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110 Penn St. L. Rev. 579 (2005-2006)
Intimidation and the Internet

handle is hein.journals/dlr110 and id is 589 raw text is: Intimidation and the Internet

William Funk*
Sticks and stones may break my bones, but names will never hurt
I.   Introduction
In  2002,   in  the   case   of  Planned    Parenthood   of  the
Columbia/Willamette, Inc. v. American Coalition of Life Activists,1 the
Ninth Circuit Court of Appeals, sitting en banc, upheld the district
court's decision that the American Coalition of Life Activists, and
several individuals associated with it, had violated the Freedom of
Access to Clinics Entrances Act (FACE)2 by maintaining a website
entitled the Nuremberg Files.3 In upholding the district court's decision,
the circuit court also upheld the damages awarded against the defendants,
as well as the injunction against the defendants' maintenance of the
Nuremberg Files website.4 A major issue in the case was whether it was
a violation of the First Amendment to restrain the defendants from
maintaining this website.5 Of the eleven judges on the panel, six found
that the website was not protected speech under the First Amendment,
while five found that it was.6 Commentary on the decision in both the
press and the academy was generally negative, viewing the decision as a
setback for First Amendment values.'
This article argues that while the Nuremberg Files site was not
protected by the First Amendment, the reasons given by the judges in the
majority on the Ninth Circuit were not the correct reasons for that
* Professor of Law, Lewis & Clark Law School; Fulbright Senior Scholar,
University of Heidelberg (2004-05).
1. 290 F.3d 1058 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003).
2. Freedom of Access to Clinics Entrances Act, 18 U.S.C. § 248.
3. Planned Parenthood, 290 F.3d at 1088.
4. Id. at 1088.
5. Id. at 1070-71.
6. Id. at 1059.
7. See, e.g., The Volokh Conspiracy, http://volokh.com/2002_05-12_volokh-
archive.html; Dahlia Lithwick, Poster Children, http://www.slate.com/id/2066130/.

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