IN THE SUPREME COURT OF THE UNITED STATES
________________________
No. 99-101
_______________________
V.
_________________________________
ON DIRECT APPEAL FROM THE U.S. DISTRICT
COURT IN THE
DISTRICT OF AMES
_________________________________
______________________________________________________________________________
Counsel:
Stuart
Adam Graiwer
Michael
E. Siegel
TABLE OF CONTENTS
TABLE OF AUTHORITIES................. ii
QUESTIONS PRESENTED................... 1
STATEMENT OF FACTS. 1
STANDARD OF REVIEW .3
ARGUMENT 3
I.
APPLICATION
OF FABE IN THIS INSTANCE IS CONSTITUTIONAL AND DOES NOT VIOLATE APPELLANTS
FIRST AMENDMENT RIGHTS
.3
A. FABE Is Facially Valid As A Content and
Viewpoint Neutral Regulation
...3
B. The District Court Did Not Err In Finding
That ALA And Daniel Coast
Communicated True Threats To Each Of
The Appellees In Violation Of FABE
..7
C. FABE Should Apply Equally To Threats Made
In Cyberspace As It Does To Threats
Made In
More Conventional Media
.
12
II. BRAINSPRING SHOULD BE HELD LIABLE
FOR THE CONTENT OF THE NUREMBERG FILES WEB-SITE
...
16
A. FABEs Silence As To Third Party Liability Does Not Preclude The Imposition Of Liability Against Brainspring .. 16
B.
Brainspring Can Be Held Liable Under The Doctrine of Contributory
Liability
16
C.
Brainspring Can Be Held Liable Under The Doctrine Of Vicarious
Liability
20
D. Brainspring Should Be
Held Liable For The Content Of The Nuremberg Files Web-Site To Best Effectuate
Policy Governing the Internet
22
CONCLUSION.............. 29
TABLE OF
AUTHORITIES
CASES
Page
ACLU v. Reno, 31
F. Supp.2d 473 (E.D.Pa. 1999)....... 13
ACLU v. Reno, 929
F. Supp. 824 (E.D.Pa. 1996).. 12,13
American Life League,
Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995)... 4,6,7
Blumenthal
v. Drudge,
992 F. Supp. 44 (D.D.C. 1998)
...26
Bose Corp. v
Consumers Union of United States, Inc., 466 U.S. 485 (1984)................. 3,8
Brandenburg v. Ohio,
395 U.S. 444 (1969)...... 15
Cameron
v. Johnson,
390 U.S. 611 (1968)
.6
Cheffer v. Reno,
55 F.3d 1517 (11th Cir.1995)... 4
Columbia Broad. Sys,
Inc.v. Democratic Natl Comm., 412 U.S. 94 (1973)...... 14
Columbia
Ins. Co. v. Seedscandy.com, 185 F.R.D. 573 (N.D.C.A. 1999)
..22,23
Columbia
Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59 (3rd Cir. 1986)
18
Demetriades
v. Kaufmann,
690 F. Supp. 289 (S.D.N.Y. 1998)
.
...20
Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) 14,15
F.C.C. v. Pacifica
Found., 438 U.S. 726 (1978)...... 14
Fonovisa,
Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.
1996)
..
19,20,21
Grayned v. City of
Rockford, 408 U.S. 104
(1972)
...5
Greenhut v. Hand
996 F. Supp 372 (D.N.J. 1998)......... 4
Hamling v. United
States, 418 U.S. 87 (1974)........ 8
Hard Rock Cafι Licensing Corp v. Concession Servcs, Inc., 955 F.2d 1143 (7th Cir. 1992) ... ...19
Hoffman v. Hunt,
126 F.3d 575 (4th Cir. 1997).... 4,10
Inwood
Laboratories v. Ives Laboratories, 456 U.S. 844 (1982)
..16
Lewis
v. Time, Inc.,
83 F.R.D. 455 (C.D.C.A. 1979)
...18
Lockheed
Martin Corp. v. Network Solutions, Inc., 985 F. Supp. 949 (C.D.C.A.
1997)
19,27
Lovell v. Poway
Unified School Dist., 90 F.3d 367 (9th Cir. 1996)......... 9
Madsen v. Women's
Health Center, 512 U.S. 753 (1994) passim
Melugin v. Hames,
38 F.3d 1478 (9th Cir. 1994)......... 8
NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982)........ 7
New
York v. Ferber,
458 U.S. 747 (1982)
..6
Planned
Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life
Activists,
41 F.Supp.2d 1130 (D. Or. 1999)
..
10
Planned
Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life
Activists,
23 F.Supp.2d 1182 (D.Or. 1998)
..10
Playboy
Enter, v. Russ Hardenburgh, Inc., 982 F. Supp. 503 (N.D. Ohio
1997)
.20
Polygram
Int'l Publishing v. Nevada/TIG, Inc., 855 F. Supp. 1314 (D.Mass. 1994)
..21,24
R.A.V. v. St. Paul,
505 U.S. 377 (1992). 4,5,7
Realsongs
v. Gulf Broadcasting, Inc., 8224 F. Supp. 89 (M.D.L.a. 1993)
..20,22
Religious
Tech. Ctr. v. Netcom Online Communication Servs. Inc., 907 F. Supp. 1361
(N.D.C.A. 1995)
..17,19,27
Reno v. ACLU, 521
U.S. 844 (1997)....... 13,14,15
Riely v. Reno,
860 F. Supp. 693 (D.Ariz 1994)......... 5
Roberts v. United
States Jaycees, 468 U.S. 609 (1984)........ 7
Schenck v. Pro-Choice
Network of Western New York, 519 U.S. 357 (1997)...... 29
Screen
Gems-Columbia Music, Inc. v. Mark Fi Records, Inc., 256 F. Supp. 399
(S.D.N.Y. 1966)
23
SEC v. First Jersey
Sec., Inc., 101 F.3d 1450 (2d Cir. 1996)....... 28
SEC v. Management
Dynamics, 515 F.2d 801 (2d Cir. 1975).................. 28
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) 16
Spence v. Flynt, 647 F. Supp. 1266 (D.Wyo. 1986) .18
Terry v. Reno,
101 F.3d 1412 (D.C.Cir. 1996)...... 4,6
United States v.
Alkhabaz, 104 F.3d 1492 (6th Cir. 1997)....... 12
United States v.
Baker, 890 F. Supp. 1375 (E.D. Mich. 1995)....... 12
United States v. Bird,
124 F.3d 667 (5th Cir. 1997)......... 4
United States v.
Darby, 37 F.3d 1059 (4th Cir. 1994)....... 11
United States v.
Davis, 876 F.2d 71 (9th Cir.1988). 11
United States v.
DeAndino, 958 F.2d 146 (6th Cir. 1992)....... 11
United States v. Diapulse, 457 F.2d 25 (2d Cir. 1972) .28
United States v.
Dinwiddie, 76 F.3d 913 (8th Cir. 1996).......... passim
United States v.
Francis, 164 F.3d 120 (2d Cir. 1999) 11
United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997)....... 10
United States v.
Gilbert, 884 F.2d 454 (9th Cir. 1989)............ 10,11
United States v.
Himelwright, 42 F.3d 777 (3d Cir. 1994)............ 11,12
United
States v. Kilmer,
534 F.2d 1020 (2d Cir. 1976)
14
United States v.
Khorrami, 895 F.2d 1186 (7th Cir. 1990)...... 8,9
United States v.
Leaverton, 835 F.2d 254 (10th Cir. 1987)...... 8,9
United States v.
Lincoln, 589 F.2d 379 (8th Cir. 1979).. 8
United States v.
Malik, 16 F.3d 45 (2d Cir. 1994)......... 8
United States v.
McMillan, 53 F. Supp2d 895 (S.D.Miss. 1999)......... 8
United States v.
Miller, 115 F.3d 361 (6th Cir. 1997) 11
United States v.
Myers, 104 F.3d 76 (5th Cir. 1997) 11
United States v.
O'Brien, 391 U.S. 367 (1968)..... 5,6
United States v.
Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990)......... 9
United States v.
Soderna, 82 F.3d 1370 (7th Cir. 1996)......... 4
United States v.
Viefhaus, 168 F.3d 392 (10th Cir. 1999)....... 11
United States v.
Weslin, 156 F.3d 292 (2d Cir. 1998).............. 4,11
United States v.
Whiffen, 121 F.3d 18 (1st Cir. 1997) 11
United States v.
Wilson, 154 F.3d 658 (7th Cir. 1998).. 4
Watts v. United States,
394 U.S. 705 (1969)........ 7
Wisconsin v. Mitchell,
508 U.S. 476 (1993)........ 7
Zeran
v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
..
25
Statutory provisions
10 U.S.C. § 284.......... passim
15
U.S.C. § 1114
...16
15
U.S.C. § 1125
...16
17 U.S.C. § 101 .16
17
U.S.C. § 512
.27
18 U.S.C. § 115.............. 9,10
18 U.S.C. § 248 4
18 U.S.C. § 844 8
18 U.S.C. § 871.................. 11
18 U.S.C. § 875....... 11,12,14
18 U.S.C. § 876.............. 8,11
42 U.S.C. § 3631............ 10,11
47
U.S.C. § 230
.25
H.R. Rep. No. 103-306
(1993)........ 6
H.R. Rep. No. 105-775
(1998)...... 14
Pub. L. No. 105-277 § 1402
(1998) 13,14
Restatement (Second)
of Torts, § 876(B) (1977)
..16
S.Rep. No. 103-117(1993)........... 4,6,11
Does
a web-site replete with dripping blood that provides personal information on
abortion providers and maintains a scorecard of those persons who have been
murdered constitute a threat to the safety of those individuals contained in
the hit-list and thus compel liability under a federal statute proscribing
threats?
Can an Internet Service Provider
with knowledge of a threatening web-site, who could exercise control over the
content of that web-site, who materially contributed to the dissemination of
the threats and who profited from them be held liable under a federal statute
proscribing such threats?
STATEMENT OF FACTS
In January 1996 the American Life
Activists (ALA) unveiled the Nuremberg Files, a web-site dedicated to ensuring
that one day abortion providers will be tried in courts of law for their
crimes against humanity. (Br.
Appellants 3) While comparing
reproductive service providers to Nazi war criminals, the web-site solicits
site visitors for personal information regarding individuals deemed to be
supporters of the pro-choice movement.
Varying type fonts and colors designate whether a particular physician
is still alive or has been wounded or murdered in attacks on abortion
clinics. The names of judges,
politicians and law enforcement officials considered unsympathetic to the
anti-abortion cause appear on the site, as well. Personal information on the web-site ranges from home addresses,
phone numbers, pictures, childrens names, spouses names, and childrens
schools, to individuals social security numbers and car license plate
numbers. Throughout the web-site, icons
display dripping blood and daggers. (R.
5)
Daniel Coast, president and national
director of ALA, is a well known advocate of the viewpoint that it is
appropriate to use lethal force to prevent a doctor from performing
abortions. Similarly, ALA openly supports
violence against abortion providers.
(R. 6) Because of ALA founders
extremist views, they were dismissed from a peaceful anti-abortion group. (R. 5)
A clear atmosphere of violence
against providers of reproductive services exists in our society. Several physicians, whose information
appears in the Nuremberg Files, have been brutally murdered. (R. 6)
Appellee Dr. Mike Nickette, the medical director of Planned Parenting, is,
like his assassinated colleagues, a practicing physician who performs abortions. Personal information regarding Dr. Nickette
and several other doctors and employees of Planned Parenting appear in the
Nuremberg Files.
Brainspring.com is an Internet Service
Provider that hosts numerous web-sites including the Nuremberg Files. As a hosting service, Brainspring maintains
ultimate control over individual web-sites and has the power to remove or edit
any content on its system. Brainspring
also advertises on all web-sites it hosts including the Nuremberg Files. (R. 6).
The FBI and Appellees contacted Brainspring and alerted them that the
Nuremberg Files presented a potential danger and threat to the individuals
listed on the web-site. Despite such
knowledge, Brainspring took no action in either reviewing or removing the
contents of the Nuremberg Files. (R.
6). The FBI informed Appellees of their
inclusion in the web-site and advised them to take security precautions. As a result, Appellees now lead a life of
constant fear: clad in bulletproof vests and disguises, borrowing cars and
varying routes to avoid detection.
In January 1999, Appellees brought
suit in the United States District Court for the District of Ames against ALA
and Daniel Coast and Brainspring.com under 10 U.S.C. § 284, the Freedom of
Access to Building Entrances Act (FABE).
Appellees alleged, inter alia,
that the Nuremberg Files constitutes a true threat to their well-being by
interfering with or intimidating Appellees from performing reproductive
services. A jury, by special verdict,
found each Appellant liable under FABE and awarded each Appellee compensatory
and punitive damages. The District
Court, under FABEs express statutory authority, granted a permanent injunction
against Appellants, requiring removal of the offending web-site, in August
1999. Appellants now appeal the
decision and order of the District Court.
In examining a judgment implicating First
Amendment concerns, issues of law are reviewed de novo but interpretations of
fact merit greater deference. See
Bose Corp. v Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) ([I]n cases raising First
Amendment issues we have repeatedly held that an appellate court has an
obligation to make an independent examination of the whole record in order to
make sure that the judgment does not constitute a forbidden intrusion on the
field of free expression.) (citation omitted). The Bose Court elaborated that independent review does not
equate with de novo review. Id.
at 514, n. 31.
I. APPLICATION
OF FABE IN THIS INSTANCE IS CONSTITUTIONAL AND DOES NOT VIOLATE APPELLANTS
FIRST AMENDMENT RIGHTS.
A. FABE Is Facially Valid As A Content And
Viewpoint Neutral Regulation.
FABE does not regulate
constitutionally protected speech.
Rather, FABE prohibits three types of activity: the use of force,
threat[s] of force and physical obstruction. 10 U.S.C. § 284(a).
In relevant part, FABE imposes civil penalties on anyone who uses
threats of force to, or attempts to knowingly or intentionally injure,
intimidate or interfere with any person because that person has been providing
reproductive health services. See Id.
§ 284(c). Although no court has
interpreted FABE, several circuit courts have addressed the validity of FACE[1]
(Freedom of Access to Clinic Entrances), a strikingly similar statute.[2] See 18 U.S.C. § 248.
Proscribing threats of force that
intimidate does not impose a content-based restriction on speech. Congresss purpose in enacting FABE was not
to discriminate against a particular
idea but to govern particular conduct unprotected by the First Amendment. See S. Rep. No. 103-117, at 23
(1993). See also R.A.V.
v. St. Paul, 505 U.S. 377, 388 (1992) ([T]hreats of violence are
outside the First Amendment). The fact
that FABE prohibits force, threats of force and physical obstruction only when
such acts interfere with the right to obtain or provide reproductive health
services, does not render it content-based.
See Dinwiddie, 76
F.3d at 922; Soderna, 82 F.3d at 1376; American Life League, 47
F.3d at 650.
Similarly, FABE is not viewpoint-based
because it prohibits conduct regardless of the violators position. Despite Appellants argument to the contrary
(Br. Appellants 6), courts interpreting FACE have universally held that the
statute applies regardless of viewpoint.
See Greenhut v. Hand 996 F. Supp 372 (D. N.J. 1998) (applying FACE to a pro-choice defendant); see also Riely
v. Reno, 860 F. Supp. 693, 702 (D.Ariz. 1994) (noting that FACE applies equally to abortion opponents and
abortion rights supporters); cf. R.A.V., 505 U.S. at 390 (Where
the government does not target conduct on the basis of its expressive content,
acts are not shielded from regulation merely because they express a
discriminatory idea or philosophy).
Accordingly, FABEs motive requirement does not discriminate against protected
speech or conduct that expresses an anti-abortion message. Moreover, conduct may be regulated even if
it disproportionately impacts those who hold a certain viewpoint as long as it
is not regulated because of that viewpoint.
See Madsen v. Women's Health Center, 512 U.S. 753, 763-65,
(1994); Dinwiddie, 76 F.3d at 923; See
also United States v. O'Brien, 391 U.S. 367 (1968) (upholding statute prohibiting destruction of draft cards despite
fact that most offenders were opposed to the Vietnam war).
Moreover, FABE is neither
unconstitutionally vague nor overbroad.
See, e.g., Dinwiddie, 76 F.3d at 924. A statute is unconstitutionally vague if it
does not give a person of ordinary intelligence a reasonable opportunity to
know what is prohibited. Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). FABE defines its terms narrowly and in clearly understandable
language. Appellants assert that
uncertainty over the terms physical obstruction, intimidate, and
interfere render FABE impermissibly vague.
(Br. Appellants 12) On the
contrary, the statute explicitly defines the challenged terms. FABE defines "physical
obstruction" as "rendering impassable ingress to or egress from a
facility that provides reproductive health services. . .," "intimidate" as to "place a
person in reasonable apprehension of bodily harm to him- or herself or to
another," and "interfere with" as to "restrict a person's
freedom of movement," 10 U.S.C. §
284(e)(2), (3), and (4). These specific and clear definitions, by
themselves, are sufficient to defeat Appellants vagueness challenge.[3] See also Dinwiddie, 76
F.3d at 924.
Likewise, Appellants overbreath
challenge must fail. A statute is
overbroad only if it reaches a substantial number of impermissible
applications. New York v. Ferber,
458 U.S. 747, 771 (1982). FABE
prohibits only a narrow range of conduct: the use or threat of force, or
nonviolent physical obstruction, that knowingly or intentionally prevents
access to or the provision of reproductive health services. 10 U.S.C. § 284(a). Moreover, the statute contains language
barring its application to expressive conduct protected by the First Amendment,
such as picketing or other peaceful demonstration. Id. § 284(d)(1).
Because FABE only regulates conduct that falls outside First Amendment
protection, i.e. threats of violence, this Court must reject Appellants
overbreath argument. See, e.g., Terry,
101 F.3d at 1421.
FABE, as a content-neutral statute, is
subject to intermediate scrutiny because it may regulate conduct with
expressive elements protected by the First Amendment. See American Life League, 47 F.3d at 651. A statute survives intermediate scrutiny if
it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and
if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest. OBrien, 391 U.S. at 377. FABE furthers the governments interest in
protecting women who obtain reproductive-health services and ensuring that
reproductive-health services remain available.
See H.R. Rep. No. 103-306, at 6 (1993); S.Rep. No. 103-117, at 14-17.
These interests are significant and are not related to restricting free
speech. See Madsen 512
U.S. at 768. By regulating only
unprotected conduct, i.e. uses of force, threats of force, and physical
obstruction, and not peaceful protest, and leaving open ample alternative
methods of communication, FABE satisfies the requirement that it
"proscribe[ ] no more expressive conduct than necessary to protect safe
and reliable access to reproductive health services." American Life League, 47 F.3d at
652. Accordingly, FABE easily survives
the intermediate scrutiny test. Cf.
supra, n. 2.
B.
The
District Court Did Not Err In Finding That ALA And Daniel Coast Communicated
True Threats To Each Of The Appellees In Violation Of FABE.
A clear line exists between expressions
of belief, which are protected by the First Amendment, and threatened or actual
uses of force, which are not. See Wisconsin v. Mitchell, 508 U.S.
476, 484 (1993) ("A physical assault is not ... expressive conduct protected by
the First Amendment"); R.A.V., 505 U.S. at 388; ("[T]hreats of
violence are outside the First Amendment"); Roberts v. United States
Jaycees, 468 U.S. 609, 628 (1984) ([V]iolence or other types of potentially expressive activities
that produce special harms distinct from their communicative impact . . . are
entitled to no constitutional protection);
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) ("The First Amendment does not protect violence"); Watts
v. United States, 394 U.S. 705, 707(1969) (Congress may outlaw threats against President, provided that
"[w]hat is a threat [is] distinguished from what is constitutionally
protected speech."); see also supra n. 2. Consequently, the First Amendment requires a
court or jury applying FABEs prohibition of using threats of force to
differentiate between true threats and protected speech.
The Nuremberg Files Web-site
constitutes a true threat to the well being of the Appellees. According to the legislative history of
FACE, threats of force are regarded as true threats when they are meaningful
and legitimately may be interpreted as serious expressions of an intention to
inflict bodily harm, or when the person uttering the threat could foresee that
the statement would be interpreted by those to whom it is communicated as a
serious expression of an intention to inflict bodily harm. United States v. McMillan, 53 F.
Supp2d 895, 902 (S.D.Miss. 1999) (citing H.R. 103-706). Courts have also examined the definition of
a true threat in analogous contexts. See,
e.g., United States v. Leaverton, 835 F.2d 254, 257 (10th Cir. 1987) (In finding liability under 18 U.S.C. § 844(e) (use of mails to make a threat) the court stated that a "true
threat" means "a serious threat as distinguished from words as mere
political argument, idle talk or jest").
What constitutes a true threat is a
question generally best left to a jury United States v. Malik, 16 F.3d
45, 50-51 (2d Cir. 1994) (interpreting 18 U.S.C. § 876, governing the mailing of threatening
communications); Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir. 1994) (whether plaintiff has shown a true threat is a question of fact
for the jury in interpreting state statute criminalizing interference with
official proceedings); United States v. Khorrami, 895 F.2d
1186, 1192 (7th Cir.), cert. denied, 498 U.S.
986 (1990) (same in interpreting 47 U.S.C. 223(a)(1)(B), governing threatening
telephone calls); United States v. Lincoln, 589 F.2d 379, 382 (8th Cir.
1979) (issue of fact for jury to decide whether letter was threatening
under 18 U.S.C. § 876). The jury in its
special verdict found that the Appellants violated FABE by declaring true
threats against Appellees. In finding
that Appellants web-site levies true threats against Appellees, the trier of
fact is presumed to have applied contemporary community standards. See Hamling v. United States,
418 U.S. 87, 104-105 (1974) (trier of fact is assumed to be inherently familiar with and
capable of applying contemporary community standards). Although the findings of the lower court are
not reviewed under a clearly erroneous standard, see Bose, 466 U.S. at 499, an independent
review of the record inexorably leads to the conclusion that the evidence
supports the findings.
In reviewing whether the web-site
constitutes a true threat an appellate court should consider the threats in
light of their entire factual context, including the surrounding events and
reaction of the listeners. See, e.g.,
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (interpreting 18 U.S.C. § 115, governing threatening family members of
federal officials). In Dinwiddie, the 8th Circuit
stated the following factors should be considered in determining what
constitutes threats of force under FACE: the reaction of the recipient of the
threat and of other listeners, whether the threat was conditional, whether the
threat was communicated directly to its victim, whether the maker of the threat
had made similar statements to the victim in the past and whether the victim
had reason to believe that the maker of the threat had a propensity to engage
in violence. See Dinwiddie,
76 F.3d at 925. The court noted that
this list is not exhaustive, and the presence or absence of any one of its
elements need not be dispositive.[4] Id.
ALA and Coast have forced Appellees to live both personally and
professionally in fear and disguise by unleashing the Nuremberg Files into a
known atmosphere of violence against providers of reproductive services. (R. 7).
Cf. Lovell v. Poway Unified School Dist., 90 F.3d 367,
372-73 (9th Cir. 1996) (considering prevalence of school
violence in considering threat to guidance counselor). Here, Appellees are aware that several
physicians whose names appear in the Nuremberg Files have been murdered and
that the web-site contains information regarding Dr. Mike Nickette. (R. 5, 6).
Moreover, given the ALAs advocacy of force against abortion providers
(R. 5) and continued support of the web-site, Appellees possess a reasonable
belief that ALA promotes violence. With blood dripping from a hit-list of
abortion providers, it is no wonder that Appellees fear for their safety. Cf. Khorrami, 85 F.2d at 1193
(a reasonable jury could conclude that the recipients of defendants wanted
poster would interpret this poster as a serious threat to inflict bodily
harm). In support of their argument
that the Nuremberg Files does not constitute a true threat, Appellants cite
to Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition
of Life Activists, 23 F.Supp.2d 1182 (D.Or.1998). This is the same court that later held a web-site liable under
FACE for compiling personal information against abortion providers. See Planned Parenthood of the
Columbia/Willamette, Inc. v. American Coalition of Life Activists, 41
F.Supp.2d 1130 (D. Or. 1999).
There is no requirement under FABE that
ALA and Coast convey an intent to carry out the threatened conduct themselves. See
Dinwiddie, 76 F.3d at 925, n. 9 (8th Cir.1996) (finding a true threat
under FACE despite defendant never making specific threat to injure doctor). Publicly
announcing threats on the Internet instead of privately should not affect the
test for determining whether the threat is a true threat. Cf. Madsen 512 U.S. 753 at 773
(Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment.)
(emphasis added). Moreover, [t]he fact
that a threat is subtle does not make it less of a threat United States v.
Gilbert, 884 F.2d 454, 457 (9th Cir. 1989) (interpreting 42 U.S.C. § 3631, threats to interfere with housing
rights); see also United States v. Fulmer, 108 F.3d 1486,
1492 (1st Cir. 1997) (The use of ambiguous language does not preclude a statement from
being a threat.) (interpreting 18 U.S.C. § 115).
FABE mandates the application of an objective standard in
determining whether the web-site constitutes a true threat. In interpreting FACE, the Dinwiddie
Court applied an objective analysis. See
Dinwiddie 76 F.3d at 925 (a forbidden threat exists where, the
recipient of the alleged threat could reasonably conclude that it expresses a
determination or intent to injure [someone] presently or in the future.
(citation omitted); see also Hoffman 126 F.3d at 588. By its own language, FABE prohibits conduct
that place[s] a person in reasonable apprehension of bodily harm to him- or
herself or to another. 10 U.S.C. §
284(e)(3). See also S. Rep. 103-117 at 44 (Threats are
covered by [FACE] where it is reasonably foreseeable that the threat would be
interpreted as a serious expression of an intention to inflict bodily harm).
Viewed under such a standard[5],
it is evident that the Nuremberg Files have conveyed true threats that place
a person in reasonable apprehension of bodily harm.[6] An objective standard best satisfies the
purposes of § 284 by recognizing the power of a threat to hinder abortion
providers in the performance of their duties.
Such a standard bests comport with Congresss goal of condemning threats
against abortion providers. This court,
then, need only determine whether those who hear or read the threat reasonably
consider than an actual threat has been made.
United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.), cert. denied, -- U.S. --,
119 S.Ct. 2402 (1999). Given the
reaction of Appellees to the web-site, this standard is easily surpassed. (R. 7).
ALA and Coast maintain the requisite
intent to violate FABE. FABE contains
no requirement of specific intent to threaten.
When a statute contains no such provision, few courts read the First
Amendment as requiring such a showing.[7] The Second Circuit interpreted the intent
requirement of FACE as to obstruct and interfere with the obtaining and
provision of reproductive health services as defined by Congress. Weslin, 156 F.3d at 298. Clearly FACE does not require intent or
ability to carry out the threat. See
id. Similarly, FABE with its
lower mens rea requirement creates a comparable intent standard.[8] The Nuremberg Files clearly rises to the
proscribed level of conduct as it affects the manner in which abortion
providers lead their lives--the victims clearly view the web-site as an
intimidating threat. (R. 17). Accordingly, ALA and Coasts conduct in this
case unequivocally violates FABE. Given
the pervasiveness of the Internet, the contents of the Nuremberg Files and the
reaction of the Appellees, the jury had ample evidence to support the
conclusion that the web-site constituted a true threat and that Appellants
conduct fell within the statute. The Madsen
Court found that [a]s a general matter, we have indicated that in public
debate our own citizens must tolerate insulting, and even outrageous, speech in
order to provide adequate breathing space to the freedoms protected by the
First Amendment. 512 U.S. at 774. This court, however, should not tolerate
threats of force and violence from ALA and Coast. Consequently, this Court should affirm the jurys finding of
liability under FABE.
C. FABE Should Apply Equally To Threats Made
In Cyberspace As It Does To Threats
Made In
More Conventional Media.
Policy concerns dictate that laws
regulating online threats should equate with laws regulating offline
threats. One court examining this issue
stated, [w]hile new technology such as the Internet may complicate analysis
and may sometimes require new or modified laws, it does not in this instance
qualitatively change the analysis under [18 U.S.C. § 875] or under the First Amendment. United States v. Baker, 890 F. Supp.
1375, 1379 (E.D. Mich. 1995) affd
United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). Although the lower court in Reno v.
ACLU, found that when a broad search on the Internet is conducted, there is
often some warning as to the content, no analogous notice is possible with
respect to threats on a web-site.[9] See 929 F. Supp. 824, 851-52 (E.D.
Pa. (1996) (Sloviter, C.J.), affd, 521 U.S. 844 (1997). Threats on the Internet are
instantaneous and more pervasive than threats made through other media. Thus, threats in cyberspace, at the very
least, should be subject to the same rules as threats mailed, published or
verbalized in physical space.
Changes in technology, even massive
changes, are not a sufficient reason for variation in judicial theories. Fidelity to constitutional doctrine requires
application of general principles to the Internet. Despite Renos assertion that the Internet is not as
invasive as broadcast media, Congress disagrees. Compare Reno, 521 U.S. at 869, with Child
Online Protection Act (COPA), Pub. L. No. 105-277 § 1402(1), 112 Stat. 2681, 3417 (1998)[10]
(declaring that the widespread availability of the Internet presents
opportunities for minors to access indecent material in cyberspace). A communication in cyberspace often has
consequences for persons outside the computer network in which the
communication takes place. For example,
merchants can fix prices through communications over the Internet and
individuals in a chat room can defame a person not present. Similarly, the threats levied in cyberspace
against Appellees have physical world consequences. Moreover, Appellees submit that the advances of the Internet are
not remarkably sui generis when
compared with the respective breakthrough technologies of the telegraph and
later the telephone. All media, at
their respective times, enhanced the frequency and reduced the cost of
communication. Courts failed to apply
unique protections to the earlier media and, similarly, traditional
constitutional principles should apply to the Internet.
Holding that a
web-site cannot announce true threats will frustrate Congresss intention in
passing FABE. Admittedly, accessing the
Nuremberg Files requires several affirmative acts. But all actions require affirmative acts; e.g., reading requires
an affirmative act. See Columbia
Broad. Sys, Inc. v. Democratic Natl Comm., 412 U.S. 94, 128 (1973). Although the web-site does not make a
direct threat in the conventional sense, in todays society,
any minor who can read and type on a keyboard can easily access materials on
the Internet. See H.R. Rep. No.
105-775, at 10 (1998) (Commerce Committee report
on COPA). Unlike indecent material, the
Nuremberg Files is not a web-site that can be subject to time, place, and
manner restrictions. Cf. F.C.C.
v. Pacifica Found., 438 U.S. 726 (1978).
Threats are dangerous whether at 10 AM or 10 PM. The contention that the web-site is not
easily accessible is both debatable, see Pub. L. No. 105-277 § 1402(1), and inappositethe availability of the web-site would
affect this Courts analysis only if the Appellees never realized the Nuremberg
Files existed. Such an assumption is
unreasonable given the pervasive nature of the Internet and is not supported by
the record. (R. 6). In fact, Appellees never need to access the
web-site to support a finding that the Nuremberg Files constitutes a
threat. Cf. United States v.
Kelner, 534 F.2d 1020 (2d Cir. 1976) (finding true threats under 18
U.S.C. § 875(c) although made through television station with telecast range of
only fifty miles and no evidence that recipient of threat was even in the
United States).
Application of traditional
constitutional principles to the Internet does not require this Court afford
less protection to a new medium of communication. Rather, Appellees submit that the Internet does not deserve
supplementary safeguards. The Reno Court considered whether the Internet
should receive less protectionnever
whether additional shields should apply.
See Reno, 521 U.S. 844.
It is unwise and unnecessary to shape new principles around the structure
of the Internet. Denver Area Educ.
Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996).
Moreover, this Court should refrain from adapt[ing] [its] First
Amendment doctrine to the new context . . . confront[ed] here. Id. at 779 80 (OConnor, J.,
concurring in part and dissenting in part). Changes in technology require
discipline and adherence to prior First Amendment principles. See id. at 786 (Kennedy, J.,
concurring in part, concurring in the judgment in part and dissenting in part)
(There is no reason to discard [this Courts] existing First Amendment
jurisprudence in answering [a constitutional challenge]). Under a traditional First Amendment
analysis, the true threats communicated by the Nuremberg Files deserve no
First Amendment protection.
Even if this Court finds that the
Internet merits extraordinary constitutional safeguards, the pervasiveness of
this medium requires that threats be strictly regulated. When threats are urged and released into a
greatly enlarged audience, a much greater capacity for civil disruption is
created. The unseen audience of unknown
listeners may contain another Oswald or Sirhan or Ray[11]. Cf. Dinwiddie, 76 F.3d at 925,
n. 9 (no requirement under FACE that defendant carry out threatened conduct
herself). Similarly, the Internet is
more powerful than any sound amplification device known to society. Cf. Dinwiddie, 76 F. 3d at 925
(weighing defendants use of a bullhorn to levy threats against abortion
providers); see also Reno at 869. Society must avoid policies that reinforce
negative tendencies. Accordingly, FABEs objective in
preventing harms to abortion providers is best accomplished by strictly
regulating threats, regardless of the medium in which they may appear.
II.
BRAINSPRING
SHOULD BE HELD LIABLE FOR THE CONTENT OF THE NUREMBERG FILES WEB-SITE
Although FABE does not provide an
explicit cause of action against third parties, this Court can still impose
such liability. Numerous federal
statutes, silent on the issue of third party liability, have been interpreted
by this Court to contain a cause of action against third parties.[12] Such causes of action fall under either
contributory or vicarious liability. As
this Court has stated: for vicarious liability is imposed in virtually all
areas of the law, and the concept of contributory infringement is merely a
species of the broader problem of identifying the circumstances in which it is
just to hold one individual accountable for the actions of another.[13] Contributory liability is based on the
precept that any individual who knowingly participates in illegal conduct
should be held accountable.[14] FABE specifically provides such a cause of
action stating that any individual who knowingly threatens another may be
held liable. What constitutes
knowingly for the purposes of liability will be discussed later. Additionally, vicarious liability imposes
accountability when a third party has the ability to control anothers illegal
conduct yet fails to do so; and, in addition, receives a financial benefit from
allowing such conduct to continue.
Applying either doctrine to Brainsprings actions in this case would
elicit a finding of liability.
B.
Brainspring Can Be Held Liable Under The Doctrine of Contributory
Liability
Two requirements must be proven before contributory liability can be
imposed on a third party: knowledge and material contribution.[15] The question of whether Brainspring knew the
Nuremberg Files site was threatening is a difficult one. Clearly, a standard that attributes
knowledge solely based on notice given by any individual that a particular site
is threatening and illegal would be disastrous. Brainspring cannot be expected to instigate an investigation
every time an individual accuses a particular site of harmful conduct. Mere notice of this nature should not rise
to the level of knowledge. However, if
a party can allege specific facts showing that a web-site is engaging in
illegal or tortious conduct, then an ISP should be under a duty to investigate. In Religious Tech. Ctr v. Netcom Online
Communication Servs, Inc., 907 F. Supp. 1361 (N.D.C.A. 1995), the Court
held that a mere allegation that an on-line bulletin board was hosting a
copyrighted work was an insufficient basis upon which to attribute knowledge to
the ISP. However, when counsel for the
plaintiffs presented the ISP with evidence that the works at issue contained
proper copyright notices, the Court determined that at that point the ISP was
under a duty to investigate. Its
failure to investigate after such specific facts were presented was sufficient
to support a finding of knowledge. See Religious
Tech. Ctr, 907 F. Supp. at 1374-75.[16]
Additionally, cases discussing imposing
liability on distributors of publications for harmful speech have held that
liability will not be imposed unless the plaintiff provides specific facts that
should put the distributor on notice.[17] Again, a mere allegation that certain
materials are harmful is an insufficient basis upon which to attribute
knowledge to the distributor. If,
however, the distributor is presented with sufficient facts giving rise to a
duty to investigate, and the distributor fails to do so, knowledge may be
imputed:
Though the defendant may not have known the exact content of the allegedly libelous statement, it knew enough about the statement so that it should have investigated the statements truth before distributing, or continuing to distribute the publication. . . . Defendant, to establish its non-liability for the allegations herein must show by clear and convincing evidence that its high level employees did not know of the allegedly false statements and did not have a duty to investigate the publication.
Spence v. Flynt, 647 F. Supp. 1266, 1273 (D.Wyo.
1986). In this case, Brainspring was
presented with specific facts, from credible sources, which gave rise to a duty
to investigate. Not only was
Brainspring contacted by the appellees, but also by the FBI. (R. 6).
An opinion from an independent third party, especially a federal law
enforcement agency, that one of Brainsprings sites was a danger and threat to
individuals listed on it should qualify as specific facts giving rise to a duty
to investigate. Despite such notice,
Brainspring failed to take any action, either in reviewing the contents of the
web-site or in removing it from their facilities. Brainsprings failure to investigate the illegal conduct, given
its awareness of specific facts suggesting a duty to investigate, leads to a
finding of knowledge for the purposes of imposing contributory liability under
FABE.[18]
Brainsprings hosting of the Nuremberg
Files also meets the second prong of contributory liability material
contribution. Numerous cases have
imposed contributory liability when third parties knowingly provided the means
and facilities for illegal conduct. Columbia
Pictures Indus., Inc. v. Aveco, Inc., 800 F.2d 59 (3rd Cir. 1986) concluded
that providing the site and facilities for known illegal activity is sufficient
to establish contributory liability.[19] In Fonovisa, Inc. v. Cherry Auction, Inc.,
76 F.3d 259 (9th Cir. 1996), the Court found that an operator of a swap meet
could be held liable for the illegal actions of independent vendors leasing
space at the swap meet. The Court
concluded that without the provision of space provided by the operator of the
swap meet, such conduct would not have been able to take place in the massive
quantities alleged. See Fonovisa,
76 F.3d at 264. By supplying the
necessary marketplace for such conduct, the Brainsprings actions constituted
substantial participation for the purposes of establishing contributory
liability. See Fonovisa,
76 F.3d at 264.
Similarly, without Brainsprings hosting
services, ALA and Coast would not have been able to carry their threatening
message into the homes of millions of people.
In fact, a number of cases have analogized the relationship between
Internet Service Providers and the web-sites they host to that of the
operator-vendor relationship discussed in Fonovisa. Such a relationship goes beyond the simple
landlord-tenant relationship the ISP does more then just lease space, it also
provides the storage and communication of material, and can control the
material posted on its space: NSIs [defendants] role in the Internet is
distinguishable from that of an Internet Service Provider whose computers
provide the actual storage and communications for infringing material, and who
therefore might be more accurately compared to the flea market vendors in Fonovisa
and Hard Rock. Lockheed,
985 F. Supp. at 962. By not only
renting space to ALA and Daniel Coast, but also providing storage and
communication facilities, Brainsprings role is more akin to that of the
operator described in Fonovisa.
By providing not only space, but also hosting services, Brainspring
materially contributed to the harmful conduct in question. Combined with a failure to investigate the
content of the Nuremberg Files, Brainsprings material contribution should
subject it to contributory liability.
C. Brainspring Can Be Held Liable
Under The Doctrine Of Vicarious Liability
Brainspring can also be held accountable
for the threats on the Nuremberg Files under a doctrine of vicarious
liability. Again, courts look for two
requirements before imposing vicarious liability: control and financial
benefit.[20] The question of control is predicated on
whether Brainspring could have controlled ALA and Coasts conduct not whether
Brainspring chose to do so. Courts have
consistently looked at potential as opposed to actual control: the question
before the Court is not whether the Lamberts exercised or delegated
responsibility to another individual, but whether the Lamberts retained the
right to control the copyright activities.
Realsongs v. Gulf Broadcasting, Inc., 824 F. Supp. 89, 92
(M.D.L.a. 1993).
Whether Brainspring retained control can
be found by examining Brainsprings User Policy. Brainsprings Users Policy reserves Brainspring the right to
terminate my account at any time, for any reason. Reserving the power to terminate a subscribers account is prima
facie evidence of control for the purposes of vicarious liability: [defendant]
had the right to terminate vendors for any reason whatsoever and through that
right had the ability to control the activities of vendors on the
premises. Fonovisa, 76 F.3d at
262.
Additionally, Brainsprings attempt in
its User Policy to disclaim liability for the conduct of its subscribers does
not allow it to escape liability.
Despite Brainsprings attempts to shift liability onto its subscribers,
Brainspring is still accountable when those subscribers fail to follow the
rules and regulations in its User Policy:
The fact that Interface instructed exhibitors to comply with the copyright laws does not demonstrate a lack of control. Rather, it is compatible with an inference that Interface, though retaining and exercising control in fact, attempted to shift legal responsibility from itself to others. . . . Interface must shoulder responsibility when the instruction is not followed.
Polygram
Intl Publishing v. Nevada/TIG Inc.,
855 F. Supp. 1314, 1329 (D.Mass. 1994).
Polygrams reasoning is consistent with the premise that courts
should evaluate potential not actual control.
Potential control can be derived from an explicit contractual provision
(whether followed or not), or from the technological ability to enforce certain
rules. In this case both forms of
potential control are present, therefore, Brainspring meets the first
requirement of vicarious liability.
Brainspring also gains a financial
benefit from hosting the Nuremberg Files web-site, thus meeting the second
prong of vicarious liability. Third
parties may be held liable when they either receive a fixed portion of the
financial gain from others illegal conduct, or when the illegal conduct
enhances the overall value of the third partys business. See Polygram, 855 F. Supp. at
1330-33. Although Brainspring does not
receive a fixed gain from ALA or Coast, the overall value of its services are
enhanced by its refusal to remove the Nuremberg Files. Brainsprings policy of refusing to take
enforcement actions against its subscribers enhances its overall attractiveness
to consumers. Brainsprings policy
attracts those individuals seeking to use the Internet for illegal purposes,
thereby increasing Brainsprings subscriber list and, consequently, its
advertising revenues.[21]
Second, the mere hosting of the Nuremberg
Files by Brainspring means that Brainsprings revenues increase with every
individual that visits the web-site.
For better or worse, we live in a society where violence and illegal
activity attract attention. Knowing
this, Brainspring has a direct financial interest in keeping those web-sites
whose conduct is the most egregious accessible because it is precisely those
types of web-sites that garner attention.
By profiting off of the Nuremberg Files web-site, Brainspring meets the
financial benefit requirement of vicarious liability. As stated in Realsongs, the courts have not interpreted
the direct financial interest requirement so narrowly. Defendants still have a direct financial
interest in the infringing activity if the station is a for-profit enterprise
and defendants benefit from its operation.
824 F. Supp. at 92.
Finding a legal doctrine which can
hold an ISP liable for the conduct of its users, and showing that Brainspring
meets that standard of liability, is the easy part of this case. What is the more difficult question is
whether or not this Court should
hold ISPs liable for the conduct of its users.
The policy justifications for holding ISPs accountable under either the
doctrine of contributory or vicarious are similar, but some differences will be
noted.
Under either doctrine, holding ISPs
liable is the only effective means for injured plaintiffs to obtain proper
redress. First, plaintiffs may have a
difficult time in even locating the original author of a web-site or message
posted on the Internet. One of the
great benefits of the Internet is that it allows individuals to interact
anonymously. The benefits of anonymous
speech should be taken seriously: the ability to speak ones mind without the
burden of the other party knowing all the facts about ones identity can foster
open communication and robust debate.
Furthermore, it permits persons to obtain information relevant to a
sensitive or intimate condition without fear of embarrassment. Columbia Ins. Co. v. Seedscandy.com,
185 F.R.D. 573, 578 (N.D.C.A. 1999).
However, the price of anonymous speech is that those individuals who
seek to do harm may do so without fear of accountability. The nature of the Internet is such that
those individuals who wish to take advantage of its benefits may do so at the
expense of law abiding citizens:
With the rise of the Internet has come the ability to commit certain tortious acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor from ISP to ISP, with little or no hope of actually discovering the identity of the tortfeasor.
Columbia Ins., 185 F.R.D. at 578. If this Court values providing a remedy for any harms committed on-line, especially here where the harms resulted in four deaths, it must impose liability on ISPs. The alternative would be a system that requires full identification of all conduct and communication over the Internet so that anonymous users could not escape accountability. The benefits of anonymous speech, combined with serious concerns as to the impracticality of maintaining accurate identification over the Internet, demands that this Court hold ISPs liable for subscriber conduct.
Beyond providing a remedy for
injured parties, holding ISPs liable comports with basic notions of fairness
and justice. The doctrine of
contributory liability only holds third parties accountable when those parties
knowingly materially contribute to harmful conduct. As noted earlier (see footnote 3), the common law justification
for imposing contributory liability was based on notions of justice that one
who knowingly participates or further a tortious act is jointly and severally
liable with the prime tortfeasor. Screen
Gems-Columbia Music, Inc. v. Mark Fi Records, Inc., 256 F. Supp. 399, 403
(S.D.N.Y. 1966).
Additionally, the basic policy
rationale behind imposing vicarious liability on third parties is that such
parties are in the best position to compensate injured parties and control the
harmful conduct: by focusing on benefit received from and control over an
enterprise, a court can evaluate the defendants ability to spread losses and
police conduct within the enterprise, as well as the underlying fairness of
holding the defendant liable. Polygram,
855 F. Supp. at 1326. These
justifications are no different in the context of the Internet. From a financial perspective, ISPs should be
held accountable to injured parties.
First, individual tortfeasors will often be judgment proof leaving an
injured party with no chance of financial recovery. Second, any profits resulting from increased viewing of a particular
web-site (advertising revenue) goes directly to the ISP and not to the
individual web-site. Here, ALA and
Coast do not financially profit as a result of increased viewing of the
Nuremberg Files, it is Brainsprings revenues that go up. It is only fair to hold the party that
benefits from such conduct accountable to injured parties:
When an individual seeks to profit from an enterprise in which identifiable types of losses are expected to occur, it is ordinarily fair and reasonable to place responsibility for those losses on the person who profits, even if that person makes arrangements for others to perform the acts that foreseeably cause the losses. . . . The enterprise and the person profiting from it are better able than either the innocent injured plaintiff or the person whose act caused the loss to distribute the costs and to shift them to others who have profited from the enterprise.
Polygram, 855 F. Supp. at 1325. In terms of both fairness, and the optimal allocation of resources, it makes sense to hold ISPs financially liable for the conduct of their users when they financially benefit from that conduct.
ISPs should also be held accountable
under either doctrine of liability because they are in the best position to
control the harmful conduct in question.
One of the most important goals of recent congressional regulation of
the Internet has been to find ways to encourage ISPs to self regulate against
offensive and harmful materials.[22] One way to encourage such behavior is to
impose liability against ISPs when they know of harmful conduct, yet fail to
take reasonable steps to investigate or remove the responsible content. The benefit of this approach is that ISPs
will have a natural incentive to remove harmful (illegal or tortious) content
on the Internet. This will eliminate
the need for government regulation of Internet content, and reduces the
likelihood of litigation to stop the dissemination of such content. Because of the control that ISPs can exert
over individuals subscribers (many of whom may not be known), liability,
especially in the form of injunctive relief, is best placed on the shoulders of
the party that can most effectively stop the harmful conduct in this case,
Brainspring.
One response typically made to such
an approach suggests that if ISPs are only liable when they leave harmful
content on their service, why would they not always choose to remove such
content. The potential result would be
a significant decrease on all Internet expression as ISPs would be likely to
remove all borderline content.[23] There are a number of responses to this
argument. First, liability should only
be imposed on ISPs when they fail to act reasonably. If an ISP fails to investigate a particular site when presented
with specific facts suggesting illegal or tortious conduct, or when an ISP
removes content without such facts, only then will liability be imposed.[24] Thus, the legal incentive will persuade ISPs
to act in a reasonable manner. Second,
the marketplace is likely to encourage ISPs to act reasonably. Those ISPs who do act reasonably, and only
remove truly harmful content, will be of far greater value to consumers than
those ISPs that quickly remove any questionable content when threatened with
litigation. Third, the threat of financial
damages to ISPs is not so great as to create a natural incentive to remove all
borderline content. ISPs are only
liable for the damages sustained from the time they receive effective notice
that harmful content is being posted on a particular hosted site. However, in Internet time, that amount is
likely to be exceptionally small.
Because widespread dissemination and communication over the Internet is
instantaneous, liability from the point of notice is far past the point where
most of the damage has occurred.
Therefore, the only likely legal judgment against an ISP will be for
injunctive and declaratory relief. The
financial threat of litigation is not so great as to create a natural incentive
for ISPs to remove all borderline content.
Finally, appellants argue that
recent cases deciding ISP liability based on the actions of subscribers have
not imposed third party liability.
However, the cases cited by appellants involving causes of action based
on common law torts of libel or defamation almost universally refused to impose
liability because of CDA § 230 immunity.
In fact, in one such case, the Court refused to hold an ISP liable for
the conduct of its subscribers despite its desire to do so because of the
statutory immunity issue:
If it were writing on a clean slate, this Court would agree with plaintiffs. AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. . . . Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor Congress has conferred immunity from tort liability as an incentive to ISPs to self-police the Internet for obscenity and other offensive material, even where self-policing is unsuccessful or not even attempted.
Blumenthal
v. Drudge, 992 F. Supp.
44 at 52-52 (D.D.C. 1998). As Drudge
notes, analogizing current standards of liability for defamation and libel to
the Internet is inappropriate. See
Id. In traditional print media
liability does not ordinarily fall on the distributor because even if the
author can not be found, or is judgment proof, the injured party can still hold
the publisher accountable for the authors actions. In the Internet world, all individuals are both authors and
publishers with the ISPs acting as distributors. The lack of a publisher in the online world, in addition to the
greater services provided by ISPs, demands that the traditional distributor
standard of liability should not be applied in gauging third party liability on
the Internet. Instead, a doctrine of
liability that recognizes the role that ISPs play in controlling content,
providing services, and their ability to shift losses demands the application
of contributory or vicarious liability in holding ISPs liable for the content
of their subscribers.
Additionally, the torts of libel and
defamation involve common law restrictions on speech, which implicate a wide
range of First Amendment concerns.
Alternatively, FABE is a federal statute, which outlaws only conduct.[25] Therefore, it is more appropriate to analyze
cases discussing the policy rationale for imposing liability on third parties
in cases arising under federal law where conduct not speech is involved. Indeed, as shown by the numerous instances
of ISP liability being imposed in cases involving claims arising under the
federal copyright and trademark statutes, third party liability has been
routinely imposed in the Internet context.[26] Despite the assertions of appellants (Br.
20-1), courts are willing to hold third party ISPs liable for copyright or
trademark infringement under either the doctrine of contributory or vicarious
liability. Courts are simply unwilling
to hold ISPs directly liable for such infringement. See Religious Tech. Ctr., 907 F. Supp. at 1375; Lockheed
Martin 985 F. Supp. at 962-63; see also supra
n.16.
Appellees are entitled to permanent
injunctive relief because the harm they suffer will continue unless Appellants
actions are enjoined. See SEC
v. First Jersey Sec., Inc., 101 F.3d 1450, 1477 (2d Cir. 1996) (internal quotations omitted) (An injunction prohibiting a party
from violating statutory provisions is appropriate where there is a likelihood
that unless enjoined, the violations will continue). ALA and Coasts use of threats and intimidation in violation of
FABE have been facilitated by the use of the Internet through Brainsprings
hosting service. Each day, Appellees
lives and security are endangered because of the dissemination of ALA and
Coasts unlawful threats against them.
Monetary relief alone cannot address that harm. As the District Court found, In the absence
of an injunction, plaintiffs will continue to live as they did before the
trial: clad in bulletproof vests and disguises, borrowing cars and varying
routes to avoid detection, and constantly in fear of the bodily harm with which
they have been threatened. (R.
17). The interests advanced by the
District Courts injunctionprotecting the safety of the staff and patients of
Planned Parenting is quite sufficient to justify an appropriately tailored
injunction. . . . Madsen, 512
U.S. at 768.
Additionally, the narrowly tailored
injunction issued by the District Court fails to have a chilling effect upon
speech and therefore does not constitute a prior restraint. In Schenck v. Pro-Choice Network of Western New York,
the Supreme Court rejected the prior restraint argument, noting the injunction
left open alternative channels of communication to protestors. See Schenck,
519 U.S. 357, 374, n. 6 (1997). The
Court further explained the injunction was issued because of the illegal
conduct of the defendants, not because of the content of their expression. See Id. Here, the injunction still allows a variety
of options for ALA and Coast to express their views; they are simply prohibited
from making and publishing threats. See
Madsen, 512 U.S. at 764, n. 2.
Also, enforcing the injunction against Brainspring fails to chill speech
as Brainspring is only enjoined from hosting these particular threats. The record shows systematic illegal conduct
by ALA and Coast against the Appellees.
Accordingly, this Court should affirm the District Courts issuance of
the permanent injunction to prevent by any means the continued dissemination of
such threats.
For the aforementioned reasons, the
judgment of the District Court should be affirmed.
Respectfully
submitted,
Stuart Adam Graiwer
Michael E. Siegel
Attorneys
for the Appellees
[1] FABE is identical to FACE save for the
lowering of the mens rea standard from intentionally to knowingly or intentionally. See 10 U.S.C. § 284 (emphasis
added). Accordingly, citations to case
law interpreting FACE are pertinent here.
This brief notes the practical distinction between the two statutes
where relevant.
[2] These circuit courts
have considered constitutional challenges to FACE and have found the statute to
be constitutional. See United States v. Weslin, 156 F.3d 292 (2d
Cir. 1998), cert. denied, -- U.S. --, 119 S.Ct. 804
(1999); United States v. Wilson, 154 F.3d 658 (7th Cir. 1998), cert. denied, -- U.S. --, 119 S.Ct. 824
(1999); United States v. Bird, 124 F.3d 667 (5th Cir. 1997), cert. denied, -- U.S. --, 118 S.Ct. 1189
(1998); Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997), cert. denied, -- U.S. --, 118 S.Ct. 1830
(1998); Terry v. Reno, 101 F.3d 1412 (D.C. Cir.), cert. denied,
520 U.S. 1264 (1996); United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied,
519 U.S. 1006 (1996); United States v. Dinwiddie, 76 F.3d 913 (8th
Cir.), cert. denied, 519 U.S. 1043
(1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995); American Life League, Inc. v. Reno, 47 F.3d 642
(4th Cir.), cert. denied,
516 U.S. 809 (1995). Appellants cite to only one court to
support the argument that FABE is unconstitutional but neglect to mention that
this case has subsequently been overruled.
(Br. Appellants 2) See Hoffman,
126 F.3d 575.
[3]Cf. Cameron v. Johnson, where the Supreme Court
rejected a vagueness challenge to an anti-picketing ordinance that included the
terms "interfere with" and "obstruct." 390 U.S. 611, 612 n. 1 (1968) (ordinance
prohibited "picketing. . . in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from any. . . county. . .
courthouses. . . .")
[4] Appellants thus incorrectly argue that
the failure to make a direct communication defeats a finding that a threat
exists. (Br. Appellants 9).
[5]
Appeals courts
have applied objective tests in analogous contexts to determine whether a
particular statement may be properly considered a threat. See, e.g., United States v. Miller,
115 F.3d 361, 363 (6th Cir.), cert. denied, -- U.S. --, 118 U.S. 213
(1997) (reasonable person standard employed in determining whether statement is
threat under 18 U.S.C. § 871, governing threats against the President); Gilbert, 884
F.2d at 456-57 (same in applying 42
U.S.C. § 3631); United States v. Davis, 876 F.2d 71, 73 (9th Cir.1988) cert. denied,
493 U.S. 866 (1989) (same in applying 18 U.S.C. § 876).
[6] Appellees submit that even under a subjective
standard, because ALA and Coast undeniably desire to interfere with
reproductive services, such a standard is met and FABE imposes liability.
[7] Six circuits have
explicitly held that 18 U.S.C. § 875(c), governing threats to injure, requires
general intent. See United States v. Francis, 164 F.3d
120, 121 (2d Cir. 1999); United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.
1997); United States v. Myers, 104 F.3d 76, 81 (5th Cir.), cert. denied, 520 U.S. 1218 (1997); United States v. Himelwright,
42 F.3d 777, 783 (3d Cir. 1994); United States v. Darby, 37 F.3d 1059, 1066 (4th
Cir. 1994); United States v. DeAndino, 958 F.2d 146, 150 (6th
Cir. 1992).
[8] FACE requires that a violation must be
made intentionally. FABE, in contrast,
mandates that liability will inure if actions are undertaken knowingly or intentionally. As ALA and Coasts conduct would be
prohibited under the stricter standard of FACE, their conduct should be
proscribed by the more lenient standard for imposing liability under FABE.
[9] While Internet content filters can sort
indecent web-sites by noting a number of offensive terms, no comparable
device would apply to threats on a web-site, for threats are regarded in light
of their overall factual context.
[10] A district court has enjoined COPA
without any discussion of invasiveness.
See ACLU v. Reno, 31 F. Supp.2d 473 (E.D.Pa. 1999).
[11] Appellees concede that a finding of
liability against ALA and Coast for maintaining their views supporting violence
may violate the 1st Amendment. See
Brandenburg v. Ohio, 395 U.S. 444 (1969). But application of FABE in this instance
punishes true threatsnot the mere advocacy of violence. See id. at 448. Appellees decline to address the issue as to
whether the Nuremberg Files constitutes an incitement to illegal conduct for
the web-site is proscribable as a true threat. Courts interpreting FACE have found the Brandenburg line
of cases not applicable. See, e.g.,
Dinwiddie, 76 F.3d at 922, n. 5 (Brandenburg test does not apply
to statutes that prohibit threats).
Thus, liability under FABE does not require a finding of incitement to imminent
lawless action.
[12] See, e.g., 17 U.S.C. § 101: The
Federal Copyright Act. The absence of
such express language in the copyright statute does not preclude the imposition
of liability for copyright infringements on certain parties who have not themselves
engaged in the infringing activity. Sony
Corporation v. Universal City Studies, Inc., 464 U.S. 417, 435 (1984). See also, Inwood
Laboratories v. Ives Laboratories, 456 U.S. 844, 844-46, (1982) for a
discussion applying similar principles to federal trademark law (Lanham
Trade-Mark Act, 15 U.S.C. § 1114, 1125).
[13] Sony, 464 U.S. at 435.
[14] Based on the common law tort of
enterprise liability. Established when
one knows of anothers tortious conduct and substantially aids or encourages
that endeavor. See Restatement
(Second) of Torts § 876(b) (1977).
[15] The knowingly standard provided by the
FABE statute suggests a form of contributory liability. Appellees concede that such a standard
requires finding both knowledge of the conduct and participation or material
contribution to such conduct before liability can be imposed.
[16] In Religious Tech Ctr., the Court
held that if the plaintiffs proved that the ISP knew of the infringing material
on its site, and failed to remove such material, such action would be
sufficient to constitute substantial participation for the purposes of
contributory infringement: if plaintiffs can prove the knowledge element,
Netcom will be liable for contributory infringement since its failure to stop
an infringing copy from being distributed worldwide constitutes substantial
participation in Erlichs public distribution of the message. See Religious Tech. Ctr., 907 F.
Supp. 1361, 1374 (N.D.C.A. 1995). Here,
Brainspring knew of the threatening nature of the web-site and failed to remove
the site from its facilities. Such
action is responsible for the worldwide distribution of the threatening conduct
at issue and, according to Religious Tech Ctr., should be sufficient to
support a finding of contributory liability against Brainspring.
[17] Lewis v. Time, Inc., 83 F.R.D.
455, 465 (C.D.C.A. 1979)
[18] The duty to investigate is judged under
a reasonable person standard. See
Lockheed Martin Corp. v. Network Solutions Inc., 985 F. Supp. 949, 965
(C.D.C.A. 1997); Religious Tech Ctr. v. Netcom Online Communication Servs
Inc., 907 F. Supp. 1361, 1374 (N.D.C.A. 1995).
[19] See also Demetriades v.
Kaufmann, 690 F. Supp. 289, 293 (S.D.N.Y. 1988); Playboy Enter. v. Russ
Hardenburgh, Inc., 982 F. Supp. 503 (N.D. Ohio 1997).
[20] See, e.g., Demetriades, 690
F. Supp. at 293 (benefit and control are the signposts of vicarious
liability)
[21] In Fonovisa, 76 F.3d at 263, the
sale of pirated recordings at the swap meet was found to be a draw for
customers. Although the swap meet
operator did not receive a direct gain from those sales, the increased
attractiveness of the swap meet because of such sales was sufficient to meet
the requirement of financial benefit under vicarious liability.
[22] See 47 U.S.C. § 230 - Communications Decency Act (CDA)
[23] See Zeran v. America Online
Inc., 129 F.3d 327, 331 (4th Cir., 1997)
[24] To the extent that this conception of
liability conflicts with recent cases analyzing the purposes behind the CDA,
those cases may have misinterpreted the CDA.
Regardless, because the statute at issue in this case is not affected by
the CDA, the Court is free to apply any doctrine of liability to hold third
parties accountable. See CDA, 47
U.S.C. § 230(e)(1): Nothing in this section shall be construed to impair the
enforcement of
any other Federal Criminal Statute.
[25] See supra Section I.A.
[26] Recent amendments to the Copyright Act
(17 U.S.C. § 512) have attempted to limit the liability of Internet Service
Providers for the distribution of copyrighted material online. However, the recent amendments still provide
full injunctive remedies against ISPs, and monetary damages against ISPs in
certain circumstances.