WASHINGTON, DC, February 9, 1999 --  

MindSpring's decision to pull the plug on the controversial Nuremberg Files web site is a disturbing milestone in the commercial evolution of the Internet. The company pulled the plug on the anti-abortion site on Friday, just days after a federal jury in Oregon awarded $107 million in damages to abortion workers who felt threatened by the site.^1,2

The court has not ruled on the plaintiffs' request that the site be shut down-that decision has yet to be made by Judge Robert E. Jones-but MindSpring's premature action has made this a moot point for the time being.³ The company said it made the decision due to violations of their "appropriate use policy" which says "threats of bodily harm or destruction of property are always prohibited."^4,5

The court ruling effectively gave MindSpring the legal cover it needed to terminate its contract to host the site. The court ruled that the site violated the 1994 Freedom of Access to Clinic Entrances Act, which makes it a crime to threaten force against anyone seeking or providing abortion services.⁶ MindSpring could therefore use the ruling as legal evidence that the site had violated its policy against using threatening language.

While MindSpring's action is so far within its legal rights, a more principled course would have been for it to continue hosting the site until ordered by the courts to do otherwise. MindSpring has shown a deplorable lack of commitment to free speech on the Internet. While the court did rule that the site threatened violence, this was the weakest part of the plaintiffs' case. The site featured mock wanted posters with the names of abortionists, but did not explicitly advocate violence. The absence of explicit threatening language nearly doomed the case. This changed, however, when the Judge instructed the jury they could find the site threatening even if that wasn't the intent of the author. Jones instructed the jury to find the site threatening if a reasonable person should have "foreseen" that the pages would cause fear.⁷ This loose standard was applied despite opposition from the pro-abortion rights American Civil Liberties Union.

Now, I'm not going to argue that the extremists who put together the site didn't want to make their opponents uncomfortable. This is absolutely the case, given that the site crossed out the names of murdered abortion clinic workers and provided links to web sites where the murder of abortionists is explicitly advocated.⁸ But given the extremely polarized climate of the abortion debate, as well as a history of violent attacks by some activists, it would be reasonable for people working in the abortion industry to perceive any personal mention as a thinly veiled threat. The Oregon ruling, therefore, eliminates the right of any anti-abortion activist to even mention the name of a person working in the industry. That's the most outrageously restrictive interpretation of the First Amendment that I've ever heard.

The Judge's implementation of such a weak standard of proof will certainly be a factor in the case's appeal-and will likely lead to its reversal. But this will do nothing to change MindSpring's anti-speech pre-emptive strike.

To be fair to MindSpring, the company's actions probably have nothing to do with politics. They are an image-conscious company seeking to make money from an increasingly mainstream Internet market. It is this increasingly mainstream focus that is part of the problem. Long gone are the days when the web was dominated by a hodgepodge of unusual views and interests. As more and more people sign on, the bulk of web increasingly resembles the moderate and mundane material long available from television and radio. By reaching out to this sector of the Internet community at the expense of its more zealous and committed members, MindSpring betrays the fundamental nature of the Internet.

The web has long been a hotbed of free-speech advocacy, and rightfully so. The Web allows people to communicate with the entire world-no matter how unusual, extreme or unpopular their opinions. Unrestricted access to unique information is exactly what makes the Internet so fascinating. While the Nuremberg Files' authors will certainly be able to find another host, MindSpring's action cannot be dismissed, and must not be excused by anybody who cares about free speech on the Internet.

MindSpring, after all, is not just any private company. Its entire business revolves around providing customers access to information, as well as making their information available for distribution to others. Now that it has crossed the line from providing access to policing content, it can not be trusted again.

Just as free-speech advocates teamed up on the Internet to defeat the Communications Decency Act, they should band together today to boycott MindSpring. A major obstacle, however, is the extreme unpopularity of the silenced web site. Many people are reluctant to defend the anti-abortion crowd's freedom of speech-fearing that this defense will be confused with support for the violent acts. The Internet activists of days gone by would never let this faze them. Have things changed so much? The community's lackluster response to MindSpring's acquiescence may prove to be the death knell of the Internet's free and robust culture of ideas.

 Notes:

1. The Associated Press, Internet Provider Closes Web Site, February 6, 1999
2. The Washington Post, Doctors Win Suit Over Antiabortion Web Site, February 3, 1999
3. Ibid.
4. The Associated Press, Ibid.
5. MindSpring Acceptable Use Policy, February 7, 1999
6. The New York Times, Free Speech Debated in Suit Over Anti-Abortion Web Site, January 13, 1999
7. ACLU Press Release, January 12, 1999
8. The New York Times, Ibid.