Hate Mongers and Tunnel Rats are Entitled to Free Speech, Too

(cross posted at the Citizen Media Law Project)
It's often said that bad cases make bad law.  In the case of a decision issued by a New Jersey state court back in December, a bad case has also made for bad law commentary.

You may have heard about the Apex Technology case, which we covered in our Legal Threats Database.  In a broad order issued days before the Christmas holiday, a New Jersey court issued the takedown of three websites critical of the  H-1B visa program, which allows skilled foreigners to work in the U.S. 

The order was issued in connection with a defamation case in which Apex Technology Group, Inc. sued the anonymous posters of comments on the Endh1b.com blog (now offline), accusing Apex of not paying the workers it placed and other improprieties.  

Apex e-mailed Endh1b.com, seeking removal of the comments.  Instead of complying, Endh1b.com posted the e-mail, made further accusations against Apex, and solicited funds for a legal defense. The offending posts about Apex also appeared on other sites opposing the  H-1B visa program, including www.itgrunt.com  and www.guestworkerfraud.com.

Apex then went to court, seeking a preliminary injunction barring all three sites and the posters from posting additional "false, defamatory and/or negative statements related to Apex and/or its officers and directors" in advance of trial, and ordering the operator of Endh1b.com to assist in identifying the anonymous posters.

As reported in our Threats Database, on Dec. 23, 2009 the judge issued an order granting the preliminary injunction.  But the order went further, ordering Yahoo! and Facebook to help identify the posters, ordering Endh1b.com and the other sites to bar future posts and remove the offending posts, and, incredibly, ordering the hosts of all three sites to remove the sites from the web.

Two weeks later, Electronic Frontier Foundation senior staff attorney Kurt Opsahl wrote a blog post critizing the court's order, calling it "deeply dangerous and wrong."

The New Jersey court order is therefore wrong in at least four ways: (1) it creates a prior restraint that takes down too much speech, (2) it wrongly punishes websites for the speech of their commenters, (3) it wrongly requires the identification of anonymous speakers without sufficient opportunity to challenge the disclosure, and (4) it wrongly enlists out-of-jurisdiction upstream providers who did not act in concert with the websites in taking down speech. We hope the parties and the upstream and domain name hosts involved will seek to overturn it. 

Vivek Wadhwa, a visiting scholar at UC-Berkeley, Director of Research for the Center for Entrepreneurship and Research Commercialization at Duke University, and Senior Research Associate for the Labor and Worklife Program at Harvard Law School, responded to Opsahl's post in TechCrunch.

In a post titled, "How The EFF Lost Its Way By Defending Hate Mongers And Tunnel Rats," Wadhwa criticized Opsahl for disregarding what Wadhwa said was the virulant racism and xenophobia on the Endh1b.com, itgrunt.com  and guestworkerfraud.com sites.

You can debate the merits of the EFF stance from a legal standpoint. But the EFF cannot function in a contextual vacuum.  I am certain its employees feel overworked and underpaid like those of many other non-profits.  But, by siding unwaveringly with some of the most hateful sites on the Internet and not even mentioning the nature of those sites, the EFF betrayed its charter of upholding justice.  A simple Google cache search would have easily shown Kurt and his colleagues that the sites in question were vitriolic.  By giving Tunnel Rat [the site owner's psydonym] a free pass, the EFF encouraged several major media outlets to echo its one-sided defense of the ability to talk about killing and hurting Indians and H-1B holders.  If people want to have a debate about whether H-1B visas are good for America, let’s have it.  But if the most spirited response they can muster is to threaten the lives of their opponents, they’ve already lost the debate.

That's when first-year Harvard law student Harry Zhou weighed in. Discussing the controversy on the  "JOLT Digest" blog of the Harvard Journal of Legal Technology in a post titled "Digest Comment: Determining the Proper Scope of Prior Restraints against Blogs in Defamation Cases," Zhou does a "on the one hand, on the other hand" analysis, but eventually concludes that the Apex order is proper because of the one-sided nature of the sites.

To conclude, a prior restraint should be able to reach beyond directly relevant materials to the extent that it serves the purpose of curbing immediate reputational harm. But a court should caution against expanding the scope of a prior restraint for values unrelated to the plaintiff’s claims. When determining the proper scope of a prior restraint against a blog, a court should consider: 1) whether the blog deals with a variety of topics, 2) whether the opinions expressed on the blog are diversified, 3) whether the blog owner directly contributed to the allegedly defamatory materials, and 4) whether a narrow removal would escalate instead of mitigate reputational harm. In Apex, the takedown was likely proper because it may have been the only effective way to temporarily stop the numerous anonymous users from spreading the allegedly defamatory information about Apex.

Wadhwa's post generated several hundred comments, while Zhou's generated only a few.

But as commenters to both of the posts pointed out, it's extremely dangerous to endorse courts ordering the shut-down of entire web sites based on allegations they contain defamatory information: which, after all, is the only legal claim that Apex made against the anti-H-1B web sites. 

It also is extremely disturbing that the blog posts endorse restricting speech on a important political issue: H-1B visa policies in particular, and American immigration policy in general. As the Supreme Court has held, "[t]he First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)).

As a practical matter, the culture of the Internet effectively negates any such effort at restricting content: when a federal court in California ordered the shutdown of the entire Wikileaks website in response to a claim by a Cayman Islands bank, the material just appeared elsewhere on the web. [The case was eventually dropped, and the order vacated.]  So an order such as the one issued against the anti-H-1B websites is likely to be ineffective, and to just result in the offending material becoming more prominent.

As a legal matter, the U.S. Supreme Court has held that even narrowly tailored prior restraints on speech are constitutionally suspect. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) ("prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights").

The Supreme Court has also consistently held -- perhaps most notoriously in the Skoie, Ill. Nazi march case (Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977)) and the flag-burning cases (Texas v. Johnson, 491 U.S. 397 (1989) and U.S. v. Eichman, 496 U.S. 310 (1990)) -- that offensive speech is entitled to protection under the First Amendment. 

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.  

U.S. v. Eichman, 496 U.S. at 318-19 (citations omitted).

In R. A. V. v. City of St. Paul, 505 U.S. 377 (1992), the court struck down a St. Paul, Minn. ordinance that specifically criminalized symbols and writing that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," saying that by protecting some categories and not others, the ordinance was  unconstitutionally content-based and overbroad. 

So, there is no "proper scope of prior restraints against blogs in defamation cases," at least not on the basis of the racism and bigotry that Wadhwa sees in the anti-H-1B visa sites, or on the grounds that the defamatory information may "pop up" elsewhere on the site, as Zhou seems to fear.

[F]reedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.
The ordinance as construed by the trial court [in this case] seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.

Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949) (internal citations omitted).

In these cases, the Supreme Court has reminded us of the true meaning of the First Amendment: except for a few, limited types of speech (obscenity, "fighting words"), it generally prohibits the government, including the courts, from restricting speech that offends someone.  In fact, the real purpose of the First Amendment is to allow such speech, especially when it offends someone.