Monday, September 24, 2007

When are Websites Threats? The Jena 6 Website


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.


Why does the solicitation argument work only for murder? Can't it be soliciting, say, aggravated assault? Or does that affect the analysis somehow?

Professor Balkin:

Thank you for an interesting analysis.

At first blush, I would agree with you that perhaps the best way to view sites like the Nuremberg Files is as a solicitation to murder. However, I am unsure how solicitation is substantially different that inciting imminent lawless action. They share the same elements. Did you intend to make this distinction?

In any case, I would suggest that the specific intent element of solicitation is not at all clear from the Nuremberg Files site.

Is implied support for another's prior murder proof of the site operators' intent to promote future murders? If so, this argument to my mind leads to a very slippery slope. For example, if a website lists the addresses of unlawful medical marijuana clinics, is that a solicitation to create further unlawful clinics? Such a rule could draw in most reporting of unlawful activity

I would suggest that, as grotesque as the site was, that the Nuremberg Files did not represent an incitation or solicitation of lawless action.

Jack: I don't think it's quite a "true threat," or solicitation, or incitement. (No solicitation because no one is actually soliciting, or inducing, anyone to commit a crime. And "incitement" is reserved for simple *advocacy* of crime, which is subject to heightened Brandenburg requirements; whereas here, the problem is not advocacy but the provision of information that makes such crimes much more likely.)

Instead, it's attempted aiding and abetting of assaults (or worse crimes), or, perhaps, akin to a "facilitation" offense. From what you describe, the plain intent of providing the information is to enable others to commit crimes. I don't think there's any First Amendment protection *if* such intent could be proved.

The larger obstacle to prosecution is that there is not any general federal statute prohibiting attempted aiding and abetting or "facilitation" of crimes (and very few such state statutes, either).

See generally the text at notes 28, 65 and 72 of this report that I helped to draft:

Professor Lederman:

Could you post a full link?

There is another post on the hate site titled "Lynch The Jena 6: We Are Anxiously Awaiting Their Release."

Here is a snip from that post:

Jena. Louisiana -- The American National Socialist Workers Party anxiously awaits the release of the Jena 6 n-----s, responsbile for an unprovoked assault on a white high student, so the six can face true justice.

"If these n-----s are released or acquitted, we will find out where they live and make sure that white activists and white citizens in Louisiana know it," ANSWP Commander Bill White stated today, "We'll mail directions to their homes to every white man in Louisiana if we have to in order to find someone willing to deliver justice."

I'd be scared. Sounds like a real threat to me or a solicitation to commit a crime. Either way these are scary people.

"Bart" DePalma:

Here ya go (at least that's what I think you were asking for). Yaknow, <CTL-C><CTL-V> is your friend....


How is this different than say a website that publishes the names and address of prostitutes along with directions to their home?

I assume, though I don't know, that is illegal. If it is illegal then I am not sure I see the difference between the two.


Thanks for the link. The posted which I am seeing cuts off the link at bombmakin...


Did you actually help draft this report? Were you assigned this task or was this your actual opinion?

Given your position that the press can publish nearly anything, including top secret intelligence gathering programs to the enemy, I am having a hard time seeing this work as yours.


After my last post to you, I had to wonder whether the other professors allow you to shut down their comment sections to censor my posts?

I would hate for you to shut this one down for my last comment.

You are getting awfully thin skinned these days. Heck, all it took for me to observe that Mukasey's opinions as allegedly relayed to conservative legal scholars sounded a great deal like Goldsmith for you to shut down the comment section in the post "Plus Ça Change . . ." above.

I'm with Brenda on this one. It may be difficult normally to prove advocacy from a mere list of personal contact info, but when one finds messages like "We'll mail directions to their homes to every white man in Louisiana if we have to in order to find someone willing to deliver justice" in direct association with the lists, it seems rather obvious.

This isn't a graphic representation that can be interpreted as support for the past rather than support for future action; it's a clear statement written in the future tense. Only by a bizarre misreading of the context, can we see this as anything less than a threat of violence. ("By justice, it's obvious they mean a well-written letter and a cranberry muffin.")

This comment has been removed by the author.

The original comment at is down. However, a copy of the language has been posted here at, along with what the poster claims are the names and addresses of the individuals in question, "In case anyone wants to deliver justice".

Is this poster in any way complicit in such threats by posting names and addresses? What if violence follows and it turns out those responsible got the addresses from the blog post? Might be liable?

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