A Fact-Check for the Four-Color World

Wednesday, September 06, 2006

She-Hulk #8: DestroyAllWarriors.com, Part 2

She-Hulk #8
Writer: Dan Slott
Artist: Paul Smith

The Issue:

At the heart of the controversy in She-Hulk #8 is a website called DestroyAllWarriors.com:

As Justice says, the person behind the site has been 'outing' members of the New Warriors, exposing their real names and addresses one at a time. The site also includes pictures of members, indicating who is alive and who is dead:

(I find myself wondering when the Warriors all posed for face-front headshots.)

Apparently, those whose names and addresses were given out subsequently suffered violent attacks. Hindsight Lad had a message burned into his lawn, Debrii's car was torched, and Timeslip was attacked by a mob.

So Rage and Justice come to She-Hulk for legal assistance in having the website shut down. (And they appear to be suffering from a serious case of the stupids, as they come in costume, which leads to them getting harrassed every time they show their faces in public.)

The Background:

Slott's inspiration for this plot element is undoubtedly The Nuremberg Files, an anti-abortion website that, during the 1990s, posted the names and home addresses of abortion doctors, as well as other personal information (such as the names of family members).

Perhaps the website's most infamous and memorable features were its 'Wanted'-style posters of certain abortion doctors, and its list of names with the names of killed doctors struck out, and the names of injured doctors colored grey.

Planned Parenthood sued in federal court in Oregon, and won a $107 million judgment against the defendants, because the jury determined that the website's content constituted true threats. An injunction was issued, forcing the removal of the website's 'Wanted'-style posters. The defendants appealed, and a 3-judge panel of the Ninth Circuit Court of Appeals reversed the verdict (in a decision written by Judge Kozinski, who is a favorite of mine). Planned Parenthood appealed that, and the full Ninth Circuit Court reversed again in a 6-5 split decision, reinstating the verdict but reducing the award to $500,000 (completely throwing out the $106+ million in punitive damages). The Supreme Court declined to hear a further appeal.

(If you're interested in reading either of the above-linked cases, a word of warning. The first one is fairly short and readable, and includes a good description of the offending posters, but the latter is rather lengthy.)

The Law:

What we have here is a prime question of free speech and First Amendment protection. The Nuremberg Files case involved state and federal laws that prohibit threatening statements, and we'll assume that similar laws apply here.

For the record, in rereading the issue since my last post, it's actually not entirely clear from the courtroom scenes that She-Hulk is attacking the website on the grounds that it is making illegal threats. Given the odd testimony and questioning, it almost appears as though Jen's strategy is to claim that the website shouldn't be allowed to reveal secret identities. It would certainly help to explain why Iron Man shows up to talk about secret identities, yet nobody makes a peep about threats.

Maybe Jen was relying on the "secret identity shield laws" referenced in She-Hulk (Vol. 1) #2; but such laws would have to do with courtroom conduct, not real-world reporting. Conceivably, if secret identities were deemed to be classified information (a la Valerie Plame), then 'outing' a superhero could be outlawed, but that doesn't comport with the ongoing Superhuman Registration Act controversy. And judging from Bendis' "Out" storyline in Daredevil, it's safe to say that the New York of the Marvel Universe doesn't have any laws prohibiting the reporting of secret identities.

So regardless of She-Hulk's tactics, the best way of attacking the DestroyAllWarriors.com website would be to allege that it is engaging in illegal "true threats."

Here we hit an unfortunately snag in our analysis, as we're not exposed to very much of the website's content. We know only the following:

1) It is called DestroyAllWarriors.com
2) It has posted the secret identities and home addresses of New Warriors.
3) It has posted news footage about attacks on 'outed' New Warriors.
4) It features the photo 'deadpool' seen above.

Given that Hindsight Lad subsequently states that he didn't intend for anyone to get hurt, I'd like to assume that he didn't put any explicit threats or calls for violence on his website. (The Nuremberg Files didn't have any direct threats either.) However, calling the website "DestroyAllWarriors" has a distinctly threatening tone that doesn't comport with Hindsight's proffered motivation.

Admittedly, as I stated in the comment section of my last post, I can't make heads or tails of Hindsight's motivation. He apparently posted his own name and address, got attacked, and continued posting his friends' names and addresses. He seems to suggest that his hope was to scare the Warriors into giving up their costumed identities...but given that he'd just exposed their real ones, I'm not sure how he expected them to avoid further retaliation.

The core question is not whether the target was frightened, or whether the defendant wanted his target to be frightened. It is whether "a reasonable person making the statement would foresee that the statement would be interpreted by those to whom it is communicated as a serious expression of an intent to bodily harm or assault."

If we treated the 9th Circuit majority opinion as absolute binding law, that would tend to support the argument that DestroyAllWarriors.com contains illegal "true threats." That court's decision relied largely on the posters and stricken names that have functional equivalents on this website. Well, sort of. From what we're shown, the only parallel to the 'stricken names' is that Speedball, Microbe, Namorita, and Night Thrasher are labelled as "Dead." All four of them were killed (or believed killed) in Stamford, prior to the creation of Hindsight's website, and definitely not as a result of the website's content. Debrii, despite being the victim of arson, is merely listed as "Alive." On the other hand, specifically identifying individuals as "Alive"

(There's also a minor issue here of standing, because Rage and Justice are the ones challenging the website, but we don't see their photos or any other information about them on the website. For the sake of argument though, we'll just assume that it's there, and simply not shown on-panel.)

Furthermore, even if there's not a direct association between the website's creator and the violent actors, we still have instances of violence that followed certain information being posted. Plus, there is the call to violence in the website's own title and URL. All of this could support a reasonable belief on the part of the New Warriors that the website is expressing a serious intention to cause them harm.

But the decision's realiability is less than absolute. The court did not say that the posters on the Nuremberg files were true threats; the court said that that was a question for a jury to decide. Another jury might not make the same decision about DestroyAllWarriors.com, and it certainly wouldn't be obligated to do so.

The 9th Circuit decision was also, as I said earlier, a 6-5 split decision. The same court could review the DestroyAllWarriors.com case, and if only a single majority judge found sufficient reason to switch sides, then the court would have declared that the website was Constitutionally protected. We're dealing with an area of the law that has a lot of disagreement among judges themselves.

Plus, while it may be the most on-point case, the Nuremberg Files decision is not binding law in a New York court. Its judges may have decided the Nuremberg case differently, and may say that DestroyAllWarriors.com is protected speech.

By contrast, in his dissent, Judge Kozinski says "A true threat warns of violence or other harm that the speaker controls." Under Kozinski's application of the law, the names and addresses and photos and news footage of the Warriors would all be protected speech, because none of the violence is actually flowing from Hindsight himself. You don't punish the speaker (especially in a financial way) for the offenses of other people the speaker doesn't control. Only the 'DestroyAllWarriors.com' title would be problematic, as it might be a "true threat" by Hindsight, depending on the context of the rest of the site. A court following Kozinski might issue an injunction against the title and URL, but would probably allow the rest of the site to remain online. And that wouldn't be much of a win for She-Hulk, because it's not the website's name that her clients are concerned about.

Now She-Hulk's chances of winning a temporary injunction, and shutting the website down pending a later hearing, are a little better given the contentious nature of this claim. But that's not where the meat of this controversy is; Rage and Justice aren't interested in merely delaying the website's revelations, they want the site shut down permanently.

So in the end, all of this means that the answer to the question "Is DestroyAllWarriors.com a legal website?" is a big and longwinded "It depends." A court that follows the 9th Circuit majority might be inclined to allow a jury to shut the site down. A court following Kozinski (who I, personally, favor) would leave it be.

That's my take. Any thoughts? Opinions? Rebuttals?