When are Websites Threats? The Jena 6 Website

JB

The Associated Press reports:

The FBI is reviewing a white supremacist Web site that purports to list the addresses of five of the six black teenagers accused of beating a white student in Jena and "essentially called for their lynching," an agency spokeswoman said Saturday.

Sheila Thorne, an agent in the FBI's New Orleans office, said authorities were reviewing whether the site breaks any federal laws. She said the FBI had "gathered intelligence on the matter," but declined to further explain how the agency got involved.

CNN first reported Friday about the Web site, which features a swastika, frequent use of racial slurs, a mailing address in Roanoke, Va., and phone numbers purportedly for some of the teens' families "in case anyone wants to deliver justice." That page is dated Thursday.

The First Amendment protects advocacy of violence, even racist violence, unless the advocacy is directed to inciting imminent lawless action and is likely to do so. However, it does not protect what the law calls true threats. Is a website with the addresses of five of the Jena 6 a true threat? This is similar to the well known "Nuremberg Files" case, Planned Parenthood v. American Coalition of Life Activists, 290 F. 2d 1058 (9th Cir. 2002). That case involved a website which featured the names and addresses of abortion providers and crossed out the names of those who had been murdered. The 9th circuit held over a very vigorous dissent that the site could be enjoined and its authors sued for damages because it was an unprotected true threat.

Much as I abhor the speech, I am not sure that the ACLA decision was correct, at least on the true threat issue. (I say a little more about a solicitation theory below). The site was clearly designed to intimidate. But there was no evidence that the site owners -- or someone they were working with-- could or would carry out the threat. The site said, in effect, "if you keep performing abortions, you'll be killed," but it didn't suggest that this was more than a hope or wish that someone else would carry out the attacks. On the other hand, if one could show a connection between the site owners and persons who were planning attacks on abortion providers, the website would be a true threat and it could also be used as evidence of conspiracy.

Similar analysis applies to the Jena 6 case. If persons who planned to attack the students in the future-- or people they worked with-- were responsible for the website, it is a true threat and unprotected. Indeed, the website is evidence of intent to carry out a conspiracy and it is also an overt act in furtherance of the conspiracy. In particular, it makes a threat and it provides information to people to carry it out. But if it is simply a racist website designed to frighten people, it is not a true threat.

One possible argument for the website being a true threat would be to analogize it to a burning cross, as in Virginia v. Black. In that case, the Court held that Virginia could make burning a cross with intent to intimidate a crime where the cross was burned as a true threat. One might well argue that websites like the one in the Jena 6 case today serve the same function as a burning cross did in an earlier era. It addresses black people and announces that someone is coming to get them. But, once again, the Supreme Court pointed out in Virginia v. Black that to be a true threat-- as opposed to merely an attempt to frighten-- the burning cross must evidence "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."

There is another possible theory: If the website was an attempted solicitation of a crime which also seeks to assist murder by offering information that would be helpful to the persons solicited, then it would also not be protected. Note that the ACLA case might have been a case of attempted solicitation if one could prove that the purpose of the site was to solicit murder. This is not how people usually solicit others for first degree murder, but just as websites today might perform the same function as burning crosses once did, the Internet might provide a new spin on many old familiar crimes.
Posted 7:45 AM by JB [link]