Sen. Hatch suggests ban on Internet speech advocating the com miss ion of violent crime

[Volokh, Eugene]

        It seems to me that the threat exception must be seen as separate
from the incitement exception, and have its own boundaries (though the
boundaries are now ill-defined).  As I've argued before, the troublesome
precedent for finding the Nuremberg Files liable under a threat theory is
NAACP v. Claiborne Hardware (which you might recall also involved naming
names, there of boycott violators).

        I also suspect that the names-and-addresses point -- as well as some
recent cyberspace speech restriction proposals, such as proposed bans on
distribution of bombmaking information -- implicates yet a third potential
exception, albeit one the Court has not yet recognized:  A
crime-facilitating-speech exception, a la Rice v. Paladin Press.  I'm not
sure such an exception should exist, but I do think the crime facilitation
angle raises a different set of questions than incitement or threats.

> -----Original Message-----
> From: Conkle, Daniel O. [SMTP:conkle at INDIANA.EDU]
> Sent: Thursday, September 16, 1999 7:09 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Sen. Hatch suggests ban on Internet speech advocating
> the com miss ion of violent crime
>
> Eugene's posting--and Hatch's proposal--remind me of the "Nuremberg
> files,"
> anti-abortion web site case.  Among other things, the web site reportedly
> posted the names and addresses of abortion doctors and drew lines through
> the names of doctors who had been killed.  Although the defendants argued
> otherwise, the district court concluded that the postings amounted to the
> advocacy of violence against the named doctors.
>
> In an conclusory ruling, the district court found no First Amendment
> protection, saying that the web site postings were "true threats" (if I
> remember the court's language correctly).
>
> My question is this:  how does the notion of unprotected "threats" relate
> to
> Brandenburg and its strict requirements limiting permissible regulation to
> the incitement of imminent lawless conduct?  If one advocates unlawful
> acts
> of violence against a specific, named individual, even in a decidedly
> political context, does that make the advocacy a "threat" that can be
> prohibited without regard to Brandenburg?  Or does a "threat" require that
> the speaker himself or herself be the one who is threatening to engage in
> the act of violence (and not simply advocating that others do so)?  If one
> reads the "threat" category expansively, it would seem to undermine
> Brandenburg.  And yet Brandenburg arguably does not focus on the issue of
> "naming names" in the manner of the "Nuremberg files."
>
> Dan Conkle
> **********************************
> Daniel O. Conkle
> Professor of Law
> Indiana University School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail conkle at indiana.edu
> **********************************
>
>
>  -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
> Sent: Wednesday, September 15, 1999 10:19 PM
> To: CONLAWPROF at LISTSERV.UCLA.EDU
> Subject: Sen. Hatch suggests ban on Internet speech advocating the commiss
> ion of violent crime
>
>
>
>  [snipping everything but a portion of Sen. Hatch's statement]
>
> [statement by Sen. Hatch:]
>
>          I am also contemplating a measure to make it a crime to knowingly
> or intentionally advocate on the Internet the commission of a crime of
> physical violence against a person or the property of any individual or
> group or class of individuals. Maybe, with this legislation, we will be
> able
> to deter heinous incitements to violence not yet committed on the
> Internet.
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