Technology Law Column

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Published in the Chicago Daily Law Bulletin, May 11, 1995 at page 6.

Constitution Protects All Modes of Speech

Copyright 1995 by David Loundy

One of the hardest things about writing this column each month is choosing a topic. This month I had several people recommend a topic, and they each suggested that I write about what should and should not be done, to crack down on terrorism on the Internet.

After the Oklahoma City bombing, much of the media has been in a feeding-frenzy over the revelation that terrorist groups use the Internet to communicate, and that there are bomb-making instructions and other possibly dangerous information available for anyone to download to their personal computers. Demands have been made to regulate the Internet against these evil conspiracies and irresponsible publications. Congress has been looking with interest at how to expand surveillance options to seek out and suppress these threats on the Internet.

Concerns over terrorist plots and questionable reading material on the Internet are legitimate. The question is: why are the concerns any different for terrorists communicating by e-mail than they would be for terrorists communicating by U.S. mail? Why is it less of a threat to have the Anarchist's Cookbook available at the public library than it is to make the same book available by scanning it into a computer?

The damages caused by either over-regulation or over-permissiveness of harmful actions do not differ based on the mode of transmission - the Constitution's protections and prohibitions are not technology specific.

The First Amendment to the U.S. Constitution guarantees that "Congress shall make no law. . . abridging the freedom of speech." While at first glance "Congress shall make no law" appears to be a clear statement, many courts have held that some restrictions on speech are acceptable, especially when the restrictions are content-neutral or the speech is likely to cause harm just by its utterance.

The court decisions protecting speech have moved from the weak end of the spectrum (where speech was punishable if the speech had a "tendency" to cause a violation of law) towards the strong end of the spectrum (where a "clear and present danger" of imminent harm was required to limit speech) and finally, to the current standard as articulated in Brandenburg v. Ohio, 395 U.S. 444 (1969). Brandenburg held that, in order to justify suppression of speech, it must be intended to produce "imminent lawless action" and must be "likely to produce such action." 395 U.S. at 447.

If the government wants to prohibit terrorist communication on the Internet (and elsewhere), statutory language that might meet this goal could look like the following:

It is a crime to advocate the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform. It is also a crime to voluntarily associate with any group, society, or other assemblage of persons formed to teach the commission or aiding and abetting of the crime of sabotage, unlawful acts of force and violence, or unlawful methods of terrorism, as a means of accomplishing a change in industrial ownership or control or affecting any political change.
The problem with such a statute is that it is a paraphrase of the statute that was ruled an unconstitutional infringement of the First Amendment in Brandenburg v. Ohio.

The type of situation that the Brandenburg "imminent lawless action" test is intended to cover is when a speaker seeks to motivate others to immediate lawless action, and when listeners are likely to engage in the advocated action. Both of these elements must be clearly present. Even speech consisting of the " mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment" NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982).

In the case of a computer bulletin board, messages may not beenseen until some time after they are posted. The messages arelikely to be read by people who are at home sitting in front oftheir computers, instead of being heard while rallying outside ofthe monster's castle, pitch-forks and torches in hand. In such a situation the Brandenburg test requiring that listeners be incited to immediate lawless action is not as likely to be met.

This is not to say that all inflammatory hate speech made over a bulletin board system is protected by the First Amendment. Words which "by their very utterance inflict injury or tend to incite immediate breach of the peace" may be prohibited "and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).

An electronic message which so enrages the reader as to illicit a breach of the peace upon its reading may be sufficient to meet this test, even though there is no advocacy of lawless action. The Chaplinsky court held that "fighting words," which have a direct tendency to provoke acts of violence from the individual to whom the remarks are addressed, may be prohibited if such remarks would provoke a person of average intelligence into fighting.

Specific threats transmitted by interstate e-mail are already prohibited by law (18 U.S.C. Section 875). One such incidence resulted in the conviction of a college freshman who sent an electronic death-threat to President Clinton and family. See "In Jail for E-Mail" Wired, 2.10, Oct. 1994. This statute also prohibits the communication of kidnapping threats and attempts at extortion.

In the past a court even found it to be against the law to publish bomb making instructions. United States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979)). This holding, however, concerned the publication of details on how to make a hydrogen bomb, in violation of the Atomic Energy Act, 42 U.S.C.A. Section 2011 et seq. The judge in the Progressive case distinguished the particular situation from other Supreme Court precedent that even protected the publication of classified information (New York Times Co v. United States, 403 U.S. 713 (1971)).

The distinction the Progressive judge drew was based on the immense destructive potential of furthering the development of nuclear weaponry in other countries being at stake. The court noted that, "a mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot." 467 F.Supp. 996. (Some of the information at issue in the Progressive case was then published in other newspapers, and, presumably, can now be read in back-issues available from the public library).

In cases of distributing information that has the potential to cause damage, except at the level of global destruction, many courts have ruled in favor of allowing the speech to be made without restriction. Such cases have involved everything from stunts performed on the "Johnny Carson Show" to demonstrations on the "Mickey Mouse Club."

A good illustration of such cases involved a fourteen year old boy, who, after reading a Hustler Magazine article entitled "Orgasm of Death," decided to try the described practice of "auto-erotic asphyxia" at home, and hung himself in the process. Herceg v. Hustler Magazine, Inc. 814 F.2d. 1017 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988).

The court held that the publication of the description of techniques likely to cause harm was protected by the First Amendment. The court stated that, even though protecting children is an important social goal, that concern is to be weighed against "the danger that unclear or diminished standards of first amendment protections may both inhibit the expression of protected ideas by other speakers and constrict the right of the public to receive those ideas." 814 F.2d. at 1020.

While potentially dangerous materials are available on the Internet, dangerous materials have also been available for years on television, at bookstores and in public libraries. Although dangerous ideas may be a cause for concern, it is precisely the differences in interpretation as to what constitutes a dangerous idea that originally gave rise to the First Amendment.

The government has many tools available to monitor terrorists. More may be added to meet new concerns. But in an environment where the government has already passed legislation requiring that all telephones be made wiretap-ready and the FBI director wants to prohibit communications that employ forms of higher math (cryptography), we should be careful of thoughtlessly rushing to regulate and give up fundamental rights in the aftermath of a disaster like that in Oklahoma City.

The current speech laws apply to electronic communications networks just as they do to older methods of communication. The only new threat caused by the Internet may be due to the fact that, as is frequently mentioned in Cyberspace, while the Internet is global in scale, the First Amendment is a local ordinance.

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