I.  Controversy Continues Over ‘Nuremberg Files’ Web Site

    The controversy over the virulently anti-abortion Web site known as “The Nuremberg Files” continued in 2000 with litigation in both federal and state courts.  The U.S. Court of Appeals for the Ninth Circuit in September heard oral argument in the appeal from a $108-million judgment and injunction based on an Oregon district court’s finding that the Web site constituted a “true threat” against abortion service providers.  Meanwhile, a state court in Georgia threw out a lawsuit filed by the Web site’s publisher against MindSpring Enterprises, Inc. (now EarthLink, Inc.) for termination of Internet service.  MindSpring had canceled service following the Oregon verdict when it concluded that The Nuremberg Files violated its Terms of Service and Appropriate Use Policy.

Background

    The Web site at the center of the controversy argued that abortion is murder and stated that “[a] coalition of concerned citizens throughout the USA is cooperating in collecting dossiers on abortionists in anticipation that one day we may be able to hold them on trial for crimes against humanity.”  Hence the name “Nuremberg Files.”  The Web site contained the names of approximately 200 people it labeled “abortionists,” as well as the names of over 200 others, including the president of the United States and other politicians (identified as “mouthpieces”) and numerous federal judges (described as “shysters”). 

    In addition to lists of names, the Web site also provided identifying personal information -- such as home addresses, phone numbers, and photographs -- of several providers of family planning services.  The Nuremberg Files also presented information on some individuals in a “wanted poster” format.  Names of clinic workers who had been murdered by antiabortion activists were crossed off the list while the names of those who were injured appeared in lightened script.  As of January 1999, eight persons who had been killed were listed in The Nuremberg Files with strikes through their names.  The names of 14 others were shaded in gray.

Federal Litigation

    Planned Parenthood of the Columbia/Willamette, Inc., along with providers of family planning services, brought action under federal racketeering law as well as the Freedom of Access to Clinic Entrances Act, which prohibits the use of “force or threat of force or by physical obstruction, intentionally ... intimidates or interferes with ... any person ... from, obtaining or providing reproductive services.”  18 U.S.C.A. Sec. 248.  They argued that The Nuremberg Files was not protected by the First Amendment because the Web site constituted a threat, not mere advocacy. 

    Although the district court agreed that “the statements at issue do not contain any expressly or apparently threatening language,” it held that it was for the jury to decide, based on the entire factual context, whether the Web site constituted a “true threat.”  Planned Parenthood of the Columbia/Willamette, Inc., v. American Coalition of Life Activists, 23 F. Supp. 2d 1182, 1193-94 (D. Ore. 1998).

    In early 1999 the jury awarded the plaintiffs a judgment of $107.9 million.  This was followed by a court order enjoining the defendants in that case from publishing or contributing to “The Nuremberg Files,” or from providing additional threatening material concerning the plaintiffs “to any mirror site that may be created.”  Planned Parenthood of the Columbia/Willamette, Inc., v. American Coalition of Life Activists, 41 F. Supp. 2d 1130, 1154 (D. Ore. 1999). 

    The court agreed that the Web site represented a “blatant and illegal communication of true threats to kill” and “totally reject[ed] the defendants’ attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from providing abortion services.”  Id.

    The Ninth Circuit appeal from this decision was argued Sept. 12, 2000.  The issues in the case have divided many in what loosely may be called the “free speech community.”  Some agree with the district court that the speech in question is a threat that is unprotected by the First Amendment.  The ACLU, on the other hand, has staked out a middle-ground position, arguing that the judgment should be upheld but that the injunction was too restrictive.  Howard Mintz, “Abortion foes pursue appeal over net freedom,” San Jose Mercury News, Sept. 10, 2000. 

    Others argue that The Nuremberg Files decision establishes a much lower burden for government restrictions on “threats” as opposed to “incitements,” primarily by eliminating the need to prove intent of the speaker and imminent danger presented by the speech.  Prof. Steven G. Gey has observed that this approach “produces a standard that is little different from that which provided hostile juries nearly unfettered discretion to punish political radicals in the Red Scare period immediately following World War I.”  Steven G. Gey, “The Nuremberg Files and the First Amendment value of threats,” 78 Tex. L. Rev. 541, 576 (February 2000).  Whatever the Ninth Circuit decides, many observers expect the case to go to the U.S. Supreme Court.

State Litigation

    Disputes over The Nuremberg Files also resulted in litigation in Georgia state court against MindSpring Enterprises, the Internet service provider (ISP) that hosted the Web site between January 1997 and February 1999.  Neal Horsley, the Web site’s publisher (who was not a defendant in the Oregon case), sued MindSpring for constitutional deprivations, breach of contract, and a host of other asserted violations of law.  MindSpring had terminated Horsley’s Internet service under the terms of its contract after concluding that the Web site violated its Terms of Service and Appropriate Use Policy.     On July 20, 2000, the Superior Court of Gwinnett County, Ga., granted summary judgment in MindSpring’s favor.  Horsley v. MindSpring Enterprises, Inc., Civil Action No. 99A-9543-4 (Gwinnett County Super. Ct. 2000).  The court found that the terms of the agreement between MindSpring and Horsley barred Horsley’s claims, as did federal statutory and constitutional law.  Specifically, the court found that Section 230 of the Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be held liable on account of ... [a]ny action voluntarily taken in good faith to restrict access to or availability of material that the provider considers to be ... excessively violent, harassing, or otherwise objectionable.”  See 47 U.S.C. Sec. 230(c)(2)(A). 

    The purpose of Section 230, the court found, is to allow ISPs to enforce -- or not -- acceptable- use policies without fear of liability.  As the Fourth Circuit has explained, “Congress enacted Section 230 to remove ... disincentives to self-regulation” because it feared “that the specter of liability would ... deter service providers from blocking and screening offensive material.”  Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998).  “In line with this purpose, Section 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.”     The court also rejected Horsley’s constitutional claims against MindSpring, finding that ISPs are not public utilities against which the plaintiff could assert an enforceable right of access.  It joined a growing body of cases in which courts have held that ISPs are not governmental actors.  E.g., Howard v. America Online, Inc., 208 F.3d 741, 754 (9th Cir. 2000) (rejecting constitutional claims against AOL for lack of state action);  Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 443-44 (E.D. Pa. 1996); Thomas v. Network Solutions, Inc., 176 F.3d 500, 511 (D.C. Cir. 1999), cert. denied, 120 S. Ct. 934 (2000) (holding that company in charge of Internet domain names is a private actor); Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp. 2d 289 (E.D.N.Y. 2000) (same).     Instead, the court found that any imposition of liability stemming from MindSpring’s exercise of editorial prerogatives would violate its rights under the First and Fourteenth amendments.  It agreed that a private business, like MindSpring, “is free to choose the content of messages with which its name and reputation will be associated and such a choice is not the exercise of a public function.”  Carlin Communications, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1361 (11th Cir. 1986).  See also Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1297 (9th Cir. 1987) (private decision by common carrier to restrict the content of messages sent by a subscriber “cannot possibly be said to be a ‘power traditionally exclusively reserved’ to the government”). 

    According to the court’s decision, MindSpring has a First Amendment right to determine whether its system can be used as a platform for Horsley’s strident anti-abortion message.  See Pacific Gas & Elec. Co. v. Public Util. Comm’n. of Cal., 475 U.S. 1, 20 (1986) (“For corporations as for individuals, the choice to speak includes within it the choice of what not to say.”). 

    The Superior Court decision is currently on appeal to the Georgia Court of Appeals.

Mixed Reactions

    Just as the Oregon verdict against The Nuremberg Files produced a range of reactions, so has the Georgia decision affirming an ISP’s ability to terminate service to a customer for what it considers to be “bad” speech.  Even some people who agree with the Oregon decision consider contractual limits on speech as threatening to First Amendment values.  However, the difference between the two decisions in First Amendment terms is significant: In Planned Parenthood the penalty imposed for “bad” speech is a fine in excess of $100 million and a prohibition on future speech; in Horsley v. MindSpring, it is a requirement that the speaker find a different ISP.

    Despite these decisions, The Nuremberg Files is still available on the Internet.  Just after the Oregon verdict was issued, the Web site was “mirrored” immediately on other Internet sites around the world, where it continues to exist.  The Nuremberg Files has since moved to another Internet host, and now is available at http://www.ru486registry.com/atrocity.  In addition, Neal Horsley sells copies of The Nuremberg Files on CD-ROM online.  See http://www.mttu.com/Articles/Nuremberg%20Files%20Goes%20CD.htm.  (“$12.95 plus $3 shipping brings you a CD-ROM containing the entire Christian Gallery Web site that hosted The Nuremberg Files.  See for yourself what the new Lords of the Internet refuse to allow the world to see.”).

The author represents EarthLink, Inc. in Horsley v. MindSpring.