WHENEVER A SOCIAL or legal issue strays into cyberspace, advocates on all sides seem to go mad. The rational turn irrational, the principled turn unprincipled, and alarmists of every stripe thoroughly take over the argument. Once a controversial figure migrates to the Internet, he turns from an annoying eccentric into the Greatest Threat in History to American values and social order.
Consider the ACLU, arguably the country's most ferocious advocate of free speech. The group has advocated for the rights of all manner of odious speakers, including the rights of uniformed neo-Nazis to parade through Jewish neighborhoods. But no sooner did right-wing zealots migrate to the Web than they were abandoned by their erstwhile protectors, who were . . . well, speechless when it came time to stand up for objectionable speech. Last February 2, the ACLU more or less stood mute and watched a Portland, Oregon, jury deliver a massive financial penalty to the operators of an anti-abortion Web site. Both during the trial and after the jury in Planned Parenthood v. American Coalition of Life Activists ordered the militant pro-life group behind ChristianGallery.com to pay $109 million in damages to the pro-choice organizations under attack by its "Nuremberg Files" site, the ACLU uttered not a word of objection.
Until then, it had looked as if the ACLU was one of the most consistent advocates for free speech in cyberspace. Congress now has twice tried to limit speech on the Internet by trying to pass anti-pornography legislation, only to run afoul of the courts and the ACLU. The most important Supreme Court ruling on the Internet thus far, a 1997 decision against restrictions on cyberporn, was won by ACLU attorneys and bears the group's name: ACLU v. Reno. And on February 1—the day before the Portland ruling—the ACLU had joined online libertarians in trumpeting the latest victory over cybersmut censors in Philadelphia, heralding a ruling by Judge Lowell A. Reed Jr., who called the Internet a "marketplace of ideas." The free-speechers proudly dubbed the new case "ACLU v. Reno, Round II."
Free speech is easily the most politically popular issue online, and the ACLU has never been shy about preaching to the choir: "The advent of new forms of communication technology is always a cause for public anxiety and unease," declares its Web site. "This was as true for the printing press and the telephone as it was for the radio and the television. But the constitutional ideal is immutable regardless of the medium: a free society is based on the principle that each and every individual has the right to decide what kind of information he or she wants—or does not want—to receive or create. Censorship, like poison gas, can be highly effective when the wind is blowing the right way. But the wind has a way of shifting, and sooner or later, it blows back upon the user."
So why did the ACLU opt for the gas pipe when it came time to defend the free-speech rights of militant pro-lifers? "We may have seemed a little wishy-washy or of two minds," admitted David Fidanque of the Oregon ACLU afterward. "It's a very complicated case."
The prime complication was an overt call to arms by ChristianGallery.com. "Our goal is to record the name of every person working in the baby slaughter business across the United States of America," it explains. "These people must be brought to justice." What "brought to justice" means is abundantly clear: Under an animated banner depicting dismembered tiny body parts and dripping with blood, the site lists names—and, in some cases, photographs and home addresses—of 200 abortion doctors, clinic owners, and pro-choice politicians. The names of those who have been wounded in attacks are grayed out, and those who have been killed—including recently murdered abortion doctors Barnett Slepian, David Gunn, and John Britton—are struck through. The plaintiffs—Planned Parenthood of Oregon, several doctors, and other pro-choice activists—sued under the 1994 Clinic Protection Act, claiming that they were physically threatened.
For the ACLU, then, the decision to stand mute apparently had to do with the balance the law tries to strike between incitement to violence and the right to say just about anything we please. It may signal the group's profound unease with this particular case that it chose neither side. "We have a strong position," insists the ACLU's Fidanque, "only it's in between the position taken by the plaintiffs and the one taken by the defendants." ChristianGallery.com either crosses or comes too close to crossing the line between protected political speech and unprotected threat. "We say it becomes a threat when the person intends it as a threat," he says. Nuremberg Files site operator Neal Horsley testified that he intended to inform and shock—but not threaten—and later assailed the ACLU for abandoning its own principles.
INDEED, THE ACLU has a long history of defending unpopular speakers, including the Ku Klux Klan. Its change of direction in this case leads UCLA professor Eugene Volokh, an expert on Internet law, to worry that the cyberlibertarian movement may have "a blind spot to speech associated with the right." The ACLU has strong alliances with the pro-choice movement, and Volokh speculates that politics rather than constitutional interpretation kept the ACLU and other free-speech activists away from the controversial Oregon pro-life coalition. "I do think it's a shame people have not come to the defense of Nuremberg Files," he says. "The worthy thing, of course, is to defend all speakers no matter their politics."
Volokh points to a case that is virtually identical to the Nuremberg Files case: NAACP v. Claiborne Hardware, in which the Supreme Court upheld the free-speech rights of 1960s civil rights leader Charles Evers, who had made explicit threats during a boycott campaign against purportedly racist stores in Claiborne County, Mississippi. "If we catch any of you going in," Evers shouted to a crowd, "we're gonna break your damn neck!" The NAACP assigned "enforcers" to "discipline" noncompliance. And in striking similarity to the Oregon case, those who defied the NAACP boycott found their names published in community bulletins, shots fired into their homes, and their windshields smashed in with bricks. "Think what would have happened if the NAACP were slapped with a $100 million damage award," says Volokh. "Think what would have happened to the civil rights movement."
The ACLU's Fidanque replies that the famous threats made by Evers in Mississippi "were pretty clearly political rhetoric and hyperbole, and therefore protected [by the First Amendment]." The Nuremberg Files, then, apparently cross a line Evers didn't cross. Professor Volokh disagrees and wonders if the Web's politically correct free speech movement simply "didn't want to jeopardize [its] alliances" with the powerful pro-choice lobby.
Just as likely is the idea that the ACLU is unnerved by the Internet's perceived power as a medium. It is quite possible that the libertarians would have defended the Nuremberg Files were they not published on the Web. As the Oregon trial enters a second phase, in which the judge must decide whether to impose restrictions on further dissemination of the Nuremberg Files, the ACLU once again fell short of its traditional defense of free-speech rights, encouraging what it calls "very narrow" restrictions on further distribution online. "We need to consider this very carefully," says Fidanque. "Publishing on the Internet is a dynamic thing. The Web changes all the time."
Some hate specialists believe that much of the outcry over the Nuremberg Files is misguided, and that many of the assumptions underlying the argument that the site should be constrained are based on the mistaken notion that use of the Internet elevates the user to a level of influence he or she would not otherwise have. Among those dismayed by the ACLU's inaction is David Goldman, who runs the hate-group-monitoring site HateWatch.org (not to be confused with the subversive hatewatch.com or hatewatch.net). While less Net-savvy students of free-speech issues fear the power the Net gives to hate groups, Goldman opposes restrictions on the Nuremberg Files because he feels that exposure on the Internet actually weakens the hate speaker. "It's a wonderful thing," he says. "We always get these charges that we're fighting or challenging free speech. I always say, 'No! Talk more!' These groups are more dangerous when they're subversive. Having them on the Net is a great way to put the truth about them in front of people."