SHAC 7 Internet Speech
This is the argument summary and a few other parts of an amicus brief that my colleague Professor Zak Wolfe and I wrote in 2010 on behalf of Kjonaas v. USA (the SHAC 7) in their petition for writ of certiorari to the Supreme Court. We ask the Court to hear the case to modernize traditional tests to adapt to internet free speech. The Court denied cert, and the SHAC 7 activists were convicted and sentenced to prison terms.
This Honorable Court should grant certiorari in Kjonaas v. USA to clarify how longstanding First Amendment principles apply in new fora, specifically, online speech reflective of a new culture that mixes reporting, advocacy, extreme statements, and thoughtful discourse. The overarching concern in this case is the Third Circuit’s refusal to consider how the fact that the statements at issue were made on an advocacy-focused internet site either influences the application of traditional tests or may even call for modifying the framework. Although the court below at times claimed to be addressing the various statements in detail, in the end it paints with a broad brush and creates criminal liability for postings that should be protected.
What has not changed with the advent of the latest technology, and what this Court must vigilantly reiterate, is that heightened political rhetoric is but one variety of free speech that is a necessary attribute of a free society. When expressed on the internet, through postings on a website that reports and expresses ideological support for the actions of third-party activists, political speech and commentary is afforded full First Amendment protection. Even commentary expressing support for acts of civil disobedience falls under the purview of protected speech — indeed, advocacy of actions far more disruptive of social institutions than those contemplated in this case has long been held constitutionally[2] protected. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (mere advocacy of violence is constitutionally protected).
Now, this Court must consider how those principles are to be identified and preserved in an ever-changing culture. The nature of the internet — available to and aimed at a general audience rather than a specific target, reaching numbers unknowable to the speaker at the time the communication is made, and accessed over an unpredictable period of time — precludes application of traditional tests to establish the imminence and incitement needed to constitute a “true threat.”
The Third Circuit’s sanctioning of website postings that report on actions related to a campaign on a matter of public concern runs counter to the interest of maintaining diversity of thought on the internet that this Court has held essential in a democracy. Such sanctions are the equivalent of censoring a news channel. Website managers must not be punished for the contents of their websites, even if some of the descriptions or images are upsetting to certain audiences. Especially where, as here, the website was not the exclusive source of information and contained disclaimers against violence, the web managers cannot be held responsible for actions committed by third parties occurring before, or months after, the website materials were posted.
Although it is in a new forum and reaches a pitch that might make some people uneasy, the postings of details and commentary on the Stop Huntingdon Animal Cruelty (SHAC) animal rights activist campaign website contribute to a political discourse in a way that has, in principle, long since been protected.
Political speech includes heated rhetoric, hyperbole and verbal expressions of support for others who commit actions on behalf of a particular campaign. Activities related to political discussion and organizing — including news reporting, picketing, attending meetings, advocating protest, writing about protest, organizing, and commenting on protest — are of such social value that they are long venerated in United States society. Identifying a hierarchy among the protected categories of speech, Professor David Kairys writes that “political speech is the most protected because it has the highest social value, furthering society’s interest in free and open debate as well as the individual’s interest in expression.” See e.g. David Kairys, The Politics of Law 197 (3d ed. 1998).
This Court has recognized the importance of protecting elevated political rhetoric. See e.g. Bonds v. Floyd, 385 U.S. 116, 133 (1966) (“While the SNCC statement said ‘We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft,’ this statement alone cannot be interpreted as a call to unlawful refusal to be drafted.”). Even when the rhetoric contains phrases that could be construed as a threat to the president, the Court has evaluated the language in the broader context of robust debate. Watts v. United States, 394 U.S. 705 (1969). It has enunciated fundamental reasons for protecting freedom of speech, namely the need for political debate and to permit people to speak freely without fear of punishment for their words and ideas. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Charged political rhetoric is “at the core of the First Amendment,” NAACP v. Claiborne Hardware, 458 U.S. 886, 926-27 (1982).
This Court has held that internet speech is entitled to full First Amendment protection. “[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).