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2004 UCLA J.L. & Tech. 4 |
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The Clear and Present Internet: Terrorism, Cyberspace, and the First Amendment |
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Footnotes
* Professor of Law, Roger Williams University School of Law. I thank Linda Fisher, Eric Freedman, Michael Froomkin, and Orin Kerr for comments on a previous draft.
2. See 9/11 Commission Report 266 (2004), available at www.9-11commission.gov/report/911Report.pdf (reporting that Mohamed Atta, the ringleader of the September 11 hijackers, used instant messaging as well as other methods to stay in touch with Al Qaeda superiors in the period immediately before the attacks); cf. Ronald J. Deibert & Janice Gross Stein, Social and Electronic Networks in the War on Terror, in Bombs and Bandwidth: The Emerging Relationship Between Information Technology and Security 157, 171 (Robert Latham ed., 2003) (noting Al Qaeda’s use of the Internet, while noting uncertainty about whether on-line communication is “fundamentally important” to network’s survival and continued operations); Amy Waldman, Arrested Qaeda Operative: Life of Degrees and Aliases, N.Y. Times, Aug. 6, 2004, at A9 (reporting on background of alleged “facilitator of communications for Al Qaeda who posted messages by e-mail and on Web sites,” possibly including detailed reconnaissance reports on financial institutions in the United States recovered from suspect’s laptop); Lawrence Wright, The Terror Web: Were the Madrid Bombings Part of a New, Far-Reaching Jihad Being Plotted on the Internet?, New Yorker, Aug. 2, 2004, 40, 49-50 (noting appearance of Al Qaeda strategic documents on Web, as well as use of Internet as “tool of communication” by perpetrators of Madrid train bombing). 3. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (holding that state can criminalize as incitement only communications that the speaker intends to create imminent risk of illegal conduct, and that reasonably could create such a risk); cf. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, in Eternally Vigilant: Free Speech in the Modern Era 152, 166 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) (if “citizens in a democracy [must] experience their authorship of the state in ways that are anterior to the making of particular decisions ... a state [should] be constitutionally prohibited from preventing its citizens from participating in the communicative processes relevant to the formation of democratic public opinion”). Following the usage of First Amendment scholars, this article uses the term “modern First Amendment” to refer to the understanding reflected in Brandenburg. 4. See Lawrence Lessig, Code and Other Laws of Cyberspace (1999) (advocating “digital commons” based on ideals animating development and implementation of open source software, and warning against government and corporate attempts to control cyberspace through changes in Internet architecture); Siva Vaidhyanathan, The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System (2004) (arguing for freer approach to exchange of information and other material on the Internet); cf. A. Michael Froomkin, Habermas@Discourse.Net, 116 Harv. L. Rev. 749, 782-97 (2003) (arguing that standards of Internet governance approximate Habermas’s “ideal speech community”); see also David G. Post, What Larry Doesn’t Get: Code, Law, and Liberty in Cyberspace, 52 Stan. L. Rev. 1439 (2000) (praising Internet as arena for innovation and exercise of freedom, while arguing that Lessig’s warnings about concentrated corporate control are overstated and simplistic); Philip J. Weiser, The Internet, Innovation, and Intellectual Property Policy, 103 Colum. L. Rev. 534, 568-76 (2003) (discussing “digital commons” approach as well as criticisms of the concept). 5. See Cass Sunstein, Republic.com (2001); cf. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev. 1607 (1999) (arguing that Internet’s threat to privacy can also frustrate participation in governance); Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosures, 53 Duke L.J. 967 (2003) (same). 6. See Lessig, supra note 4; Froomkin, supra note 4. 7. See Sunstein, supra note 5 (noting that the distinction between celebratory and cautionary approaches should not obscure their overlapping concerns). See, e.g., A. Michael Froomkin, The Death of Privacy?, 52 Stan. L. Rev. 1461 (2000) (discussing privacy issues on the Internet). In addition, Internet Exceptionalists have examined qualitative parallels between the Internet and earlier media. Celebratory theorists, for example, have considered these parallels to illustrate the short-sightedness of overbroad readings of intellectual property ownership rights. See, e.g., Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 53-61 (2004) (discussing how disputes about piracy of intellectual property played out in earlier media such as radio and cable television). As is often the case with categories advanced by scholars, the differences here may reflect variations in tone and emphasis more than substance. For an approach that seeks to distill principles for a balanced analysis, see Orin S. Kerr, The Problem of Perspective in Internet Law, 91 Geo. L.J. 357 (2003) (arguing that disputes about Internet law often result from conflation of “external” perspective dealing with cyberspace architecture and “internal” perspective dealing with understandings of Internet users). 8. Schenck v. United States, 249 U.S. 47 (1919); cf. Kent Greenawalt, “Clear and Present Danger” and Criminal Speech, in Eternally Vigilant, supra note 3, at 97 (discussing implications of Schenck and progeny). 9. Abrams v. United States, 250 U.S. 616 (1919). 10. Frohwerk v. United States, 249 U.S. 204 (1919); cf. Debs v. United States, 249 U.S. 211 (1919) (upholding conviction of labor leader Eugene Debs for speech asserting that American involvement in World War I served the interests of the wealthy, and praising individuals who resisted draft). 11. See Geoffrey R. Stone, The Origins of the “Bad Tendency” Test: Free Speech in Wartime, 2002 Sup. Ct. Rev. 411, 431-41 (discussing origins of the test and arguing that subsequent courts had misapprehended its meaning). 12. Schenck v. United States, 249 U.S. 47, 52 (1919). 13. Dennis v. United States, 341 U.S. 494 (1951). 14. United States v. O’Brien, 391 U.S. 367 (1968). 15. See Kent Greenawalt, Speech, Crime, and the Uses of Language 328-31 (1989) (arguing that Court engaged in inappropriately deferential review of statute); Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1202-05 (1996) (same). 16. See Antiterrorism and Effective Death Penalty Act (AEDPA), 18 U.S.C. § 2339A(b) (2002); cf. Peter Margulies, The Virtues and Vices of Solidarity: Regulating the Roles of Lawyers for Clients Accused of Terrorist Activity, 62 Md. L. Rev. 173, 200-07 (2003) (discussing appropriate scope of material support provisions). 17. See David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terror (2003); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002) (describing the marginalization of particular communities after September 11); Peter Margulies, Uncertain Arrivals: Immigration, Terror, and Democracy After September 11, 2002 Utah L. Rev. 481, 495-99 (same); Peter Margulies, Making “Regime Change” Multilateral: The War on Terror and Transitions to Democracy, 32 Denv. J. Int’l L. & Pol’y 389, 404-08 (2004) (discussing how changes to United States immigration law could promote democratic change globally); cf. Peter Margulies, Judging Terror in the “Zone of Twilight”: Exigency, Institutional Equity, and Procedure After September 11, 84 B.U. L. Rev. 383, 394-98 (2004) (discussing threats to equality and integrity of legal system in war on terror); see also Gerald L. Neuman, Closing the Guantanamo Loophole, 50 Loy. L. Rev. 1, 44-53 (2004) (arguing that detainees at Guantanamo Naval Base, virtually all Muslim in faith, were entitled to due process protections; anticipating Supreme Court decision in Rasul v. Bush, 124 S. Ct. 2686 (2004) (finding federal jurisdiction over Guantanamo detainees)). 18. Cf. United States v. Progressive, Inc., 467 F. Supp. 990, 992 (W.D. Wis. 1979) (issuing injunction against publication of formula for hydrogen bomb). 19. Celebratory theorists address issues of law and terrorism in passing, or display ambivalence. See Lessig, supra note 7 at 111-12 (discussing availability on Internet of more comprehensive and eclectic coverage of September 11 attacks); Vaidhyanathan, supra note 4, at 173-75 (denying that Al Qaeda is a “network” in an information technology sense, while acknowledging the need for effective measures against terrorism consistent with constitutional principles). In the absence of sustained analysis of law and terrorism, the celebratory theorists’ default position seems to be a suspicion of government regulation influenced by their perspective on the digital property wars. See infra notes 85-86 and accompanying text. While this perspective is instructive, it cannot dispose of every question regarding terrorism on-line. 20. See Planned Parenthood v. American Coalition of Life Activists (ACLA), 290 F.3d 1058 (9th Cir. 2002) (publishing on-line and hard-copy “Wanted Posters” of individual doctors who performed abortions constituted “true threat” not entitled to First Amendment protection). 21. See Whitney v. California, 274 U.S. 357, 372, 375 (1927) (Brandeis, J., concurring) (arguing that the greatest danger to democracy is an “inert people”); Hannah Arendt, The Human Condition 198 (1958) (the political realm rises directly out of acting together, the “sharing of words and deeds”). The focus on participation has been a hall-mark of the revival of interest in civic republican thought, which stresses the importance of deliberation in the public sphere. See Frank Michelman, Law’s Republic, 97 Yale L.J. 1493 (1988); Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539 (1988); cf. Peter Margulies, The Mother with Poor Judgment and Other Tales of the Unexpected: A Civic Republican View of Difference and Clinical Legal Education, 88 Nw. U. L. Rev. 695 (1994) (incorporating civic republican perspective in narratives from poverty law); Peter Margulies, Review Essay: Progressive Lawyering and Lost Traditions, 73 Tex. L. Rev. 1139 (1995) (civic republican perspective on history of civil rights lawyering). 22. Hannah Arendt, The Concept of History, in Between Past and Future 41, 89 (Viking Compass 1968)(1961) (expressing wariness about totalitarian uses of new technology); Olmstead v. United States, 277 U.S. 438, 471, 473-77 (1928) (Brandeis, J., dissenting) (expressing similar concerns, in dissenting from holding that warrantless telephone tap did not violate Fourth Amendment). In their commitments to an active citizenry, both Brandeis and Arendt reflected a concern with modern threats to liberty and a fascination with the classical origins of democratic theory and practice. See Arendt, Human Condition, supra note 21, at 37 (discussing public-private distinction in Athenian “political consciousness”); John McGowan, Must Politics Be Violent? Arendt’s Utopian Vision, in Hannah Arendt & the Meaning of Politics 263, 278 (Craig Calhoun & John McGowan eds., 1997) (discussing Arendt’s vision of civic discourse as influenced by Greek polis); Philippa Strum, Brandeis: Beyond Progressivism 102-07 (1993) (discussing Brandeis’s deep interest in Athenian democracy); Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 Wm. & Mary L. Rev. 653, 680-82 (1988) (discussing relationship of Brandeis’s interest in Athenian democracy with his vision of the First Amendment). 23. See Arendt, The Crisis in Education, in Between Past and Future, supra note 22, at 172, 186. 24. See Rafal Rohozinski, Bullets to Bytes: Reflections on ICT’s and “Local” Conflicts, in Bombs and Bandwidth, supra note 2, at 215, 229 (asserting that Israeli Defense Force sought to dismantle Palestinians’ Internet capability as part of its response to the Palestinian Second Intifada; author concedes that Israel had been target of cyber-attacks, but argues that “few if any of the attacks emanated from the West Bank and Gaza”). 25. See Cole, supra note 17, at 111-12 (discussing persecution of immigrant dissenters after America’s entry into World War I); Bonnie Honig, Democracy and the Foreigner 101 (2001) (praising participation of immigrants such as the activist Emma Goldman, whom the government deported after her conviction on charges related to her dissent from America’s intervention in World War I); cf. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 59 (1983) (arguing against discrimination against aliens regarding political participation); Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1130-33 (1994) (arguing for greater First Amendment protections in immigration law). 26. See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 188 (rev. ed. 1991) (1983); cf. Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. Pa. L. Rev. 311, 459-73 (2002) (discussing impact of Anderson’s view of simultaneity and the cognitive and intellectual construction of nations across physical borders in the context of the Internet’s impact on jurisdiction). 27. See Anderson, supra note 26, at 187-88. 28. See James T. Kloppenburg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920, 152 (1986) (“Technology was transforming social structure and cultural values, but the shape of the society and culture that would replace them remained shrouded in doubt”); Charles Taylor, The Direct-Access Society, in Modern Social Imaginaries 155, 160 (2004) (noting that modernity offers “an access unmediated by any... other allegiances or belongings”). 29. See Kloppenburg, supra note 28, at 152 (citing the philosopher Wilhelm Dilthey as noting the challenges of “industry which is world wide in scope”). 30. See Cole, supra note 17; Honig, supra note 25. Transmuted into fear of immigrants from Latin America, the Caribbean, the Middle East, and South Asia, this dynamic continues today. See Daniel Kanstroom, Dangerous Undertones of the New Nativism: Peter Brimelow and the Decline of the West, in Immigrants Out! The New Nativism and the Anti –Immigrant Impulse in the United States 300, 300-13 (Juan F. Perea ed., 1997) (analyzing concerns of immigration opponents such as Peter Brimelow, author of the book, “Alien Nation”); Volpp, supra note 17 (same); Muneer Ahmad, Homeland Insecurities: Racial Violence the Day after September 11, 20.3 Social Text 101 (2002) (same); Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L. 295 (2002) (same). 31. See Thomas K. McCraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn 61-64 (1984) (discussing establishment of Interstate Commerce Commission and rise of federal regulation of transportation); cf. William J. Novak, Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst, 18 Law & Hist. Rev. 97, 125 (2000) (“By the late nineteenth and early twentieth century, the same legal and governmental powers of the state that bolstered and supplemented economic decision making came to be deployed as antagonistic checks on the excesses of market allocations”). 32. See Paul Starr, The Creation of the Media: Political Origins of Modern Communications 148 (2004). 33. See id. at 189. 34. Id. at 188. 35. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193, 195 (1890-91). 36. In the late 1800's, the Supreme Court held that Congress had plenary power over immigration. See Chae Chan Ping v. United States, 130 U.S. 581 (1889); cf. Stephen H. Legomsky, Immigration Law and Policy 15-17 (1992) (discussing roots of the Chinese Exclusion Act in animus of white Californians toward Chinese immigrants); Richard P. Cole & Gabriel J. Chin, Emerging from the Margins of Historical Consciousness: Chinese Immigrants and the History of American Law, 17 Law. & Hist. Rev. 325 (1999) (same); see generally Margulies, Uncertain Arrivals, supra note 17 (discussing distortions in political process encouraged by aliens’ second-class status). 37. See Starr, supra note 32, at 295 (“During their first two decades, the motion pictures in America had a primarily urban, working-class audience drawn heavily from new immigrant groups, and the movie industry itself... soon came under the control of immigrant entrepreneurs, most of them Jewish”); cf. Michael Rogin, Blackface, White Noise: Jewish Immigrants in the Hollywood Melting Pot 16 (1996) (noting role of Jewish immigrants in developing “twentieth-century mass culture in the United States,” as well as interaction with African-Americans in culture and politics). 38. See Mut. Film Corp. v. Indus. Comm’n. of Ohio, 236 U.S. 230 (1915). 39. Id. at 242; cf. Starr, supra note 32, at 312 (analyzing case). 40. Mut. Film Corp., 236 U.S. at 244; see also David M. Rabban, Free Speech in Its Forgotten Years 174-75 (1997) (discussing early legal rulings on the motion picture industry). 41. Mut. Film Corp., 236 U.S. at 244. 42. Id. at 242-244. 43. See Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech 206 (1987). 44. Cf. Paul Rozin & Carol Nemeroff, Sympathetic Magical Thinking: The Contagion and Similarity “Heuristics”, in Heueristics and Biases: The Psychology of Intuitive Judgment 201 (Thomas Gilovich, et al. eds. 2002) (discussing development and possible origins of attributions of contagion in popular culture); see generally Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo 126-27, 139 (1966) (noting that in pre-modern societies intruders were often “suspect,” and that “pollution” introduced by intruders “transmits danger by contact”). 45. For example, groups made efforts to send bombs to politicians, prominent businessmen, and even judges. See Polenberg, supra note 43, at 55-61 (discussing activities of New York City bomb squad). 46. See Larry Walker, Woodrow Wilson, Progressive Reform, and Public Administration, 104 Pol. Sci. Q. 509, 515 (1989). 47. See Rabban, supra note 40, at 227-28 (noting the philosopher John Dewey’s commitment to the scientific method, and arguing that while Dewey recognized value of free speech for making sound policy, he did not display a comparable commitment to protecting speech that might be hateful, extreme, or in some fashion socially counter-productive); cf. Bradley C. Bobertz, The Brandeis Gambit: The Making of America’s “First Freedom,” 1909-31, 40 Wm. & Mary L. Rev. 557, 629 (1999) (quoting Progressive intellectual Walter Lippmann as arguing that “gathering and dissemination of information... should be controlled by government communications bureaus”); Robert M. Cover, The Left, the Right and the First Amendment: 1918-1928, 40 Md. L. Rev. 349 (1981) (discussing cross-currents in First Amendment debates); see also Peter Margulies, Public Interest Lawyering and the Pragmatist Dilemma, in Renascent Pragmatism: Studies in Law and Social Science 220, 223-25 (Alfonso Morales ed., 2003) (analyzing how instabilities in Dewey’s pragmatist thought led to his failure to vigorously defend dissenters to America’s intervention in World War I against government repression). 48. Of course, proponents of regulation during the Progressive Era included a spectrum of thinkers with varying priorities and perspectives. Cf. Kloppenburg, supra note 28, at 362-63 (discussing range of Progressive thinkers and activists, including opponents of business concentration, led by Woodrow Wilson; advocates of scientific administration linked to Teddy Roosevelt, and champions of social welfare, led by Croly, Lippmann, and Dewey). Each of these groups, however, to some degree bought into the naive hope that modern technologies of war could be harnessed to create a better world through American intervention in World War I, and accepted the importance of curtailing dissent associated with that effort. Id. Cf. Harry N. Scheiber, The Wilson Administration and Civil Liberties, 1917-1921, at 30 (1960) (quoting Roosevelt as criticizing wartime censorship); id. at 10 (noting “nativist” tone of Roosevelt’s “bellicose campaign on behalf of [Republican Presidential candidate] Hughes” in 1916 election). 49. See Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States 75 (1979) (describing executive order of 1917 regarding cable and land telegraph lines that expanded censorship and gave the War Department power to censor overseas messages, including reports of domestic American news sent to foreign newspapers); Starr, supra note 32, at 223-25 (Progressive impulse toward regulation). 50. See Murphy, supra note 49, at 54 (quoting Wilson as criticizing those who would “divide our people into antagonistic groups and thus... destroy that complete agreement and solidarity of the people and that unity of sentiment and purpose so essential to the perpetuity of the Nation and its free institutions” and urging that “all men of whatever origin or creed who would count themselves Americans [should] join in making clear to all the world, the unity and subsequent power of America. This is an issue of patriotism”). 51. See Scheiber, supra note 48, at 7 (Wilson “denounced the foreign-born as responsible for ‘the gravest threats against our national peace and safety’”). 52. See Richard A. Posner, Law, Pragmatism, and Democracy 359 (2003), discussing Schenck v. United States, 249 U.S. 47, 52 (1919). 53. See Murphy, supra note 49, at 54. 54. See Stone, Free Speech in Wartime, supra note 11, at 412-13. 55. See Scheiber, supra note 48, at 11-12 (quoting Wilson’s Attorney General as urging legislation, ultimately passed as the Espionage Act of 1917, to address “the new conditions of warfare by propaganda”). 56. See Murphy, supra note 49, at 108; see also George Creel, How We Advertised America: The First Telling of the Amazing Story of the Committee on Public Information that Carried the Gospel of Americanism to Every Corner of the Globe 117-32 (1972). 57. See Jeffrey Rosen, the Naked Crowd: Reclaiming Security and Freedom in an Anxious Age 12-14, 75-76 (2004) (discussing theories of crowd behavior first popularized by social commentator Gustave Le Bon). 58. See Rabban, supra note 40, at 134. 59. Id. at 135; United States ex rel. Turner v. Williams, 194 U.S. 279, 293 (1904). 60. Rabban, supra note 40, at 136, citing 194 U.S. at 293-95. 61. Frohwerk v. United States, 249 U.S. 204 (1919). 62. Id. at 209. 63. Cf. Stone, Free Speech in Wartime, supra note 11, at 431-41 (discussing “bad tendency” test). 64. Schenck v. United States, 249 U.S. 47, 52 (1919). 65. 1 Holmes-Laski Letters 203-04 (Mark deWolfe Howe ed., 1953) (offering Holmes’s rationale for the Schenck and Debs decisions upholding the conviction and imprisonment of wartime dissenters, while expressing some doubts about the continuation of the government’s repressive course, particularly after the war’s conclusion). 66. Schenck, 249 U.S. at 52. 67. See Polenberg, supra note 43, at 49-55. 68. Abrams v. United States, 250 U.S. 616 (1919). 69. Id. at 627-28. 70. See Gerald Gunther, Learned Hand: The Man and the Judge 151-70 (1994) (discussing Hand’s interaction with Holmes and his opinion in the Masses case, which foreshadowed the Supreme Court’s turn toward a more speech-protective view of incitement under the First Amendment in Brandenburg some fifty years later); Polenberg, supra note 43, at 236, 241 (discussing reactions of Brandeis, Chafee, Hand, and Holmes’s long-time correspondent Harold Laski to Holmes’s opinion); Geoffrey R. Stone, Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled, 70 U. Chi. L. Rev. 335, 341-45 (2003) (discussing background of Masses case). 71. As Holmes put it, “[i]n the main I am for aeration of all effervescing convictions – there is no way so quick for letting them get flat.” See Holmes-Laski Letters, supra note 65, at 204. 72. Dennis v. United States, 341 U.S. 494 (1951). 73. Id. at 511. 74. Id. 75. Justice Frankfurter echoed this view in his concurrence with his allusion to notorious atom spy Klaus Fuchs. Id. at 548 n.13. For background on the atomic espionage cases and their relationship to anti-Communist repression after World War II, see Michael E. Parrish, Revisited: The Rosenberg “Atom Spy” Case, 68 UMKC L. Rev. 601 (2000). 76. Dennis, 341 U.S. at 524 n.5 (quoting Alexander Meiklejohn, Free Speech 104 (1948)). 77. Id. at 519-20. 78. Id. at 511. 79. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 80. See Eric M. Freedman, A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make It Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment, 81 Iowa L. Rev. 883, 907 (1996) (arguing that the strong speech-protective test in Brandenburg emerged because “experience with weaker formulations . . . had shown how easily the government could impoverish political dialogue by suppressing speech that it deemed subversive of the established order”). 81. The government can impose “incidental burdens” on speech that are content-neutral and narrowly tailored to serve important public objectives such as preservation of intellectual property rights, see Universal City Studios v. Corley, 273 F.3d 429, 449-53 (2d Cir. 2001) (upholding constitutionality of Digital Millennium Copyright Act), or disruption of the funding of transnational violent networks. See Antiterrorism and Effective Death Penalty Act (AEDPA), 18 U.S.C. §2339A(b) (2002) (barring “material support” to groups designated by the Secretary of State as terrorist organizations); see also Boim v. Quranic Literacy Inst. and Holy Land Found. For Relief and Development, 291 F.3d 1000 (7th Cir. 2002) (upholding constitutionality of prohibition on material support); Humanitarian Law Project v. Reno, 205 F.3d 1130, 1135 (9th Cir. 2000), cert. den. sub nom Humanitarian Law Project v. Ashcroft, 532 U.S. 904 (2001) (upholding statute, while holding that certain terms were vague as applied). The government can also regulate commercial speech. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561-63 (1980). In addition, threats of violence do not receive First Amendment protection. See Virginia v. Black, 538 U.S. 343 (2003) (cross-burning with intent to intimidate constitutes true threat unprotected by First Amendment). Criminal conspiracies are similarly unprotected. See United States v. Abdel Rahman, 189 F.3d 88, 116 (2d Cir. 1999) (holding that the federal seditious conspiracy statute, 18 U.S.C. §2384, does not violate First Amendment, the court noted that while “laws targeting ‘sedition’ must be scrutinized with care to assure that the threat of prosecution will not deter expression of unpopular viewpoints by persons ideologically opposed to the government... [t]he Government, possessed of evidence of conspiratorial planning, need not wait until buildings and tunnels have been bombed and people killed before arresting the conspirators”). 82. See Freedman, supra note 80, at 960 (“governments are haunted by the fear that the mechanisms of communications may be outrunning those of control”). 83. See supra notes 8-15 and accompanying text. 84. See Vaidhyanathan, supra note 4, at 43 (in describing the dynamic that encourages file-sharing and individual re-mixes of music, commentator notes that, “We share music in a circle... [w]e want to... mess with it, remake it. We want to make it ours and use what flows around us to build new music”). Some commentators argue that for particular legal purposes, such as resolving issues of jurisdiction, the Internet does not require special treatment. See Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998) (rejecting view that jurisdiction over Internet requires novel legal approaches, while reserving analysis of substantive legal issues concerning Internet communications). 85. See Vaidhyanathan, supra note 4, at 43 (noting that “[t]he rise of peer-to-peer technology... threatened the powerful companies that invest billions in production, distribution, and marketing”). 86. See Lessig, Free Culture, supra note 4, at 157 (critiquing provisions of Digital Millennium Copyright Act (DMCA). For celebratory theorists, the cardinal story of the Internet is the conflict between the potential for freedom and creativity represented by the free-flowing nature of present Internet architecture, and the curtailment of fair use rights through licensing restrictions imposed by software manufacturers. Cf. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1, 22-23 (2004) (praising Internet’s potential independence from mass media controlled by large corporations); James Boyle, Governance of the Internet: A Nondelegation Doctrine for the Digital Age?, 50 Duke L.J. 5, 10 (2000) (expressing concern about concentration of control of the Internet). 87. See Sunstein, supra note 5, at 51-65 (discussing polarization on the Internet prompted by lack of traditional filters); Paul Virilio, the Information Bomb 8-12 (2000) (warning about threats to local traditions and governance embodied in growth of cyberspace). 88. See Vaidhyanathan, supra note 4, at 60-61. 89. Cf. Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding university admissions policies that take race into account to promote diversity in education); but see Dan Hunter, Phillip.com Republic.com, 90 Calif. L. Rev. 611, 638-40 (2002) (rejecting cautionary critique by arguing that individuals’ choices regarding traditional media can also promote polarization, and that Internet provides filtering mechanisms). 90. See Vaidhyanathan, supra note 4, at 61. 91. See Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001) (holding that websites containing computer code for evading manufacturers’ use restrictions on digital products violate federal statute); cf. United States v. Kammersell, 196 F.3d 1137 (10th Cir. 1999) (holding that on-line bomb threat sent by defendant in Utah to girlfriend within state, but transmitted to and from Internet Service Provider’s architecture in Virginia, constituted “interstate” threat under federal law). 92. But see Lessig, Free Culture, supra note 4, at 124-30 (warning that changes in Internet architecture promoted by government and large corporations as response to simultaneity may create more restrictive and effective regulatory regime). 93. Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). 94. Id. at 451. For a critique of the District Court’s opinion in Corley, which the appellate court sustained, see Edward Lee, Rules and Standards for Cyberspace, 77 Notre Dame L. Rev. 1275 (2002) (arguing that the District Court failed to consider the nature and frequency of change on the Internet). 95. See DVD Copy Control Ass’n v. Bunner, 116 Cal. App. 4th 241, 251 (2004). 96. Ashcroft v. ACLU, 124 S. Ct. 2783 (2004). 97. Id. at 2792. 98. Id. at 2792-93; cf. Reno v. ACLU, 521 U.S. 844, 869 (1997) (striking down earlier effort to limit on-line pornography, and asserting that because Internet content depends in large part on viewers’ informed and conscious choices, it was more susceptible to mediation within the home than broadcast media). 99. United States v. American Library, 539 U.S. 194 (2003). 100. Id. at 220 (Stevens, J., dissenting). 101. For example, the Court did not regard the possibility of installing filters only on computers used by minors as a basis for deeming the statute insufficiently tailored. Id. at 2320 (Souter, J., dissenting). Simultaneity has also played a role outside the realm of on-line pornography. In a recent decision holding that the National Archives was not required to release graphic photos of Vince Foster’s body taken after his suicide, the Court cited the concern of Foster’s sister that the photos, once released, “would be placed on the Internet for world consumption.” See Nat’l Archives & Records Adm. v. Favish, 124 S. Ct. 1570, 1577 (2004). 102. United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997); see also Scott Hammack, Note, The Internet Loophole: Why Threatening Speech On-Line Requires a Modification of the Courts’ Approach to True Threats and Incitement, 36 Colum. J. L. & Soc. Probs. 65, 92-93 (2002) (discussing Alkhabaz). 103. The female student’s awareness of the defendant’s fantasy stemmed from third parties who brought the fantasy to her attention after a search of the Web yielded items including message board postings. Alkhabaz, 104 F.3d at 1494-95. 104. In Alkhabaz, there was no evidence that the defendant took any action to actualize his fantasy. Id. 105. Cf. United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997) (holding that defendant should have known that chat room permitted him to be “overheard” by other visitors). Other negative externalities, such as loss of trust, result if the default position changes and Internet users assume that their audience is comprised of law enforcement personnel. See Neal Kumar Katyal, Criminal Law in Cyberspace, 149 U. Pa. L. Rev. 1003, 1008 (2001) (“[A]n internet user will not be sure that he is talking to a friend and not a government interloper seeking evidence of criminal activity.”). 106. For an approach that seeks a nuanced but principled path through Internet law, albeit one that may be more deferential to law enforcement interests than the participant-centered approach outlined in this article, see generally Kerr, Perspective in Internet Law, supra note 7 (arguing that courts and legislatures should select either “external” perspective on Internet, shaped by the physical architecture of digital communication, or “internal” perspective, focused on the expectations of the parties, in fashion that maintains continuum with pre-digital approaches to regulation of law enforcement authorities and other actors). 107. See Sunstein, supra note 5, at 51-65 (discussing lack of mediating mechanisms on the Internet). 108. Cf. Cass R. Sunstein, Why They Hate Us: The Role of Social Dynamics, 25 Harv. J. L. & Pub. Pol’y 429 (2002) (discussing role of polarization and group homogeneity in fomenting violence). 109. See PhilipB. Heymann, Terrorism and America 6 (1998) (defining terrorism as “violence conducted as part of a political strategy by a subnational group or secret agents of a foreign state”). 110. See, e.g., Dana R. Villa, Politics, Philosophy, Terror 14-21 (1999) (discussing “totalitarian terror”); Gerald L. Neuman, Terrorism, Selective Deportation and the First Amendment After Reno v. AADC, 14 Geo. Immigr. L.J. 313, 323 (2000) (discussing “state terrorism” as one strand in debates about definition of terrorism). 111. In the course of American history, domestic groups such as the Ku Klux Klan have likely committed more acts of terrorist violence with varying degrees of involvement from state actors than transnational groups such as Al Qaeda. See Virginia v. Black, 538 U.S. 343, 389 (2003) (Thomas, J., dissenting) (describing Klan as “terrorist organization”). 112. See Hoffman, supra note 1, at 100-01 (reporting that during a speech in Los Angeles, Rabbi Meir Kahane, the New York native who founded the Israeli extremist group, Kach, “described the Arabs as ‘dogs’, as people who ‘multiply like fleas’ who must be expelled from Israel or eliminated”). 113. See Margulies, Regime Change, supra note 17, at 393-95 (discussing how social comparisons generated by inequality augment social capital of terrorist groups); cf. Amy Chua, World on Fire 229 (2003) (discussing roots of anti-American global sentiment in economic inequality). 114. Margulies, Regime Change, supra note 17, at 395-96 (discussing authenticity entrepreneurship in states and organizations); cf. Charles Tilly, The Politics of Collective Violence 34 (2003) (discussing role of “political entrepreneurs” who “promote violence... by activating boundaries, stories, and relations that have already accumulated histories of violence; by connecting already violent actors with previously nonviolent allies; by coordinating destructive campaigns; and by representing their constituencies through threats of violence”); Cass R. Sunstein, Why Societies Need Dissent 117 (2003) (“Al Qaeda has made a pervasive effort to... [emphasize] a shared identity, one that includes an “us” and excludes a “them”); Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683 (1999) (analyzing role of “availability entrepreneurs” in shaping public policy by exploiting salient narratives); see also Michael Ignatieff, The Lesser Evil 127 (2004) (arguing that state and organizational entrepreneurs of collective violence, whatever their stated ideology, practice “the redescription of intended victims as inferior creatures to be brushed aside on the path to a higher goal”); Ladan Boroumand & Roya Boroumand, Terror, Islam, and Democracy, J. Democracy, Apr. 2002, at 5, 7-8 (2002) (discussing the influence of Fascism and Communism on theorists of violent Islamism, including Sayyid Qutb). 115. See Margulies, Regime Change, supra note 17, at 397. 116. President Bush’s comments that other nations are either “for us or against us” in antiterrorism efforts echo the stark nature of pronouncements that lead to collective violence. Cf. id. (criticizing “preemptive” approach of Bush Administration). While force is sometimes necessary to deal with threats, such public pronouncements create a dynamic that makes the use of force more likely, even in the absence of necessity. Terrorist organizations take similar rhetorical turns. See Abu Khubayb & Abu Zubayr, Greater and ‘Lesser’ Jihad?, available on http://www.hamasonline.com/indexx.php?page=Qassam/greater_lesser_jihads (denying legitimacy under Islamic doctrine of view that jihad struggle to improve self is more important than violence directed at others); cf. Sunstein, supra note 108, at 429 (2002) (discussing role of polarization and group homogeneity in fomenting violence). 117. See Sunstein, supra note 5, at 71. 118. See Sunstein, supra note 108, at 432. 119. See Wright, supra note 2, at 50 (noting that sites associated with Al Qaeda “move continuously... sometimes several times a day, to avoid being hacked by intelligence agencies or freelance Internet vigilantes... [webmasters of these sites] now cover themselves by stealing unguarded server space...”). 120. See Hammack, supra note 102, at 81-86 (discussing synergies between terrorist operations and Internet). 121. Cf. Virilio, supra note 87, at 12 (observing that drug traffickers in the United States have used technological innovations such as cell-phones to evade detection and apprehension). 122. The September 11 attackers, for example, traveled to Afghanistan, later to Hamburg, and finally to a variety of sites all over the continental United States, from Florida to San Diego. See 9/11 Commission Report, supra note 2, at 145-241. 123. See Lessig, supra note 7, at 42-43 (2004). 124. See Edward W. Said, Humanism and Democratic Criticism 133-34 (2004). 125. See id. at 132. 126. See Vaidhyanathan, supra note 4, at 178. 127. Al-Hussayen was acquitted of terrorism charges in June, 2004. See No Conviction for Student in Terror Case, N.Y. Times, June 11, 2004, at A14. He was subsequently deported. 128. See Douglas Jehl & David Johnston, Terror Detainee is Seen as Leader in Plot by Qaeda, N.Y. Times, Aug. 6, 2004, at A1 (reporting on a number of arrests, including the arrest in London pursuant to a sealed federal warrant of Babar Ahmed, on charges stemming from his alleged use of United States websites and e-mail to solicit funds for terrorist causes). Cf. Linda Fisher, Guilt By Expressive Association: Political Profiling, Surveillance, and the Privacy of Groups., Ariz. L. Rev. (forthcoming 2004) (discussing inappropriate surveillance of religious groups after September 11). 129. See Strum, supra note 22, at 106 (noting that Brandeis agreed with accounts of Athenian democracy, which echoed his “the concern for justice and public affairs that had to exist for the protection of democracy”); Hannah Arendt, Civil Disobedience, in Crises of the Republic 51, 94 (1972) (noting that “consent and the right to dissent became the inspiring and organizing principles of action that taught... the ‘art of associating together’” to Americans); cf. Margulies, Tales of the Unexpected, supra note 21; Michelman, Law’s Republic, supra note 21; Sunstein, Beyond the Republican Revival, supra note 21. 130. See Whitney v. California, 274 U.S. 357, 372, 375 (1927) (Brandeis, J., concurring); cf. Sunstein, Republic.Com, supra note 5, at 47 (citing Brandeis’s concurrence); Blasi, supra note 22; at 668-80 (discussing Brandeis’s opinion in Whitney); Pnina Lahav, Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech, 4 J. L. & Pol. 451 (1988) (drawing parallels between Brandeis’s perspective and civic republican thought). 131. Margaret Canovan, Hannah Arendt: A Reinterpretation of her Political Thought 111 (1992) (noting for Arendt, “what characteristically gathers and separates human beings is... the ‘public realm’”). 132. See Arendt, The Crisis in Education, supra note 23, at 17-74 (citing the “opportunity, provided by the very fact of crisis... to explore and inquire... [without] the answers on which we ordinarily rely”); Arendt, Human Condition, supra note 21, at 191 (noting “inherent unpredictability” of every body politic); Margulies, Tales of the Unexpected, supra note 21; cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 310-11 (1932) (Brandeis, J., dissenting) (praising experimentation, and noting importance of moving beyond preconceptions in world in which “the seemingly impossible sometimes happens”). 133. See Arendt, Civil Disobedience, supra note 129, at 14(noting, with regard to government deception regarding Vietnam War brought to light by Pentagon Papers, that “the policy of lying was hardly ever aimed at the enemy... but was destined chiefly, if not exclusively, for domestic consumption, for propaganda at home, and especially for the purpose of deceiving Congress”). 134. See Rabban, supra note 40, at 361. 135. See Arendt, Crisis in Education, supra note 23, at 175 (arguing that immigration demonstrates that democracy in America “did not shut itself off from the outside world... in order to confront it with a perfect model,” but instead symbolizes a commitment to what Tocqueville called an “indefinite perfectibility”); Strum, supra note 22, at 103 (arguing that working-class immigrants such as Jewish garment workers from Eastern Europe “possessed... qualities which we of the twentieth century seek to develop in our struggle for justice and democracy”). 136. See Rabban, supra note 40, at 358 (noting that Brandeis protested the harsh treatment by law enforcement authorities of members of the International Workers of the World (IWW) during a strike in Massachusetts, arguing that “citizens and aliens have, under the guise of administering or enforcement of the law, been denied civil rights”); Arendt, Human Condition, supra note 21, at 219 (arguing that labor movement sought to “found... a new public space with new political standards”). 137. See Arendt, Civil Disobedience, supra note 129, at 75. 138. See id. at 105, 108-09 (deploring proliferation of strategic thinkers who plan war through “hypothetical constructions of future events... [in which] what first appears as a hypothesis... turns immediately... into a “fact,” which then gives birth to a whole string of similar non-facts”); Arendt, Humand Condition, supra note 21, at 202-03 (arguing that tyrants who seek to rule by violence inevitably fail because they seek to substitute force for the power that emerges from the “human capacity to act and speak together”); Rabban, supra note 40, at 359 (discussing Brandeis’s rejection of the goals of the IWW and other radical groups which incorporated violence into their approach). 139. See Arendt, The Concept of History, supra note 22, at 227, 242 (noting that in participation in political discourse, “a particular issue is forced into the open that it may show itself from all sides, in every possible perspective”). 140. See Arendt, Civil Disobedience, supra note 129, at 154 (noting that a totalitarian government comprised of former revolutionaries “turns not only against its enemies but against its friends and supporters as well... the police state begins to devour its own children... [and] yesterday’s executioner becomes today’s victim”). 141. See McCraw, supra note 31, at 94-97 (discussing Brandeis’s campaign against the trusts). 142. See Arendt, Human Condition, supra note 21, at 126-35 (discussing adverse effects on participation of the rise of “consumer society”). The critique of consumerism is also crucial for cautionary Internet Exceptionalists. See Sunstein, Republic.com, supra note 5, at 117 (discussing “consumption treadmill”). 143. See Hannah Arendt, The Origins Of Totalitarianism 364-73 (1975) (discussing dynamics of totalitarian movements aspiring to state control, including commitment to paramilitary capability, iteration of core images and narratives, and shunning of engagement with opposing views). 144. See Warren & Brandeis, supra note 35, at 193, 195 (citing Judge Thomas Cooley); cf. Edward J. Eberle, Dignity and Liberty: Constitutional Visions in Germany and The United States 80-82 (2002) (discussing Brandeis’s conception of privacy). 145. Warren & Brandeis, supra note 35, at 193. 146. Id. at 196. 147. Id. Cf. Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Cal. L. Rev. 957 (1989) (describing privacy as contributing to discourse within community); Robert C. Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 Case W. Res. L. Rev. 647, 651 (1991) (arguing that for Brandeis, normative conception of privacy reflected the “respect that we owe to each other as members of a common community”). 148. Arendt, Human Condition, supra note 21, at 70. 149. Id. at 71. 150. Id. 151. Warren & Brandeis, supra note 35, at 195. 152. See Arendt, The Crisis in Education, supra note 23, at 186. 153. Warren & Brandeis, supra note 35, at 196. 154. Arendt agreed that the consumer society’s thirst for triviality could crowd out civic discourse, noting that European monarchs at the threshold of the modern era had drained the political vitality of potential rivals by expanding the circle of nobles attending the monarch, and “making them entertain one another through the intrigues, cabals, and endless gossip which this perpetual party inevitably engendered.” See Hannah Arendt, The Crisis in Culture, in BETWEEN PAST AND FUTURE 197, 199 (1977). 155. Olmstead v. United States, 277 U.S. 438, 471 (1928). 156. Id. at 474. Brandeis’s papers indicate that he viewed television, a medium barely past the experimental stage at the time Olmstead was decided, as a potential “means of espionage” that might allow future governments to reproduce in court documents covertly viewed in home offices without the resident’s knowledge or consent. See Strum, supra note 22, at 137. 157. Olmstead, 277 U.S. at 474. 158. See Arendt, The Concept of History, supra note 22, at 89 (predicting that “social techniques... have only to overcome a certain time-lag to be able to do for the world of human relations and human affairs as much as has already been done for the world of human artifacts” by earlier technology); Arendt, Lying in Politics, supra note 133, at 7-12 (in the context of revelations in the “Pentagon Papers” about United States officials’ deception regarding war in Vietnam, discussing manipulation practiced by “public-relations managers in government,” along with “problem-solvers” who turned to reductive versions of social science explanation to rid themselves of reality’s “disconcerting contingency”) (emphasis in original). 159. See Arendt, Lying in Politics, supra note 133, at 13 (discussing the ultimate futility of Stalin’s effort to “eliminate Trotsky’s role from the history of the Russian Revolution” by killing Trotsky and “eliminating his name from all Russian records”). 160. See Arendt, Human Condition, supra note 21, at 198 (noting that Greeks’ observation that, “Wherever you go, you will be a polis... expressed the conviction that action and speech create a space between the participants which can find its proper location almost any time and anywhere”). For Brandeis, decentralization was equally important to innovation and liberty. See New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 310-11 (1932) (Brandeis, J., dissenting) (discussing states as “laboratories” of federalism); Erie Railroad v. Tompkins, 340 U.S. 64 (1938) (requiring that federal courts defer to state law in diversity cases). For recent elaborations of Brandeis’s theme of decentralization promoting experimentation and refinements in the ordering of liberty, see Michael C. Dorf, The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 60 (1998) (citing Brandeis); Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998) (discussing constitutional basis for enhancing accountability and flexibility of government); cf. Daniel A. Farber, Reinventing Brandeis: Legal Pragmatism for the Twenty-First Century, 1995 U. Ill. L. Rev. 163, 175-77 (1995) (discussing Brandeis as pragmatist who rejected formalist solutions). 161. Margulies, Judging Terror, supra note 17, at 419-20; cf. Hoffman, supra note 1, at 169-80 (discussing structure of terrorist groups); Sunstein, Social Dynamics, supra note __ (same); Christopher Slobogin, A Jurisprudence of Dangerousness, 98 Nw. U.L. Rev. 1, 44-46 (2003) (arguing that rigid intractable beliefs of terrorist operatives may make them “undeterrable”); see also Greenawalt, supra note 8, at 57-65 (describing conspiracies as involving “situation-altering utterances” that bind individuals to illegal course of conduct and mute countervailing influences); Neal Kumar Katyal, Conspiracy Theory, 112 Yale L.J. 1307 (2003) (discussing psychological and organizational theory undergirding criminalization of criminal agreements). Because of this structural intractability, the familiar Brandeisian remedy of “more speech” will be far less effective. Cf. Whitney v. California, 274 U.S. 357, 372, 377 (1927) (Brandeis, J., dissenting) (arguing that “more speech” is best remedy for extreme views); Holmes-Laski Letters, supra note 65, at 204 (discussing Holmes’s move, in part due to discussions with Brandeis, toward “more speech” approach); see also supra notes 67-71 and accompanying text (discussing Holmes’s shift in Abrams). 162. Other commentators have emphasized participation in their accounts of the First Amendment. See Sunstein, Republic.com, supra note 5; Vaidhyanathan, supra note 4, at 190-92; Balkin, supra note 86; Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1411-12 (1986). Some commentators cite participation as a function of individual autonomy. Cf. Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, supra note 3, at 167 (offering “participatory perspective [that] emphasizes the autonomy of individual citizens”); C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 Ucla L. Rev. 964 (1978). This view runs the risk of slighting the interests of the audience for speech, as well as the role of some Internet communication in facilitating violence. On the other hand, Sunstein, perhaps the contemporary legal scholar most closely identified with civic republican notions of participation, sometimes slights the positive role of extreme speech in focusing attention on inequality. See Sunstein, Why They Hate Us, supra note 108 (discussing organizational dynamics as basis for terrorism, while neglecting role of perceptions of inequality as catalyst for violence); cf. Margulies, Regime Change, supra note 17, at 395 (arguing that both organizational structure and inequality are important to understanding and addressing terrorism). The account offered here, in some ways more indebted to Greenawalt’s careful treatment of the interaction of speech and crime, see Greenawalt, supra note 8, and strives for a more balanced approach regarding the impact on democracy and terrorism of changes in communications technology. 163. See Greenawalt, supra note 8, at 117-18. 164. See Abu Khubayb & Abu Zubayr, Greater and ‘Lesser’ Jihad?, supra note 116. 165. See Post, Reconciling Theory and Doctrine, supra note 3. 166. See Richard A. Posner, The Speech Market and the Legacy of Schenck, in ETERNALLY VIGILANT, supra note 52, at 121, 132. 167. See Posner, supra note 52, at 131. 168. Theodor Meron, Crimes and Accountability in Shakespeare, 92 Am. J. Int’l L. 1, 20 (1998). 169. See William Glaberson, Prosecutor Ridicules Idea of Mob Boss as Pacifist, N.Y. Times, July 24, 2004, B3 (reporting on testimony at trial of alleged mob boss Joseph Massino). At a higher pay-grade, President George W. Bush and high officials of his administration, despite their subsequent disavowals, sent signals about toleration of mistreatment of detainees in Iraq when they offered their opinions that international law was unduly restrictive or irrelevant. See Anthony Lewis, Making Torture Legal, N.Y. Rev. Bks., July 15, 2004, at 4 (discussing development of the Administration’s legal position, which disregarded both treaties and applicable precedent). 170. See Hoffman, supra note 1, at 102 (describing machine-gun attack by militant Israeli settlers, pursuant to “specific approval and sanction of their own clerical authorities,” on Islamic students at college on West Bank, which killed three and wounded thirty-five). 171. Id. at 99 (discussing attacks on Israeli civilians by Palestinian group Hamas). 172. See Tilly, supra note 114. 173. See Hoffman, supra note 1, at 119-20. 174. A key political leader of Hamas acknowledged that he used this phrase to trigger suicide bombings. See Joel Brinkley, Arabs’ Grief in Bethlehem, Bombers’ Gloating in Gaza, N.Y. Times, April 4, 2002, A1; cf. Elaine Sciolino, Moroccan Connection Is Emerging as Sleeper in Terror War, N.Y. Times, May 16, 2004, sec. 1, p. 1 (noting that comment such as “soccer team is ready” can be a trigger for illegal operations). Government evidence about use of code, public or private, by terrorist organizations, should be particularized and concrete to justify restrictions on communication. See Margulies, Virtues of Solidarity, supra note 16, at 207-10 (discussing problems with attorney-client monitoring policy implemented by Attorney General Ashcroft); Ellen S. Podgor & John Wesley Hall, Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism, 17 Geo. J. Legal Ethics 145 (2004) (same). 175. See United States v. Abdel Rahman, 189 F.3d 88, 116 (2d Cir. 1999) (upholding conviction for conspiring to blow up New York City landmarks and commit other acts of violence despite defendant’s contention that he was merely stating his opinion within bounds of First Amendment; evidence allowed the jury to infer that defendant’s communications constituted direction to act). This operational link separates the examples discussed in the text from the abstract discussions of violence protected under Brandenburg. However, fully addressing such operational speech in the terrorism context requires some modification of Brandenburg’s imminence requirement, as well as the presumption that public speech is protected. Cf. infra notes 176-80 and accompanying text. 176. See Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror 76 (2002) (noting Al Qaeda operatives’ use of encrypted e-mail communications). 177. See 9/11 Commission Report, supra note 2; Brian M. Jenkins, The Organization Men: Anatomy of a Terrorist Attack, in HOW DID THIS HAPPEN? 1, 9 (James F. Hoge, Jr. & Gideon Rose eds., 2001) (discussing planning of September 11 attacks). 178. See Hoffman, supra note 1, at 1010 (noting that Rabbi Meir Kahane “openly called upon the Israeli government to establish an official ‘Jewish terrorist group’ whose sole purpose would be to ‘kill Arabs and drive them out of Israel and the Occupied Territories’”). See generally Philip B. Heymann, Terrorism and America: A Commonsense Strategy For A Democratic Society 99 (1998) (“speeches or writings by charismatic leaders urging political violence can provide the battering ram of encouragement a potential terrorist needs to take himself past the wall of social condemnation to a willingness to commit violent acts”); Hoffman, supra note 1, at 94 (“Religion... imparted via clerical authorities claiming to speak for the divine – therefore serves as a legitimizing force. This explains why clerical sanction is so important to religious terrorists and why religious figures are often required to ‘bless’ (i.e., approve or sanction) terrorist operations before they are executed”). 179. Cf. Greenawalt, supra note 8, at 118 n. 52 (noting that precautions often possible in response to public speech are not practicable in case where “racist speaker urged members of his audience to kill a member of another race, at random”). 180. See Tilly, supra note 114, at 34; Margulies, Regime Change, supra note 17, at 395-96. 181. See Amy Waldman & Salman Masood, Elaborate Qaeda Network Hid 2 Captives in Pakistan, N.Y. Times, Aug. 3, 2004, at A10 (noting capture of Muhammed Naeem Noor Khan, a computer engineer who worked with Al Qaeda in “an elaborate network for transmitting messages across Pakistan and then posting them in coded e-mail messages or on the Web”). 182. See Douglas Jehl & David Johnston, Reports That Led to Terror Alert Were Years Old, Officials Say, N.Y. Times, Aug. 3, 2004, A1 (discussing discovery of detailed information apparently compiled by Al Qaeda operatives about security arrangements at United States and global financial institutions). 183. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133-36 (9th Cir. 2000), cert. den. sub nom Humanitarian Law Project v. Ashcroft, 532 U.S. 904 (2001). 184. Id. at 1136 (noting difficulties in accounting for money distributed transnationally, and asserting that some ostensibly nonviolent activities, such as special support for the families of suicide bombers, also aid and abet violence); cf. Margulies, Virtues and Vices of Solidarity, supra note 16, at 200-07 (same); Neuman, Terrorism, Selective Deportation and the First Amendment, supra note 110, at 329-30 (same). Even scholars who argue, with some justification, that the mobilization rationale is overbroad concede that Congress could prohibit fund-raising for groups, such as Al Qaeda, “so committed to violence that all other activities are merely a front for terrorism.” See Cole, supra note 17, at 62. This concession begs the question of who decides which groups meet the standard. As an institutional matter, courts may not be the optimal forum to assess the degree of transnational organizations’ commitment to violence. See U.S. v. Rahmani, 209 F. Supp.2d 1045, 1051-52 (C.D. Ca. 2002) (holding that appropriateness of designation of group as terrorist organization is political question, while holding that the procedures surrounding the designation must meet due process requirements for notice and an opportunity to be heard); see infra notes 201-06 and accompanying text (proposing limits on mobilization rationale as basis for culpability). 185. See 18 U.S.C. 2339B. Material support includes funding, training, “expert advice or assistance”, “communications equipment”, “personnel”, “transportation”, and “other physical assets.” See 18 U.S.C. 2339A(b) (2002). Funding includes “currency or monetary interests in financial securities... [and] financial services”. Id. Material support also includes “lodging, ... false documentation or identification, facilities, weapons, lethal substances, [and] explosives”. The USA Patriot Act added the “expert advice or assistance” category in 2001. A number of courts have held that some of these terms are unconstitutionally vague as applied, see, e.g., United States v. Sattar, 272 F. Supp.2d 348, 357-61 (S.D.N.Y. 2003) (holding that “personnel” and “communications equipment” were unconstitutionally vague as applied); cf. COLE, supra note17, at 75-79 (arguing that statute on its face violates First Amendment); Robert M. Chesney, Civil Liberties and the Terrorism Prevention Paradigm: The Guilty By Association Critique (Review Essay), 101 Mich. L. Rev. 1408, 1433-51 (2003) (discussing material support statute, and arguing that certain terms, such as “personnel,” are unconstitutionally vague in the sec. 2339B context); but see Margulies, The Virtues and Vices of Solidarity, supra note 16, at 203-07 (arguing that provisions are not vague as applied to facts of Sattar, where government charged defendants with knowingly acting on behalf of a designated terrorist organization in order to facilitate violent acts). 186. See 18 U.S.C. 2339A (prohibiting material support to conspiracies to commit specific violent crimes, such as a conspiracy to kill or kidnap persons in a foreign country, prohibited by 18 U.S.C. sec. 956); cf. United States v. Sattar, 314 F. Supp.2d 279, 296-303 (S.D.N.Y. 2004) (holding, when government filed superseding indictment under sec. 2339A after dismissal of charges brought under 2339B on vagueness grounds, that 2339A prohibitions, because they referred to specific crimes, were not unconstitutionally vague); cf. Chesney, supra note 185 (discussing differences between sections 2339A and B). 187. Cf. Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 Wm. & Mary L. Rev. 2209, 2236-60 (2003) (discussing political and institutional factors that tend to broaden the scope of criminal liability under federal statutes); Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 799-801 (2003) (discussing institutional incentives of prosecutors and other law enforcement officials); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001) (discussing convergence of interests between legislators and prosecutors that broadens scope of criminal law). 188. See United States v. O’Brien, 391 U.S. 367 (1968). 189. See Dorf, supra note 15. 190. See id. (criticizing implementation of test as unduly deferential); Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767, 775-78 (2001) (questioning coherence of incidental burdens analysis). 191. United States v. O’Brien, 391 U.S. 367 (1968). 192. Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001). 193. See Greenawalt, supra note 15, at 328-31; Dorf, supra note 15, at 1202-05. 194. See Vaidhyanathan, supra note 4. 195. Cf. Liam Seamus O’Melinn, The New Software Jurisprudence and the Faltering First Amendment, 6 Vand. J. Ent. L. & Prac. 310, 316-18 (2004) (criticizing incidental burdens analysis in Corley). 196. See DVD Copy Control Ass’n v. Bunner, 116 Cal. App.4th 241, 251 (Ct. App. 6th App. Dist. 2004) (endorsing celebratory view of simultaneity, which regards regulation as futile). 197. According to the government in its indictment, Al-Hussayen helped “create, operate, and maintain” a website, www.islamway.com, that “included links to a variety of articles, speeches, and lectures promoting violent jihad in Israel.” On this site, according to the indictment, a page asked visitors the question, “What is your role?,” answered by urging visitors to contribute to Hamas, and provided a hyperlink to another site, www.palestine-info.org, to permit donations to Hamas. See United States v. Al-Hussayen, Cr. No. 03-0048-C-EJL (D. Idaho March, 2004) (hereinafter Al-Hussayen Indictment), at 8. 198. See id. at 9 (alleging that a February, 2000 posting by the defendant urged members of the group to “donate money to support those who were participating in violent jihad”). 199. No Conviction for Student in Terror Case, N.Y. Times, June 11, 2004, A14. 200. See Saudi Acquitted in Terror Case is Deported, L.A. Times, July 22, 2004, A14. 201. See Jehl & Johnston, Terror Detainee is Seen as Leader in Plot by Al Qaueda, supra note 128, at A9. 202. See Margulies, Virtues and Vices of Solidarity, supra note 16, at 203-07 (noting that providing human capital, such as expertise with information technology, directly to DFTO is analogous to providing financial capital, given integrated nature of organization and organization’s ability to use human capital to defray other costs); see generally Chesney, supra note 185 (acknowledging that Congress could criminalize financial contributions and certain forms of human capital such as specific instruction in use of explosives, while arguing that criminalizing other forms of human capital triggers vagueness concerns); supra note 184 and accompanying text (discussing case law and commentary on integrated structure of terrorist organizations). 203. Posting or linking should require similar evidence. Suppose a defendant designs a website and includes a link to the official website of Hamas or Kach. Once linked to the DFTO website, a visitor can click on another link to receive information about contributing financial assistance or other resources to the organization, or possibly even contribute on-line. Despite this, criminalizing provision of the link without more would raise substantial constitutional problems, because of its impact on the provision of information or the expression of affiliation. For example, an anti-terrorist organization could include the link to offer visitors to its site an opportunity to see for themselves the nature of the material on the DFTO site. Others who merely seek to express their affiliation with the DFTO could link for that purpose. For this reason, even proof of specific intent to encourage contributions should be insufficient, without evidence that the defendant acted in concert with the organization. Cf. Comcast of Illinois X, L.L.C. v. Hightech Electronics, Inc., No. 03-C-3231, 2004 U.S. Dist. LEXIS 14619, *18 (N.D. Ill. stet 2004) (holding that plaintiff, cable operator, stated a claim for relief by alleging that defendant received compensation for links to websites that sold illegal pirating devices); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999) (holding that liability for links to websites containing copyright-infringing material would not attach absent proof of “direct relationship” between defendant and individuals operating websites); with Universal City Studios, Inc. v. Corley, 273 F.3d 429, 456 (2d Cir. 2001) (upholding injunction on posting code that circumvented user-restrictions or linking to sites containing code if defendant knew offending material was on site, knew material was illegal, and acted with purpose of disseminating code); cf. Shady Records, Inc. v. Source Enterprises, No. 03 Civ. 9944, 2004 U.S. Dist. LEXIS 10511, slip op. at 10-12 (S.D.N.Y. stet 2004) (holding defendant magazine in contempt for violating court order that required removal of links on magazine’s website to complete lyrics of song by rapper Eminem). 204. See United States v. Dahlstrom, 713 F.2d 1423, 1428 (9th Cir. 1983) (holding that generalized instructions to an audience on how to violate the tax code, along with advocating for tax shelter scheme that was not clearly illegal at the time of the conduct, are protected). 205. See United States v. Buttorff, 572 F.2d 619, 623 (8th Cir. 1978) (to establish culpability for aiding and abetting filing of fraudulent tax return, defendant would have to “in some sort associate himself with the venture” in a specific manner); United States v. Raymond, 228 F.3d 804, 807 (7th Cir. 2000) (defendant negotiated with individuals interested in purchase of defendant’s set of tax violation materials, selling materials for as much as $2,600; many purchasers subsequently engaged in violation of the tax laws); cf. United States v. Estate Preservation Servs., 202 F.3d 1093, 1198-99 (9th Cir. 2000) (arguing that extent of defendant’s participation in tax violations committed by others was factor in issuance of injunction against “plan or arrangement” to furnish statements in tax return pursuant to 26 U.S.C.§ 6700); United States v. Schiff, 379 F.3d 621, 626-30 (9th Cir. Aug. 9, 2004) (employing commercial speech analysis to justify enjoining defendants who expressed protected anti-tax views in book but also used book to market deceptive products on website). 206. Conduct of this kind strongly resembles what Kent Greenawalt calls “situation-altering utterances.” See Greenawalt, supra note 15, at 244-45 (noting that individualized training for illegal activities should not constitute protected speech). 207. United States v. Sattar, 314 F. Supp.2d 279 (S.D.N.Y. 2004). 208. Id. at 291. 209. See United States v. Abdel Rahman, 189 F.3d 88, 109-17 (2d Cir. 1999) (upholding conviction of defendants under federal seditious conspiracy statute, 18 U.S.C. 2384, for inter alia, conspiring to blow up New York City landmarks such as the Holland Tunnel). Members of the group, in an avowed attempt to gain the leader’s release, engaged in a massacre of more than sixty people at a tourist site in Luxor, Egypt. See Hoffman, supra note 1, at 93 (discussing Luxor attack); Douglas Jehl, 70 Die in Attack at Egypt Temple, N.Y. Times, Nov. 18, 1997, at A1 (same). The defendants in Sattar include defense attorney Lynne Stewart and others working for Stewart, who allegedly used their access to the Sheikh as his legal representatives to facilitate communications about future violent activities. Cf. Margulies, Virtues and Vices of Solidarity, supra note 16, at 194 (arguing that if allegations are true, Stewart “crossed the line” separating advocate from accomplice and merited prosecution). Stewart is mounting a vigorous defense. See Justice for Lynne Stewart, at http://lynnestewart.org (last visited Oct. 12, 2004). 210. A fatwah like the one allegedly endorsed by Sheikh Abdel Rahman authorizing the killing of Jews “wherever they are,” or a “death sentence” distributed on the Internet regarding a group or an individual, should be reachable by the law despite its arguably public nature and lack of demonstrable imminence. See supra notes 176-80 and accompanying text. Often, such authorizations have direct links with subsequent violent operations. See Hoffman, supra note 1, at 97 (noting that persons responsible for first World Trade Center bombing in 1993 “specifically obtained a fatwa from Sheikh Omar Abdel Rahman... before planning their attack”). Where the government has designated a group as a terrorist organization through a statutory process, restrictions on the communication of potential incitements can also fit a counter-mobilization rationale, constituting legal attempts to disrupt terrorists’ communications networks. In this sense, a bar on intra-organization communications about proposed violent activity is akin to a bar on the receipt or collection of funds, or on the provision of communications equipment to organization members. See 18 U.S.C. § 2339(a) (setting activities that constitute material support). Since the law could appropriately prohibit an individual from lending the incarcerated leader of the organization a disposable cell-phone on which to make calls to organizational operatives, see Chesney, supra note 185; it could also prohibit a visitor to the leader from acting as a communications link that gives the leader input from subordinates and allows him to offer instructions. 211. Organizations with recent histories of violence may in some cases exhibit a more heterogeneous, mediated discourse. Indeed, there is some evidence that this is true of the organization involved in the Sattar case, the Gama Islamiya or Islamic Group (IG). See Lawyer denies Islamic Group has withdrawn backing for peace, BBC Summary of World Broadcasts, June 24, 2000 (quoting Egyptian lawyer for faction of Islamic Group as disputing report that Sheikh Abdel Rahman had withdrawn his support for the cease-fire). However, in such cases members of the group committed to violence may splinter off, forming a new group that complies with the leader’s decrees. Groups committed to violence need not be numerous to be deadly, as the nineteen September 11 hijackers demonstrated. The issue of change in terrorist organizations such as IG is nonetheless a difficult one not adequately addressed in current United States anti-terrorism law. I have suggested elsewhere that designated terrorist organizations have the opportunity to apply for “transition relief,” a remedy akin to bankruptcy that would allow the organization to wipe the slate clean and chart a non-violent course in the future. A mechanism for affording such relief to organizations that demonstrate a transition to non-violence would strengthen incentives for positive change. See Margulies, Regime Change, supra note 17, at 410. Effective anti-terrorism policy also requires assistance to grass-roots groups abroad that support non-violent reform. Id. at 411-12; cf. Madhavi Sunder, Piercing the Veil, 112 Yale L.J. 1399, 1433-57 (2003) (noting role of women’s groups in working within framework of Islamic culture and society); Janine A. Clark & Jillian Schwedler, Who Opened the Window? Women’s Activism in Islamist Parties, 35 Comp. Pol. 293 (2003) (same); see also Heiner Bielefeldt, “Western” Versus “Islamic” Human Rights Conceptions? A Critique of Cultural Essentialism in the Discussion of Human Rights, 28 Pol. Theory 90, 109-12 (2000) (noting diversity and nuance as well as common ground within cross-cultural conceptions of human rights); Volpp, supra note 17, at 1592-98 (same). 212. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455 (2d Cir. 2001). 213. Id. at 454-55; see Vaidhyanathan, supra note 4, at 70 (“it would be hard to show that hacking through [the user restriction] CSS... contributes to piracy or peer-to-peer distribution for one simple yet often ignored reason: CSS regulates access and compatibility, not copying. Anyone can copy the data on a DVD with little effort. Playing a DVD on an unauthorized machine is another matter”). 214. See Lessig, supra note 7; see also Tom Zeller, Jr., Permissions on Digital Media Drives Scholars to Lawbooks, N.Y. Times, June 14, 2004, at C4 (describing travails of Prof. Edward Felten of Princeton, who was subjected to threats of a lawsuit over publication of a paper analyzing technologies to secure music files online). 215. See DVD Copy Control Ass’n v. Bunner, 116 Cal. App. 4th 241, 253 (Cal. Ct. App. 2004) (arguing that injunction would be unavailing in Internet intellectual property case because of widespread circulation of decryption code); see also Vaidhyanathan, supra note 4, at 71-72 (author notes that, “Within days of the injunction [in Corley], T-shirts appeared with the [decryption] code emblazoned on them (with the headline, ‘I am a circumvention device.’). People wrote poems and songs that expressed the code lyrically. Internet users appended the code to the signature sections of e-mails”). 216. See Ashcroft v. ACLU, 124 S. Ct. 2783, 2794 (2004) (noting that courts below failed to consider rate of change of technology on Internet); Lee, supra note 94, at 1307-08 (same). 217. Rice v. Paladin Enters., 128 F.3d 233, 235-40, 243 (4th Cir. 1997) (denying summary judgment to publisher). 218. See Rex Ferel, Hit Man Online: A Technical Manual for Independent Contractors, at http://ftp.die.net/mirror/hitman (last visited Aug. 20, 2004). 219. Cf. Philip B. Heyman, Terrorism, Freedome, and Security: Winning Without War 108 (Mit. Pr 2003) (citing Paladin for principle that “constitutional protections... may not prevent criminalizing the dissemination of information intended to help others in committing a crime by, for example, publishing instructions on how to commit a terrorist attack”). 220. In this sense, the “Hit-Man” case and the Jihad manual are different from the cases on the publishing of tax avoidance schemes. In most of the tax schemes, see United States v. Schiff, 2004 U.S. App. Lexis 16351 (9th Cir. Aug. 9, 2004), the defendants have engaged in some degree of interaction with the persons who may use defendants’ products or materials to file fraudulent returns. See United States v. Raymond, 228 F.3d 804, 815 (7th Cir. 2000); cases cited supra notes 204-06 and accompanying text. In Schiff, for example, the defendant wrote a book arguing that the administration of the tax laws was unfair and unconstitutional, suggesting that taxpayers enter “zero” as the amount of income to be taxed, regardless of the money the taxpayer had actually earned. In upholding an injunction against the defendant’s continued sale of his book on his website, http://www.paynoincometax.com , and a requirement that the defendant post the injunction on his site, the court noted that the defendant also marketed packets and kits on the site that purport to assist taxpayers in legally paying no taxes. (The website items include a “Lien and Levy Packet” priced at $95.00 that offers similar tax advice.) The site allows visitors to e-mail the defendant. Cf. David Cay Johnston, Federal Grand Jury Indicts Protester for Tax Evasion, N.Y. Times, Mar. 25, 2004, at C8 (reporting that Schiff and co-defendants were charged with tax evasion and conspiracy to commit tax fraud based on Schiff’s alleged failure to declare $3.7 million in sales from his bookstore, defendants’ use of offshore accounts to conceal income and assets, and defendants’ preparation of at least 4,950 returns falsely declaring zero income). Applying a commercial speech rationale, the court held that while Schiff’s book contained protected speech about the tax system, viewed in its totality it served as a marketing tool for the deceptive products Schiff sold on his website. The interactivity and integrated nature of Schiff’s enterprise distinguish the case from Paladin. 221. See Rodney Smolla, From Hit Man to Encyclopedia of Jihad: How to Distinguish Freedom of Speech from Terrorist Training, 22 Loy. L.A. Ent. L. Rev. 479 (2002). 222. The Justice Department has placed an alleged Al Qaeda training manual on the Internet. See http://www.usdoj.gov/ag/trainingmanual.htm (last visited Aug. 20, 2004). 223. See Kanan Makiya & Hassan Mneimneh, Manual for a ‘Raid’, The N.Y. Rev. of Books, Jan. 17, 2002, at 18, 20 (discussing Al Qaeda training manuals’ targeting of population centers). 224. See Steven J. Sherman, et al., Imagining Can Heighten or Lower the Perceived Likelihood of Contracting a Disease: The Mediating Effect of Ease of Imagery, in Heuristics and Biases: The Psychology of Intuitive Judgment 98, 101 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds., 2002) (noting that images that are readily available to human cognition, such as a disease with readily identifiable symptoms, raise assessments of probability of contracting disease even in the absence of objective evidence); see also Amos Tversky & Daniel Kahneman, Extensional versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, in Heuristics and Biases, supra, at 19, 22-25 (noting that judgments about representativeness, defined as superficial similarity between events, raise probability assessment); see also Kuran & Sunstein, supra note 114 (discussing “availability cascades” as influence on public policy); see also Matthew Rabin, Psychology and Economics, 36 J. Econ. Lit. 11, 30-31 (1998) (discussing importance of salience in human inference); see also Rosen, supra note 57at 75 (discussing cognitive biases in war on terror); see also Oren Gross, Chaos and Rules: Should Responses to Violent Crisis Always Be Constitutional?, 112 Yale L.J. 1011, 1019 (2003) (same); cf. Peter Margulies, "Who Are You to Tell Me that ?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C.L. Rev. 213, 232-34 (1990) (discussing cognitive biases in lawyering). 225. See Margulies, Regime Change, supra note 17, at 404-19 (discussing approaches, such as more equitable immigration policy, that stress equality and liberty as well as security in anti-terrorism efforts). 226. The legal system also has coercive strategies currently available when necessary, including military action when required by self-defense, cf. William C. Banks & Peter Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework, 37 U. Rich. L. Rev. 667, 679-80 (2003) (discussing “customary constitutional authority” for exigent measures based on self-defense); see Richard Falk, Ends and Means: Defining a Just War, The Nation, Oct. 29, 2001, at 11, 12 (justifying American resort to force against the Taliban regime in Afghanistan by arguing that Al Qaeda is a “transnational actor... [whose] relationship to the Taliban regime in Afghanistan [was]... contingent, with Al Qaeda being more the sponsor of the state rather than the other way around”), prosecution of individuals actually committing or conspiring to commit terrorist criminal acts, see United States v. Sattar, 314 F. Supp.2d 279, 296-303 (S.D.N.Y. 2004) (upholding charges under 18 U.S.C. sec. 2339A against vagueness challenge), and detention of alleged unlawful combatants with appropriate procedural safeguards; see Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) (holding that presumptive United States citizen detained as alleged enemy combatant was entitled to procedural protections such as right to be heard and right to counsel); see also Rasul v. Bush, 124 S. Ct. 2686 (2004) (finding federal jurisdiction under habeas statute to hear petitions of alleged Al Qaeda detainees at Guantanamo Bay Naval Base); cf. Margulies, Judging Terror, supra note 17, at 417-31 (discussing due process in detention of alleged unlawful combatants). 227. See Tversky & Kahneman, supra note 224. 228. For example, the material on secrecy in the “Hit Man” manual, which boils down to a generic “Trust no one, especially women,” see “Hit Man” supra note 218, largely duplicates the advice in the Al Qaeda Training Manual, supra note 222. 229. See “Hit Man” manual, supra note 218. 230. United States v. Progressive, Inc., 467 F. Supp. 990, 992 (W.D. Wis. 1979) (enjoining publication of formula for hydrogen bomb); cf. Near v. Minnesota, 283 U.S. 697, 715-16 (1931) (dicta asserting that courts could enjoin disclosure of movements of military transports or “number and location of troops”); N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (holding that First Amendment barred injunction against publication of Pentagon Papers which detailed course of United States involvement in Vietnam). 231. See Vaidhyanathan, supra note 4, at 132; but see Eugene Volokh, Crime-Facilitating Speech, at http://www1.law.ucla.edu/~volokh/facilitating.pdf (conceding difficulties of developing infrastructure to exploit information about weapons of mass destruction, but arguing that government can nonetheless prohibit publication of such information). 232. But see S. Elizabeth Wilborn Malloy & Ronald J. Krotoszynski, Jr., Recalibrating the Cost of Harm Advocacy: Getting Beyond Brandenburg, 41 Wm. & Mary L. Rev. 1159, 1225 (2000) (arguing that law and policy would justify criminalizing publication of bomb-making recipe by Unabomber); cf. Susan W. Brenner, Complicit Publication: When Should the Dissemination of Ideas and Data Be Criminalized?, 13 Alb. L.J. Sci. & Tech. 273 (2003) (analyzing issues concerning the extent to which criminal liability can be imposed for the dissemination of certain types of speech). 233. See supra notes 201-06 and accompanying text. 234. See Posner, supra note 52, at 361 (arguing that pragmatic application of First Amendment principles would permit prohibition on “disseminating a truthful formula for making poison gas”); cf. Ignatieff, supra note 114, at 161-62 (arguing for carefully tailored regulation of distribution of scientific data). On the other hand, courts should strongly consider constitutional protection for independent individuals who obtain information through methods that the law formerly considered fair use, such as “reverse engineering” of software. See David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673 (2000); David A. Rice, Sega and Beyond: A Beacon for Fair Use Analysis... At Least As Far As It Goes, 19 Dayton L. Rev. 1131, 1160-63 (1994) (discussing reverse engineering as fair use). While licensing agreements for software often prohibit reverse engineering, this process often resembles a venerable independent pursuit such as taking apart a car engine much more than it resembles free-riding or exploiting access to information gleaned through work sponsored by the putative owner of the intellectual property at issue. Cf. Weiser, supra note 4, at 547-49 (discussing reverse engineering). Treating both courses of conduct as actionable extends the ambit of intellectual property into areas of independent inquiry appropriately reserved for First Amendment protection. See Lessig, supra note 7. 235. See Cole, supra note 17; Bosniak, supra note 25; Margulies, Uncertain Arrivals, supra note 17. 236. Cf. Virginia v. Black, 538 U.S. 343, 389 (2003) (Thomas, J., dissenting) (describing Klan as “terrorist organization, which, in its endeavors to intimidate, or even eliminate those it dislikes, uses the most brutal of methods”). 237. See Arendt, The Origins of Totalitarianism, supra note 143, at 344-45 (noting that Nazi campaign of assassination of political opponents, along with their public claiming of responsibility, “attempted to prove to the population the dangers involved in mere membership” of groups opposing Nazis, and “made clear to the population.... that the power of the Nazis was greater than that of the authorities;” also noting “[t]he similarities between this kind of terror and plain gangsterism”). 238. Threats against a public figure, such as the President, have a similar result, by raising the specter that private agendas or obsessions can frustrate the will of the people expressed through the electoral process. 239. In the appropriate context, a statement such as, “We know where you live,” may be a powerful threat, because it suggests that the speaker has access to information about the subject that renders the subject vulnerable and has a motivation for exploiting that vulnerability. 240. See Virginia v. Black, 538 U.S. 343 (2003) (history of cross-burning provides satisfies objective test required for verbal or symbolic action to constitute true threat). 241. The Ninth Circuit Court of Appeals held that the maker of the communications could reasonably foresee that the subject of the descriptions would interpret them as a “serious expression of intent to harm.” See Planned Parenthood v. American Coalition of Life Activists (ACLA), 290 F.3d 1058 (9th Cir. 2002) (ruling that circulating “Wanted Posters” of doctors who performed abortions and posting their names on web site entitled the “Nuremberg Files” constituted “true threat” outside ambit of First Amendment). 242. On the other hand, courts will not use true threat doctrine to stifle the dissemination of information, including some personal information, when that information facilitates political participation, such as peaceful protest of perceived law enforcement overreaching. See Sheehan v. Gregoire, 272 F. Supp.2d 1135, 1142 (W.D. Wash. 2003) (holding unconstitutional statute that barred distribution of home address or phone number of law enforcement or judicial employees “with intent to harm or intimidate,” regardless of whether a reasonable person would view herself as threatened by such disclosure, in case where operator of website calling for law enforcement accountability called solely for lawful protest and had no record of violent action); cf. Gov’t Attempts Subpoena for Indymedia Logs – Service Provider Refuses, at http://www.indymedia.org (last viewed Aug. 30, 2004) (discussing government efforts to acquire information regarding activist group’s posting of personal information about delegates to Republican National Convention). 243. See Sunstein, Republic.com, supra note 5; supra note 117 and accompanying text; cf. Brenner, supra note 232, at 383 (noting that operator of website dedicating to stalking targets can readily include photographs or video of victim). 244. See Steven Lee Myers, A Russian Fighting Hate is Killed in Hate, N.Y. Times, June 26, 2004, at A7 (discussing murder of Russian researcher on hate groups, who had aided the police in law enforcement efforts focusing on “how the language [these groups] used... on the Internet constituted incitement to ethnically motivated violence;” website had published a letter (apparently appearing only after victim’s death, although dated prior to his murder) imposing a “death sentence” on the victim); cf. Brenner, supra note 232 (noting Internet’s ability to direct “diffuse” groups held together by common interests rather than geographic location); Hammack, supra note 102 (same). 245. Speakers who leverage violence in this fashion and subsequently cite the First Amendment to frustrate accountability are free riders who contribute little to political debate but seek to derive advantage from constitutional commitments. In contrast to the contribution made by persons who utter extreme or outrageous opinions and thereby question mainstream assumptions, cf. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, in Eternally Vigilant, supra note 3, at 153, 168-70 (viewing speaker’s experience of participation as crucial, while also acknowledging more instrumental notion of contribution to self-government), speakers who leverage a history of violence for purposes of intimidation practice a particularly cynical brand of what Frederick Schauer has called “First Amendment opportunism.” See Frederick Schauer, First Amendment Opportunism, in Eternally Vigilant, supra note 3, at 175, 196-97. Of course, all constitutional commitments engender some free riding. Id. at 191-92. However, this is not a valid objection to attempts to limit free riding, but merely an indication that courts must ensure that such limits are narrowly tailored. 246. See Greenawalt, supra note 15, at 252 (whether a threat is criminal “does not depend on whether the speaker actually intends to carry out the threat; it is sufficient that he intentionally lead the listener to think that he will carry out the threat”). See also Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058, 1075-76 (9th Cir. 2002) (holding that culpability for true threat does not depend on ability to execute threat). Some courts have required more specific evidence of the speaker’s capacity and inclination to make good on the threat as proof of the reasonableness of the target’s apprehension. See United States v. Kelner, 545 F.2d 1020 (2d Cir. 1976); cf. Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 Tex. L. Rev. 541, 590 (2000) (arguing that speaker’s communication of “intent to carry out the threat personally” is crucial to definition of true threat); Jennifer E. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283, 289 (2001) (same). Just as material not cast as a threat in semantic terms can be threatening in context, context may indicate that material that constitutes a threat in semantic terms should not trigger liability. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982); Watts v. United States, 394 U.S. 705, 706, 708 (1969) (court held that Vietnam war protester who in course of speech at rally said, “I have got to report for my physical [pursuant to the draft] this Monday... I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” was not making threat but engaging in “very crude offensive method of stating a political opposition to the President”). Context can also help determine the nature of the speaker’s intent. See Virginia v. Black, 538 U.S. 343, 365-66 (2003) (noting that state can criminalize cross-burning directed at individuals, but not cross-burning not so directed, for example, cross-burning at rally or on motion-picture lot). Judges and commentators have argued vigorously that the “Nuremberg Files” case burdens free speech, because the defendants were expressing views on abortion, an issue in the public arena. See Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058, 1089 (9th Cir. 2002) (Kozinski, J., dissenting); G. Robert Blakey & Brian J. Murray, Threats, Free Speech, and the Jurisdiction of the Federal Criminal Law, 2002 BYU L. Rev. 829; cf. C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev. 979, 990-92 (1997) (arguing that attempts to hold speakers accountable for harm done by others unduly discount autonomy interest of speaker in articulating her values, as well as “mental mediation” provided by actual perpetrator who responds to speaker). The counter-argument here, as in the case of tax resistance advocacy coupled with commercial speech, see United States v. Schiff, 2004 U.S. App. Lexis 16351 (9th Cir. Aug. 9, 2004), is that the speaker can readily separate protected expressions of affiliation from offending conduct. This is true even when the conduct at issue involves a category of speech, such as threats or criminal agreements. See Virginia v. Black, 538 U.S. 343, 361-62 (2003) (“When the basis of content discrimination consists entirely of the very reason that entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists”); cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 393 (1992) (“content [of fighting words] embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”). To pass First Amendment muster, the court must narrowly tailor its definition of the prohibited category and analyze context with care. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982) (finding that remarks of community leader, viewed in context, were threats of community ostracism protected by First Amendment, not proscribable threats of violence); Volokh, Freedom of Speech and Information Privacy, supra note 231, at 1108-09 (noting that public remarks threatening social ostracism or disapproval are integral to robust social and political debate and therefore constitute protected speech). 247. See Planned Parenthood of the Columbia/Willlamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058, 1078 (9th Cir. 2002) (discussing importance of context for in evaluating a threat to the speaker). 248. See John Kass, Hale Supporters Confused About Whom to Hate, Chi. Trib., April 28, 2004, at C2. 249. Id. 250. See Matt O’Connor, Officials Monitor Hate Talk on Web, Backlash Feared on Hale Verdict, Chi. Trib., April 28, 2004, at C1. 251. See id. 252. My attempts to secure Internet access to the sites with the erroneous information about the witness turned up Internet addresses that were apparently unavailable at the time of the search. An ISP that on its own or because of government intervention stops publication of an on-line threat provides a narrowly crafted source of mediation that is consistent with the participation-centered approach. Connoisseurs of the political and social opinions advanced on sites that publish threats should not despair of the availability of alternative fora. See, e.g., www.gentileworld.com (last visited Aug. 10, 2004) (noting and critiquing world dominance by Jews); www.whitestruggle.net/Kosher_Konspiracy.html (last visited Nov. 14, 2004) (same). 253. Cf. Schwartz, supra note 5 (arguing that some measures ensuring privacy in cyberspace serve interests of democratic participation); Solove, supra note 5 (same); with Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stan. L. Rev. 1049, 1108-09 (2000) (arguing that asserting link between privacy and democratic participation could justify overbroad regulation of otherwise protected speech). The nature and alienability of an individual’s interest in privacy of personal data has inspired an extensive literature. See Paul M. Schwartz, Property, Privacy, and Personal Data, 117 Harv. L. Rev. 2055 (2004) (arguing for regulated market in personal data); Pamela Samuelson, Privacy as Intellectual Property, 52 Stan. L. Rev. 1125 (2000) (arguing for market system for personal data, but asserting that property rights are too rigid for this purpose); but see Anita L. Allen, Coercing Privacy, 40 Wm & Mary L. Rev. 723 (1999) (arguing for some level of inalienability with respect to personal data, on grounds that law should not allow people to sacrifice fundamental aspects of personhood); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan. L. Rev. 1373 (2000) (same). 254. See Colorado v. Bryant, 2004 Colo. Lexis 557 (July 19, 2004). 255. See Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) (striking down statute barring truthful publication of the name of alleged juvenile offender); Florida Star v. B.J.F., 491 U.S. 525 (1989) (vacating as unconstitutional damage award against newspaper that had revealed name of rape complainant). 256. For a useful discussion of the rationale for rape shield laws, see Tracey A. Berry, Comment, Prior Untruthful Allegations Under Wisconsin’s Rape Shield Law: Will Those Words Come Back to Haunt You?, 2002 Wis. L. Rev. 1237, 1243-44. 257. Of course, the court also has inherent power to punish attorneys appearing in the case for disclosing such information contrary to court order. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796 (1987) (“The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.”); Fred C. Zacharias & Bruce A. Green, Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory, 56 Vand. L. Rev. 1303, 1311-13 (2003) (discussing judicial inherent authority). 258. See, e.g., Volokh, Crime-Facilitating Speech, supra note 231. 259. Id.; Solove, supra note 5. 260. See Volokh, Crime-Facilitating Speech, supra note 231. 261. See Solove, supra note 5 (making argument that personal information is not speech). 262. Id. 263. See Reno v. Condon, 528 U.S. 141 (2000) (upholding federal Driver Privacy Protection Act, which imposed penalties on state selling driver information obtained by state as regulator of driving safety, and on persons obtaining information from state); cf. Froomkin, The Death of Privacy?, supra note 7 (offering narrow reading of Condon). 264. See supra notes 233-34 and accompanying text. 265. The term “algorithm” as used here takes in a range of software used by government and ISP’s. See Ashcroft v. ACLU, 124 S. Ct. 2783, 2792-93 (2004) (discussing development of Internet filters); United States v. American Library Ass’n, 539 U.S. 194 (2003) (upholding constitutionality of statute requiring filters in library computers as condition of federal funding); see also Stephen J. Schulhofer, The Enemy Withing: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11 40-42 (2002) (arguing that Carnivore can be misused); cf. Rosen, supra note 57, at 196-97 (discussing government Internet “packet-sniffer” Carnivore, which allows the government acting pursuant to court order permitting collection of evidence of crime to sort out Internet traffic within scope of order); Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn’t, 97 Nw. U.L. Rev. 607, 649-54 (2003) (explaining Carnivore technology, and arguing that USA Patriot Act imposed new privacy restraints on Carnivore deployment); see generally Jonathan Zittrain, Internet Points of Control, 44 B.C. L. Rev. 653 (2003) (discussing controls at ISP level). 266. See Volokh, Crime-Facilitating Speech, supra note 231 (discussing First Amendment issues with this approach). 267. See United States v. American Library Ass’n, 539 U.S. 194, 220-22 (2003) (Stevens, J., dissenting); cf. Rosen, supra note 57, at 196-97 (urging government to make available source code for Carnivore, so that independent analysts can assess its efficacy). 268. See Rosen, supra note 57; Schulhofer, supra note 265; Kerr, supra note 265. 269. See Deibert & Stein, supra note 2, at 171 (discussing Al Qaeda’s use of verbal codes to convey instructions). 270. United States v. American Library Ass’n, 539 U.S. 194 (2003). 271. Id. at 233-35 (Souter, J., dissenting). 272. Cf. Zittrain, supra note 265. 273. See supra notes 248-52 and accompanying text. |
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