FC: More on Sen. Hatch and talking about crimes being illegal

[Declan McCullagh <declan () well com>]

While we're on the topic of free speech, I have included an interesting
historical note from Cato's Solveig Singleton at the end.

Eugene Volokh of UCLA law replies to my original msg:

>         The law generally punishes people who plan a particular crime with a
> particular person (conspiracy), urge the particular person to commit a
> particular crime (solicitation), or even just intentionally provide
> information that makes it easier for someone to provide a particular crime
> (aiding and abetting).  If I go to my friend Bob the Burglar and ask "Can
you
> tell me how I can best break into this house?," and he gives me some tricks
> of the trade, Bob is liable as an aider and abettor or a conspirator. 
> Likewise, suggesting to a person that he go and beat up my enemy would make
> me liable for solicitation.
>
>         And I think that's as it should be.  Perhaps these things
shouldn't be
> automatic felonies (and the BORGSLAYER example, I suspect, wouldn't be, even
> under Hatch's bill, because it's probably not a crime of *physical*
> violence), but I don't think they should be protected speech, and I think
> they should be punishable, both as a matter of justice and as a matter of
> deterrence.  True, we can imagine situations where the pranks are so small,
> the participation is so slight, or the defendants are so sympathetic (just a
> kid having fun, "didn't mean no harm") that prosecutors should exercise
their
> discretion not to prosecute, or, better yet, the law should make the conduct
> a small-time misdemeanor.  I also don't think this is the right place for
the
> *federal* government to intervene, and I agree that whether it's done by the
> Internet or not shouldn't really matter.  Still, I don't think the law is
> either unconstitutional or even that oppressive.
>
>                 The main constitutional problem, I think, is with the law's
> effect on speech that isn't focused on particular crimes or said to
> particular people.  "The proletariat should rise up and destroy their
> capitalist oppressors."  "Environmentalists who spike trees and destroy
> logging companies' property are doing the right thing."  "If whites don't
> give us equal rights peacefully, we'll have to turn to violence" (or its
> equivalent, "no justice, no peace").  Or, if the Court reverses itself on
> abortion, and the law is changed to treat unborn children as people,
> "Abortions are right and just, and every woman who feels she needs one
> shouldn't hesitate to get it, despite the law."  These statements of general
> political advocacy are protected speech (because they aren't intended and
> likely to produce imminent violence, and thus are outside the very narrow
> incitement exception created by Brandenburg v. Ohio), and should remain
> protected speech.  And clearly these general public exhortations are
> precisely what Hatch is aiming at, since his comments were focused on
general
> racist Web sites, not on communications sent to particular people urging
> particular crimes.



*******

From: "Singleton, Norman" <Norman.Singleton () mail house gov>
To: declan () well com
Subject: RE: Sen. Hatch wants to ban online speech endorsing crimes
Date: Thu, 16 Sep 1999 11:56:22 -0400

Hatch, or his staff, should know better than to quote the Southern Poverty
Law Center whose sole purpose is to stamp out grassroots
conservative/libertarian activity by labeling such activities "Hate Speech."

*******

Date: Thu, 16 Sep 1999 08:34:46 -0700
To: declan () well com, politech () vorlon mit edu
From: Lizard <lizard () mrlizard com>
Subject: Re: FC: Sen. Hatch wants to ban online speech endorsing crimes

At 11:15 AM 9/16/99 -0400, Declan McCullagh wrote:

> -Declan
> PS: Why should this apply just to the Internet? Why not newsletters too?
Because people *understand* the printed press, and there is a long history
of near-absolute protection for political speech if it's printed on dead
trees. But the Internet is big&scary&new, and thus, it must be controlled.
If this doesn't make sense to you, congratulations, you're smarter than
Hatch. Granted, this is about as much of a compliment as being called
smarter than a dying haddock, but there you go.

Also, of course, as the censors admit very openly (and that they are so
open scares me), it's because with the Internet, free speech is
*meaningful*. It was alright, Hatch is saying, to have a First Amendment if
it didn't MEAN anything, if radicals or extremists couldn't actually reach
any audience of any size. But now that they can, this whole 'free speech'
thing needs to be looked at. Freedom of speech was lovely in the abstract,
but as a reality? Oh no, that cannot be.

I especially love the part about web sites being 'disguised as home pages'.
What, Nazis don't have home pages? The web blurs the distinction between
the speech of a group and the speech of an individual by giving any person
with enough time and talent the ability to create a site of the same
quality as that created by any large corporation. (Hell, you don't even
need talent, just a WYSIWYG editor and some clip art). What is more likely,
though, is that individual pages are 'disguised' as group pages. Any idiot
with FrontPage or just Notepad and 'Teach Yourself HTML in 21 days for
Dummies' can set up a web site declaring themselves to represent "The Grand
International United White Aryan Brotherhood Front For The Liberation Of
Zionist Occupied America", but that doesn't mean the 'Front' consists of
anything more than the guy writing the page, assisted by Chief of
Propaganda "Mr. Whiskers" and Head of Security "Fido".


*******
From: "Thomas Leavitt" <thomasleavitt () hotmail com>
To: <declan () well com>
Subject: Re: Sen. Hatch wants to ban online speech endorsing crimes
Date: Thu, 16 Sep 1999 11:23:09 -0700

Is there any real evidence that the Internet is increasing the ranks of hate
mongers? My intuition says that it really serves as nothing more than a new
communication channel, and that real "recruitment" still requires face to
face contact...

Mr. Hatch's speech would render statements of support for a civil
disobedience action criminal if it involved damage to property.

Example: "I support Earth First's sabotage of the bulldozer's and other
construction equipment being used to build a shopping mall on the last
remaining habitat of the critically endangered spider bird."

or Thomas Jefferson's ominious:

"I hold that a little rebellion now and then is a good thing." - clearly
he's advocating treason and violence

or even better

"The tree of liberty must be refreshed from time to time with the blood of
patriots and tyrants."

I state: "The tyranny of the secret services' hold on America must be
stopped." and end with the above quote in my .sig. Is that a threat?

Or even cruder (explicitly these aren't my opinions, but this is stuff which
I'd bet is echoed, almost word for word, every day on the Internet): "That
asshole Bobbit deserved what he got." "The only thing the cops screwed up
when they beat Rodney King was that they didn't kill him." "Faggots must
die."

... I much prefer to have my enemies out in the open, where they can be
defeated on the level playing field of reason.

Thomas
--
Thomas Leavitt -- thomasleavitt () hotmail com


*******

From: "Jones, Greg" <gjones () qci net>
To: "'declan () well com'" <declan () well com>
Subject: RE: Sen. Hatch wants to ban online speech endorsing crimes
Date: Thu, 16 Sep 1999 11:46:42 -0400

Hatch's basic premises are outmoded in many cases.  His contention that
"good parenting" means keeping children from talking to strangers is pretty
ignorant of the fact that children will speak to strangers every day of
their life, and most of those strangers are encountered in school.  What is
important is to teach children to be critical of what they are told -- by
anyone --  and to evaluate what they hear, even from trusted aquaintances
like teachers.

As for the Internet not being safe for children, Hatch and his ilk would be
better off making our schools safe for our children.  I am not espousing the
the obvious and draconian measures of making each school a secure enclave,
because I believe in the ingenuity of those truly desparate children who are
bent on destruction by the culture of sports-hero worship created in our
"educational" institutions.  

More emphasis on what happens in childrens' minds would serve them better
than worrying about what information they are getting from the Internet.

As well, there are too many parents out there who are not teaching their
children to have good character -- to respect themselves and others, for
example.  And these create problems that Hatch will not be able to legislate
away.


*******

To: Declan McCullagh <declan () well com>
From: solveig singleton <solveig () cato org>
Date: Mon, 13 Sep 99 12:02:18 EDT

If one is interested in this, *Free Speech in the Forgotten Years," is worth
a read.  In a nutshell, the courts of the nineteenth century took a narrow
view of the first amendment, though there were some successful first
amendment challenges.  State constitutions--far more important in the
nineteenth century because most of the laws impacting free speech were state
laws--played an important role in trimming back the law of libel.  It would
be odd indeed if the First Amendment, which meant so much to Madison and
Jefferson, somehow mysteriously lost that meaning in the nineteenth century.  

There was a lot of vigorous debate about the meaning of the First Amendment,
and many challenges to the courts' narrow view of it, in legal treatises,
the popular press, and in litigation.  A broad view of the First Amendment
was advocated by supporters of abolition, free love, birth control, and
anarchism, by some journalists, free thinkers, and other groups.  Doctors
and advocates of women's rights who sought to explain birth control and
STD's to the general public often were prosecuted under the Comstock Act.
In response, leading doctors such as Edward Foote helped found free speech
defense organizations, such as the National Defense Association and the Free
Speech League.  These organizations espoused an "absolutist" view of the
First Amendment well before the ACLU came on the scene. In the words of its
principals, the Free Speech League would defend the rights of "anybody to
say anything anywhere," seeking not just to get "the defendant out of
trouble" but "a judicial precedent favorable to free speech as a
constitutional principle or avoiding a precedent which is adverse."  

These radical defenders of the First Amendment remained in the minority
until after World War I, when many progressives like Brandeis and Holmes
joined their cause.  Before WWI, progressives generally took the typical
nineteenth judicial century view that the 1st amendment protected speech in
the "public interest"--and that's all.  Censorship during World War I
changed their minds; it was then that Brandeis, Holmes, and other
progressives became defenders of free speech.     


Sólveig Singleton
Director of Information Studies

visit http://www.cato.org/research/telecom-st.html

or contact:
Cato Institute
1000 Mass. Ave. NW
Washington DC 20001
(202) 789-5274
(202) 842-3490 (fax)


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