By Jared Chausow
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By Jon Campbell
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Last Thursday night, the lawyers weighed in. The occasion was a panel at the Association of the Bar of the City of New York, "Extreme Speech on the Internet: Testing the Outer Limits of Free Speech in the Information Age."
In a mahogany meeting hall across from the Algonquin Hotel, power reps from America Online, the Anti-Defamation League, and the exploding computer law niche considered whether the First Amendment even applies to cyberspace. In the end, they generally agreed, the answer is pretty much no.
The case study for the discussion was the landmark verdict in Oregon's recent Nuremberg Files trial. (For more on this case and its implications, see Nat Hentoff, "A True Threat Is Not Free Speech," p. 30.) On February 2, a federal jury ordered antiabortion militants to pay $107 million in a lawsuit filed by Planned Parenthood, the Portland Feminist Women's Health Center, and four individual doctors.
The Nuremberg Files Web site had featured old-west style wanted posters of doctors who performed abortions. In circulation offline since 1995, the posters were accompanied on the site by information on the so-called "Dirty Dozen" abortionists, including home addresses and family details. The names of murdered abortion doctors were crossed out on the site; those who were wounded were listed in gray.
Though the ruling stirred debate about free speech on the Net, Maria Vullo, the plaintiffs' lead attorney, told Thursday's audience that this was not the issue. "My case was about threatening speech," she said, "which has never, ever been protected by the First Amendment."
But the nuances of determining what constitutes a threat are complex, said Rodney Smolla, a University of Richmond professor and the author of Free Speech in an Open Society, who pointed out that to be deemed threatening, the Nuremberg site's posters had to be considered in the context of the patterns and history of abortion doctor killings.
Laura Jones, senior litigation counsel for AOL, said that she is consistently in the position of having to determine whether postings are offensive enough to be removed from the service. AOL, like most Internet service providers (ISPs), has penned its own governing Terms of Service, which prohibit racist and threatening speech. (The Nuremberg Files site would simply jump to a new ISP each time it got taken down.)
Jones admitted that making the final call is slippery. When a potential violator is reported by a member, she walks down her office hallway and asks employees if anyone thinks the content should come down. "We don't go as far as the First Amendment [in terms of safeguarding free speech], because this is our community," Jones said. "[AOL] is supposed to be nicer, cleaner, and safer than the Internet at large."
Faced with the prospect of the mean and dirty Net, many of AOL's 17 million residents are happy to let the Dilberts in Dulles, Virginia, sweep their streets. Which means what? That, for the proprietary online communities and ISPs, the Terms of Service is the only constitution that matters.
"It's very plausible that in 10 years we'll decide we don't want the First Amendment in cyberspace," concluded Thursday's moderator, Peter Brown, a computer law specialist. Maybe that decision has already been made.