must keep in mind that there are lives lost due to hate witness the recent
dragging death of James Byrd Jr. by John King, a white supremacist who hoped to attract
members to his newly formed group. As of now, CNN.com reports that an abortion-performing
womens clinic, Femcare, was bombed. These events serve to highlight the urgency in what
could be construed as a purely academic situation. Clearly the loss of human life is unacceptable,
but where does one draw the line between protecting people and allowing the free exchange of
ideas? It is best thus to stay a middle course and apply existing legislation on free speech and
threats to the new electronic media. While there are differences between old and new
distribution forms (namely the ability to reach a mass audience quickly and cheaply) it would be
rash to throw out two centuries worth of Constitutional interpretation because the Web is
seductive. There have been other technological revolutions and, despite the bluster of electronic
medias fiercest proponents, there will not be major changes in the immediate future.
The Nuremberg files case raises several important ancillary issues as well. Perhaps the
most important is the concept of ISP censorship. The refusal of ISPs to carry the website is an
interesting development. The cases of Prodigy, AOL and CompuServe are well known, but their
effects should be examined. It is obvious that Prodigys bulletin boards are private software on a
privately-owned server. Prodigy had the right to end discussions on their service at any time;
there is no express right granted to the users to express opinions without fear of reprisal. The
same can be said of end-user (i.e. those that sell space and bandwidth directly to the public) ISPs.
These ISPs have the right to refuse legal but questionable business. The Washington Post does
not accept advertisements for strip clubs or pornographic theaters, The San Francisco Chronicle
does. This is the inherent right of the newspaper or ISP; the idea of an ISP as a common carrier
(a necessary service which all people are entitled to) is absurd. There is a sufficient number of
ISPs who will host pages of questionable taste.
The question becomes more complicated when one considers the actions of top level ISPs
- i.e. those that sell bandwidth to others and have no contact with actual consumers. The
example of OneNet coercing Plebian to take down the Nuremberg files site
illustrates this. It is foreboding that OneNet bowed not only a few customer complaints, but
more so to those that were anticipated. Even if there were complaints, OneNet decided to
rewrite the rules as it went along. This is unacceptable. The service provider should not take it
upon itself to make sure that its downstream providers conform to the bounds of good taste.
Take this to its logical extreme: if a top-level ISP can influence its customers outside the terms of
service, what is to stop a backbone, such as UUNet or Cable & Wireless from refusing to carry
packets from an offending ISP? Sound absurd? Companies are developing software for ISPs
and backbones to analyze and track information by each packet that is sent. It is not a stretch to
imagine that this software could be modified to block packets from certain domains or pages.
Here the common carrier argument makes sense. There are few backbones and, like telcos,
should not be held responsible for the data that runs through their fiber. In return for the limits of
liability, backbones should not be able to censor information on whim. This would be analogous
to AT&T refusing to connect calls that came from or to a certain political partys headquarters.
Questionable content is still covered under the First Amendment.
The Nuremberg files case raises several legal and political issues which will likely
provide the basis of debate for years to come. This nascent medium will require a reevaluation of
free speech laws already in place. While our government has taken the first steps in establishing
a framework of evaluation of online media, much needs to be done.