With the advent of the Internet, many areas of law are being questioned. One of these areas implicates the First Amendment and protection of free speech. Speech on the Internet is an entirely new form of speech that needs to be analyzed to determine whether harmful/illegal speech on the internet can be proscribed using current free speech exceptions or whether a new exception needs to be developed to apply to Internet speech. It is useful to compare Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists to the mass media mass distribution free speech cases that we have seen in recent years. In the present case, although the defendants are not members of the mass media the case can be analyzed along the same lines as the mass media speech injury cases. ACLA’s publication of the Nuremberg Files on the Internet, is speech that potentially reached a large audience which makes it similar to mass distribution mass media speech in books or movies. However, it is appropriate to note that the fact that this is a Web page may make it inherently different and therefore requires its own method of analysis.

The topic of this note is whether a Web site containing the "Nuremberg Files" is entitled to First Amendment protection or if this speech is such an evil that that the government can limit the speech.

Plaintiffs Planned Parenthood of the Columbia/Willamette, Inc., Portland Feminist Women’s Health Center, and individual physicians brought an action against the anti-abortion organization called American Coalition of Life Activists (ACLA), Advocates for Life Ministries, and fourteen individual anti-abortion activists for violating Freedom of Access to Clinic Entrances Act ("FACE") Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Oregon Racketeer Influenced and Corrupt Organizations Act ("ORICO"). An analysis of the RICO and ORICO claims is beyond the scope of this note. The issue in this case is whether defendant’s statements in posters and other documents constituted "true threats" that are not protected by First Amendment. The threats that are discussed in the case are The Deadly Dozen Poster, the Crist Poster, Bumper stickers and the Nuremberg Files.

During an ACLA event in Jan. 1996, a box was labeled the "Nuremberg Files." In the box were files that contained personal identifying info on doctors. At the same event, a "White Rose Banquet" was held to honor individuals who were incarcerated for committing anti-abortion violence. The "Nuremberg Files" appeared on the Internet in Jan 1997. At the top of the Web page it read "VISUALIZE Abortionists on Trial" followed by:

THE NUREMBURG FILES

After the statement the names of about 200 people are named as "ABORTIONISTS: the shooters" and then the names of 200 other are listed under the labels of "CLINIC WORKERS: their weapons bearers," "JUDGES: their shysters," "POLITICIANS: their mouthpieces," "LAW ENFORCEMENT: their bloodhounds," or "MISCELLANEOUS BLOOD FLUNKIES." The Web site also encourages readers to "Please find out this information on the butchers in your state who do partial birth and third trimester abortions. There certainly must be a special place in hell for such unrepentant slaughterers of God’s Children." These files included personal information like photos, addresses and license-plate numbers. In some cases, the files contained the names of the physicians’ children and the schools they attended. In three areas, the page bears drawing of lines of dripping blood dripping from fetus parts. On the Web site, doctors who have been killed by pro-lifers were crossed off the wanted list. Those who were wounded were shaded in gray.

The district court applied an objective, speaker-based test to determine whether for purposes of First Amendment analysis whether these threats were "true threats." The plaintiffs must prove that the defendants conduct violated or conspired to violate FACE, which describes "threats of force" that intentionally "intimidate" a person from providing reproductive health services. It was determined in Planned Parenthood of the Columbia/Willamette Inc., v. ACLA (Planned Parenthood I) that FACE does not violate the First Amendment because it is a content neutral statute that serves an important governmental interest in preventing violence and preserving access to reproductive health services and is narrowly tailored to further those interests. True threats are not protected speech under the First Amendment. The Court relied on Roy v. United States, to construe the willfulness requirement of the statute to require only that defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the statement is directed as a serious expression of an intention to inflict bodily harm.

The district court held that only the Deadly Dozen poster, the Crist poster, and the Nuremberg Files are actionable and denied defendant’s summary judgment motion as to these materials. Then on February 2, 1999 a federal jury awarded Planned Parenthood and the other plaintiffs $107 million in damages. Judge Jones on February 25, 1999 endorsed the jury’s verdict and then entered a permanent injunction ordering the ACLA not republish any of the "Nuremberg Files" Web site material or its equivalent. Judge Jones called the Web site and the posters "blatant and illegal communication of true threats to kill." He also said, "I totally reject the defendants’ attempts to justify their action as an expression of opinion or as a legitimate and lawful exercise of free speech." Defying the injunction could result in criminal prosecution and fines up to $1000 a day.

Planned Parenthood is an important case because it is the first case under FACE that does not involve direct personal confrontation or direct threats.

Although the jury in this case applied the "true threat" analysis to determine First Amendment free speech issues to determine violation of FACE, it is also proper for a court to determine if the Nuremberg Files are entitled to First Amendment protection by employing an incitement analysis. The Supreme Court has stated that speech is generally protected unless it falls into a limited number of exceptions. The categories of unprotected speech include obscenity, libel, fighting words, child pornography and inciting speech. Although the Supreme Court in Watts v. United States, stated in dicta that threats are not protected speech, it is not a well defined exception. The courts have seldom utilized a true threat analysis outside of FACE. It would then be appropriate to discuss whether the defendants’ posters and Web site were inciting imminent lawless action and could be limited by applying the inciting speech exception as defined in Brandenburg v. Ohio for purposes of civil aiding and abetting.

In Brandenburg, the defendant, a leader of the Klu Klux Klan, was charged with violating Ohio’s Criminal Syndicalism Statute that forbade the advocacy of crime or violence as a means of accomplishing political reform. The Supreme Court struck down the statute. The Court developed a new test which is though of as a combination of the Holmes and Hand tests that serves as a greater protection of speech. The Court’s new test for proscribing speech that advocated the use of force or crime is broken down into four requirements. The four prongs include (1) the speaker must have ‘specifically intended’ the words to bring about a particular lawless or violent result (2) the words must be ‘directed to’ inciting or producing violent or lawless action (3) the lawlessness or violence contemplated must be likely to actually result from the speech and (4) the lawlessness or violence must be likely to occur in the ‘imminent’ future.

The Brandenburg test is "highly speech protective," and to limit speech under Brandenburg, all four prongs of the test must be met. Applying the Brandenburg test has become increasingly complex in current litigation.

Courts have been attempting to apply Brandenburg to mass-distribution speech. However, they have been reluctant to find that most mass media speech constitutes "inciting speech" under Brandenburg. This is generally occurs for two reasons. First, most mass media speech is disseminated randomly to an anonymous audience. This makes it difficult for those seeking to limit the speech to show that the speakers has a "specific intent" to incite their listeners/readers to commit particular lawless or violent actions. Second, the listeners/readers may respond criminally or with violence to the speech long after the speech has been disseminated. Thus, it may be difficult to show the imminence prong of the Brandenburg test if the courts continue to construe imminence to mean ‘immediate’. Legal scholars are advocating that a new free speech exception should be created to deal with these mass media speech issues because the traditional Brandenburg test was meant to apply only to a specific set of factual and procedural circumstances generally called "crowd arousal". However, a number of courts continue to apply the "inciting speech" test of Brandenburg in civil suits against media defendants whose speech has allegedly occasioned physical harm to third parties. Others argue that Brandenburg may be applicable in mass publication speech contexts by modifying the speaker intent and imminency prongs of the test to better fit the factual, circumstantial and procedural characteristics of media speech injury civil cases.

In applying Brandenburg it is likely that speech opponents can show that that speech meet the ‘directed to’ and ‘likelihood’ prong on the Brandenburg test. Similarly, it is likely that the Planned Parenthood plaintiffs could show that defendants directed their speech to an audience that would act unlawfully against the plaintiffs and that were likely to do so. Therefore, it is appropriate to focus on the two remaining prongs of the Brandenburg test: the intent requirement and the imminency requirement. In this note I will examine first the possibility of a new free speech exception applied to mass publication speech and the Nuremberg Files Web site particularly. Then I will discuss a proposed modification of the intent and imminency prongs of the traditional Brandenburg test as it applies to the Web page discussed in Planned Parenthood of the Columbia/Willamette Inc., v. ACLA.

Some argue that the holding in Brandenburg should be limited to the facts of the case and should not have a broad application. The Court in Brandenburg overturned the conviction of Ku Klux Klan members for making inciting statements at a "rally" shown on local news. Although unpopular and offensive to many, the Klan was not preparing a group to commit violent criminal acts. Instead they were engaging in social and political commentary. Applying Brandenburg beyond political speech in a crowd arousal context may lead to the protection of speech with no social value and which threatens people’s lives. Scholars who advocate a new categorical exception generally think it should be applied to detailed instructional speech about criminal activity such as that published in Rice v. Paladin, or to speech involving "suicidal pornography." In Rice, publishers disseminated a manual on how to be a contract killer. The book gave detailed instructions on how to complete a "hit" without getting caught by law enforcement. In Herceg, Hustler Magazine published an article about how to perform erotic asphyxiation.

The opponents of the murder manual cases have argued that the court should look at the standard used in proscribing obscene speech. The Supreme Court has refused to protect obscene speech under the First Amendment because it lacks social value. Likewise, in the murder manual cases, it is argued that the speech has little or no political or social value and should not be protected. However, it would be difficult in this case for the Planned Parenthood plaintiffs to show that the Nuremberg Files Web page contained no social or political value. Abortion is one of the most socially and politically debated topics in society today. Although the Web page may be offensive, it is expressing an anti-abortionist view. Also, the speech on the Web site is not detailed "criminal instructional" speech. It does not give the reader detailed information on how to kill a particular plaintiff. The defendants did not use explicit language. Instead, they merely released personal information about plaintiffs so a reader could track down a particular plaintiff and "protest" and "make them see the wrongs they have done." They also designate those killed by crossing their names off of the wanted list. Although there is no explicit language directing a reader to kill an abortion provider an argument can be made that ACLA is advocating murder.

Some scholars suggest that courts facing these media injury speech issues should adopt the standard set forth in Dennis v. United States. The Dennis test asks whether "the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The test will allow for an easier application to media injury cases that do not fit in to the "crowd arousal" circumstances of Brandenburg. The gravity of the potential evil is especially great here because the ACLA’s Web site was mass published and disseminated on the World Wide Web. This dissemination caused plaintiffs to live in fear for their lives. Speech with very low value and very high costs does not benefit the marketplace of ideas. However, opponents to a suggestion of applying a new categorical exception will argue that allowing a new test lacks any limiting principle. These opponents are wary of a slippery slope where judges can bar media speech that results in injury based on only subjective criteria.

In this case, it is unlikely that the Court of Appeals would decide to create a new categorical exception on the facts of this case because the speech here does have some political or social value. It is unlikely the court will take this opportunity to define a new exception. Instead, if a new categorical exception is made in regard to free speech it is likely to come from the Supreme Court in a case similar to the facts of Rice where it is argued that the facts are so unlike the crowd arousal of Brandenburg that a new approach is needed to limit speech that is used for conveying detailed information about how to commit serious crimes. The Supreme Court has chosen as of yet not to do so. Instead they have continued to apply the traditional Brandenburg test.

Generally, ‘media-speech’ injury cases have not fared well due to the "specific intent" requirement implied in Brandenburg. It is difficult for the speech opponents to prove that the media speakers "specifically intended" for their speech to inspire audience member to engage in lawlessness or violence. This is because the speech is disseminated to anonymous audience members and many factors such as information or education rather than illegal or violent motivations can inspire the speech. Some commentators argue that "specific intent is unwarranted when Brandenburg is applied in mass publication speech cases.

Some argue that the test’s speaker culpability requirement should be lowered from "specific intent" to mere "knowledge." This may be generated in part from the test set forth in New York Times Co. v. Sullivan, where in a civil libel action against a newspaper publisher, the Supreme Court held that the level of speaker culpability was something less than "specific intent." These commentators argue that since the Court in New York Times Co. v. Sullivan, set the requisite level of media speaker intent at less than "specific intent" in a civil suit involving the tort of libel, there is no reason that it should not similarly hold with respect to the level of speaker culpability required in civil cases involving other torts by media speakers. These commentators believe that a media speaker should be subject to civil liability for injuries caused by its speech if the occurrence of harm was foreseeable to the media speaker at the time it disseminated its speech to a mass audience.

Also, it is worth noting that ‘media-speech injury’ cases are civil actions, whereas most ‘crowd arousal’ cases involve criminal prosecutions. This is important to note because there is much greater justification for requiring "specific speaker intent’ in criminal actions than in civil actions because personal liberty is at stake. Although free speech advocates will claim that lowering the required level of speaker culpability will have a "chilling" effect on media speech because of the concern of paying a great amount of money damages, it isn’t a valid concern. In fact, only a few courts have denied money damages in media speech injury cases because of their concern that allowing such recovery would foster a chilling of much legitimate media speech. Those in favor of modifying the Brandenburg test will argue that the intent element be shifted to coincide with the requisite intent needed in most civil actions. Brandenburg and the "clear and present danger" line of cases involved criminal prosecutions usually in an ideological context. These cases usually included crowd arousal about political or social issues. In Brandenburg, the defendant was charged with violating the Ohio Criminal Syndicalism Act. The test adopted by the Court was designed to apply to similar situations involving other criminal statutes and corresponded to the mens rea required in these criminal statutes.

In the instant case, one could argue that defendants knew that there was a risk that readers could use the information to further their homicidal aims in threatening, harassing, or killing those providing reproductive services or those seeking to obtain reproductive services. However, it is important to note that no court has held that the level of speaker intent required by the Brandenburg should vary depending on the factual circumstances or the civil nature of the speech. Instead they continued to apply the traditional Brandenburg test. One court in Byers v. Edmondson has even explicitly refused to lower the intent requirement to mere "knowledge" in a case involving a media speaker sued in tort for injuries allegedly caused by its speech.

Alternatively, if courts continue to state that the "specific intent" requirement is the appropriate standard for determining speaker’s culpability one can argue that specific intent is demonstrated in defendants’ publication of the Nuremberg Files Web site. The specific intent requirement of Brandenburg may be to protect the speaker from unknown and unintended consequences of his speech. A speaker is not punished for mere advocacy of overthrow of the government. Instead, a speaker is punished for incitement to cause imminent lawless action. In these cases specific intent is required to protect speaker from unintended results of their speech. However, in some media cases like Rice, arguably there is only one result intended – the completion of a contract killing. Similarly here, it could be argued that the only intent of the Web page was the killing or causing serious bodily injury of abortion providers. The evidence of this is the crossing out of names in the Nuremberg files of those who were killed and shading in gray those who were injured. Also, the areas of blood on the page are an encouragement to act violently. In addition, there were no disclaimers on the Web site saying this is for informational use only or the like, which have been used in other media injury cases like Herceg. In Herceg, an article in Hustlermagazine contained detailed information about how to engage in a potentially fatal activity, it also contained graphic descriptions of the fatal consequences of the activity and that readers should not attempt to emulate the activities described. The Nuremberg Files Web site did not discourage readers from potentially committing violent acts against plaintiffs. Also worth noting is the United States v. Barnett case where defendant who published and distributed a set of detailed instructions on how to manufacture PCP was charged with aiding and abetting the manufacture of the drug after a purchases or his pamphlet was discovered making the substance while consulting the instructions.

However it is likely that the defendants will rely on Noto v. United States, where it states that "[t]he purpose of the Brandenburg test was to distinguish between the mere abstract teaching . . . of moral propriety or even moral necessity for a resort to violence, is not the same as preparing a group for violent action and steeling it to such action." ACLA will argue that the Web site is mere abstract advocacy of violence as a necessary means to further anti-abortion viewpoints and that is was not steeling its audience to such violent action against abortion providers.

If the court chooses to modify the Brandenburg intent element to be that of knowledge rather than "specific intent" it is likely that the speech used in ACLA’s Web site would satisfy this prong. However, if the court remains faithful to the traditional Brandenburg test it is unlikely that a court would find that the defendants specifically intended the speech to cause harm to plaintiffs.

Commentators argue that the traditional "imminence" requirement of Brandenburg is too limited in media injury speech cases and should adopt a modified test. They argue that once again the circumstances surrounding Brandenburg limited its application to "crowd arousal" cases. It is argued that the nature of the harm at issue in a given "media-speech injury" case should have considerable impact on a court’s determination of the operative "imminency" time frame. In cases like Brandenburg it is a relatively common occurrence that the action called for by the speaker would take place in the very near future. Here, it is inappropriate to think that there was an imminent threat only if readers acted violently upon plaintiffs within days or hours upon reading the Web site. In circumstances given here along with those in contract murder cases like Rice the court should look at the planning process along the way to committing a violent or illegal act.

Also it is argued that the Brandenburg Court never expressly determined the issue of what is meant by "imminent" lawless action. By following the "clear and present danger" line of cases, it seems that the definition of imminence used in Dennis v. United States, is still applicable. In determining the imminency requirement, the Brandenburg Court relied on Yates v. United States, analysis which overruled the Smith Act convictions but did not overrule the Dennis holding that the Smith Act was constitutional. Therefore, "if the Brandenburg Court followed Yates reasoning and struck down the Ohio statute on the ground that it was overbroad because, unlike the Smith Act, it sought to punish abstract advocacy, it had no need to adopt the Brandeis temporal imminence standard." Thus, the Court should rely on the Dennis standard and ask (as mentioned above) "whether the gravity of the ‘evil’, discounted by improbability, justifies such an invasion of free speech as is necessary to avoid the danger." Here, plaintiffs will argue that the gravity of the evil may justify such an invasion. This type of speech has a lower social value combined with a real threat of harm to the public.

The "clear and present danger" line of cases relied on the "marketplace of ideas" notion that if there is time for reasoned consideration the truth will come out. These cases held that suppression of speech is only acceptable when the danger is immediately present that there is no time for the truth to be sought. However, today there is no basis in believing that the truth will "defuse unlawful advocacy." In Brandenburg, the speeches were made in public with the opportunity for opposing views to be heard giving people the opportunity to form their own well informed opinion. Here, people read this type of speech in the privacy of their own homes on their personal computer leaving no opportunity for reasoned evaluation. Instead, there is only one viewpoint that threatening, injuring, or killing people to stop abortion serves a necessary purpose that is expressed. A person on the Internet has to actively seek the other information. For the "truth to be sought out" a person may have to look at multiple Web sites to see opinions on both sides of the issue. The Internet is a pull medium. A user has to "pull" the information out he/she wants. In comparison, television maybe a push medium. Television "pushes" the information at the person watching. It takes much less effort to turn the channel away from a program that is pushing information than pulling information from the "information super-highway." If the Court requires true immediate imminence, it is insensitive to society’s legitimate interest in self-protection. We do not live in the same society as in the days of Brandenburg. No longer are people’s concerns focused on speakers advocating an overthrow of the government. Instead, people worry about greater evil that effect their family such as kids taking homemade bombs to school or worrying if a neighbor is a contract killer. Society has a greater interest in self-protection than in protecting the harmful speech of ACLA.

Plaintiffs will argue that violent action is imminent. The record states that when the posters and Web page were disseminated the FBI issued protection almost immediately to the plaintiff’s and clinics mentioned. The FBI told the individual physicians to wear bulletproof vests and then implemented other security measures at the clinics. The present advocacy of the Nuremberg Files could have created a strong relationship with its readers such that their actions were imminent. "Throughout our decisions there has recurred a distinction between the statement of an ideal which may prompt its hearers to take unlawful action, and advocacy that action be taken." It is present advocacy and not intent to advocate in the future that is unprotected speech. Arguably, the content of the Web site is present advocacy. As mentioned above, the Web site contained personal information about physicians, politicians and lawyers. In three areas, the page bears drawing of lines of dripping blood dripping from fetus parts. On the Web site, doctors who have been killed by pro-lifers were crossed off the wanted list. Those who were wounded were shaded in gray.

In determining imminency, the Court may choose to view the events in time as a simultaneous interaction between the reader and author. The fact that time passes between a person reading the Web site and committing a violent crime against persons like the plaintiffs is irrelevant. In People v. Rubin, the Court held that a Nazi Party demonstration and march to be held in five weeks was imminent in terms of political assassination. The Court also stated, "time is a relative dimension and imminence a relative term, and the imminence of an event is related to its nature." Plaintiffs could argue that the nature of the crimes against abortion providers requires a rigorous planning process over time. Therefore, the Court should modify the imminence prong to comply with the circumstances in media injury cases and find that plaintiffs could satisfy the imminence prong.

Although speech on the Internet is can be compared to mass publication speech generally, there are a few difficulties. Perhaps the greatest obstacle is the freedom given to the Internet in ACLU v. Reno In Reno, the Communications Decency Act ("CDA") was attacked on two provisions.

First, was the provision that it was a crime to use a "telecommunications device" to transmit any communication which is "obscene or indecent" while knowing that the recipient of the communication is under 18 years of age.

Second, was the provision that it was a crime to "use any interactive computer service" to display in a manner available to a person under 18 any communication that uses patently offensive language or images. The Supreme Court found that the Internet more closely resembles books and newspapers than broadcast and cable TV and is deserving of the utmost freedom from content regulation. The Government construes the statute in light of legislative history and the Supreme Court analysis in FCC v. Pacifica Foundation. In finding that parts of the CDA were unconstitutional the Court concluded in finding number 122 that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution. The CDA’s defenses—credit card verification, adult access codes, and adult personal identification numbers – are effectively unavailable for non-commercial, not-for-profit entities." Also, the Court held that the CDA vagueness and overbreadth posed First Amendment problems. "In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another." The Court concluded that the government failed to show that there was no less restrictive alternative that would accomplish the same ends. When the government tries to protect minors from non-obscene material, it must make great efforts to see that the rights of adults to access are not inadvertently hampered. Some time-place-manner regulation of the Internet will be allowable. However, will have to use the least intrusive measures.

The Supreme Court’s holding seems to give the Internet the very broad First Amendment protection as given to books and newspapers and not the lesser protection given to over the air broadcast media. This implies that the any content-based limitation will be subject to the strictest of scrutiny. (Add info from Web cases like Compuserve v. Cubby and the Stern case where the Internet is called a library or bookstore.)

Other issues arise involving the nature of the Internet. On the Internet, there is no monitoring of the information that is available to anyone with Internet access. Also the relative ease and efficiency of the Internet allows for instantaneous communication. In addition, the Internet allows for would be criminals to communicate and conspire anonymously. Without the Internet these groups would have to plan a meeting to get together because information could not be sent back and forth through regular U.S. mail. Now would be criminals can conspire without the fear of law enforcement. Finding number 86 from ACLU v. Reno noted, "[o]nce a provider posts its content on the Internet, it cannot prevent that content from entering any community. Unlike the newspaper, broadcast station, or cable system, Internet technology necessarily gives a speaker a potential worldwide audience. Because the Internet is a network of networks (as described above in Findings 1-4), any network connected to the Internet has the capacity to send and receive information to any other network."

Courts will also have to contend with defining imminency. To determine imminency, should the court look at the time when something is posted on the Internet to the time an unlawful act occurs from when someone actually reads it the information to the time the unlawful act occurs.

In addition, the Internet is accessible internationally. Many postings on the Internet originates outside the U.S. Can this speech be monitored and held liable under the Brandenburg incitement test. This creates personal jurisdiction problems.

A concern of the appeals court may be regarding the injunction against maintaining the Web site. Plaintiffs may have the burden of showing that the injunction satifies strict scrutiny because not allowing the page on the Internet is a content-based limitation. In the alternative, the Court may allow the Web page to remain on the Internet but continue to allow the compensation to plaintiffs for substantial damages caused in their violations of FACE, ORICO and RICO.