[*]J.D. Candidate, University of Florida Levin College of Law, May 2001; B.A., University of North Carolina at Chapel Hill, 1997. This article is dedicated to Kenneth and Faye Weissblum for their love, support, and understanding. The author would like to thank Professor Bill Chamberlin and the members of the Fall 1999 First Amendment Theory seminar for their insightful comments, criticisms, and feedback.

[1] See Angie Cannon et al., Why?, U.S. NEWS & WORLD REPORT, May 3, 1999, at 16, 17.

[2] See id.

[3] See id.

[4] See Eric Pooley, Portrait of a Deadly Bond, TIME, May 10, 1999, at 26, 26.

[5] See id.

[6] See Steven Levy, Loitering on the Dark Side, NEWSWEEK, May 3, 1999, at 39, 39. Levy notes that "cyberspace offers unlimited opportunity to network with otherwise unreachable creepy people."

[7] See Tammerlin Drummond, Battling the Columbine Copycats, TIME, May 10, 1999, at 29, 29.

[8] See id.

[9] 395 U.S. 444 (1969); see also discussion infra Part II.

[10] See Cass R. Sunstein, Constitutional Caution, 1996 U. CHI. LEGAL F. 361, 366 (1996); see also discussion infra Part II.

[11] See Sunstein, supra note 10, at 366, 370.

[12] See SOFTWARE PUBLISHERS ASSOCIATION, ONLINE LAW: THE SPA'S LEGAL GUIDE TO DOING BUSINESS ON THE INTERNET 305 (Thomas J. Smedinghoff ed., 1996). Examples of these activities are e-mail communications and online publishing.

[13] See id.; see also Schenck v. United States, 249 U.S. 47, 52 (1919).

[14] See Hess v. Indiana, 414 U.S. 105, 109 (1973).

[15] 128 F.3d 233, 246 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998); see discussion infra Part V.

[16] See SOFTWARE PUBLISHERS ASSOCIATION, supra note 12, at 308 (citing Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969)).

[17] Id.

[18] See id.

[19] See Reno v. ACLU, 521 U.S. 844, 849 (1997).

[20] See id. at 850.

[21] See id. at 850-51.

[22] See id. at 851.

[23] Adam R. Kegley, Note, Regulation of the Internet: The Application of Established Constitutional Law to Dangerous Electronic Communication, 85 KY. L.J. 997, 1019 (1997). In his analysis, Kegley relied on the district court opinion from Rice v. Paladin Enterprises, Inc. Shortly after publication, the Fourth Circuit reversed the case. Thus, Rice is examined again in this comment in Part V.

[24] 249 U.S. 47 (1919).

[25] 414 U.S. 105 (1973).

[26] 395 U.S. 444 (1969).

[27] See Davidson v. Time Warner, Inc., No. CIV.A.V-94-006, 1997 WL 405907 at *1 (S.D. Tex. March 31, 1997); Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989); Byers v. Edmondson, 712 So. 2d 681 (La. Ct. App. 1998).

[28] 128 F.3d 233, 246 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[29] Schenck, 249 U.S. at 51.

[30] See id. at 52.

[31] Brandenburg, 395 U.S. at 447.

[32] Hess, 414 U.S. at 108-09.

[33] Schenck, 249 U.S. at 52.

[34] See id. at 48-49. The charges against Schenck were that he conspired to violate the Espionage Act "by causing and attempting to cause insubordination . . . in the military and naval forces of the United States, when the United States was at war with the German Empire . . . [and] the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service . . . a document set forth and alleged to be calculated to cause such insubordination and obstruction."

[35] See id. at 49-50.

[36] See id. at 51.

[37] Id.

[38] 274 U.S. 357, 371 (1927).

[39] See id.

[40] 341 U.S. 494, 510 (1951).

[41] Id. (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)).

[42] 395 U.S. 444, 449 (1969).

[43] See Rice v. Paladin Enters., Inc., 128 F.3d 233, 243 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[44] Brandenburg, 395 U.S. at 444-45 (citing OHIO REV. CODE ANN. § 2923.13).

[45] Id. at 445-47.

[46] See id. at 445.

[47] Id. at 447. The court noted that the teaching "of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action." Id. at 448 (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961)).

[48] Id. at 448-49.

[49] 414 U.S. 105 (1973).

[50] See id. at 105. The disorderly conduct statute read as follows: "Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct." Id. at 106 n.1 (citing IND. CODE § 35-27-2-1).

[51] Id. at 106-07.

[52] Id. at 108-09.

[53] See Sunstein, supra note 10, at 370; see also discussion infra Part III.

[54] See Sunstein, supra note 10, at 370; Kegley, supra note 23, at 1019.

[55] One exception is United States v. Progressive, Inc., 467 F. Supp. 990, 1000 (W.D. Wis. 1979). In Progressive, the government sought an injunction against the publishers of a magazine which sought to publish data in an article about the making of the hydrogen bomb. The United States District Court for the Western District of Wisconsin concluded that the circumstances fell "within the extremely narrow recognized area, involving national security, in which a prior restraint on publication is appropriate." Therefore, an injunction did not infringe upon the publisher's rights.

[56] See Byers v. Edmondson, 712 So. 2d 681 (La. Ct. App. 1998).

[57] See Davidson v. Time Warner, Inc., No. CIV.A.V-94-006, 1997 WL 405907, at *1 (S.D. Tex. March 31, 1997); Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991); Walt Disney Prods., Inc. v. Shannon, 276 S.E.2d 580 (Ga. 1981); Byers, 712 So. 2d at 692.

[58] See Waller, 763 F. Supp. at 1144; Davidson, 1997 WL 405907 at *1; Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989); Walt Disney Prods., 276 S.E.2d at 583; Byers, 712 So. 2d at 692.

[59] Waller, 763 F. Supp. 1144, 1145-46. The lyrics were as follows: "Ah know people / You really know where it's at / You got it / Why try, why try / Get the gun and try it / Shoot, shoot, shoot." Id. at 1146 n.2.

[60] See also McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194-96 (Cal. Ct. App. 1988) (concluding, on nearly identical facts as Waller, that imposition of civil damages would violate the First Amendment).

[61] Waller, 763 F. Supp. at 1150.

[62] See id. at 1151.

[63] See id.

[64] Id.

[65] Davidson, 1997 WL 405907 at *1, *20-21.

[66] See id. at *1. One song at issue contained the following lyrics: "I got a nine millimeter Glock pistol / I'm ready to get with you at the trip of the whistle / So make your move and act like you wanna flip / I fired 13 shots and popped another clip / My brain locks, my Glock's like a f-kin mop / The more I shot, the more mothaf-ka's dropped / And even cops got shot when they rolled up." Id. at *1 n.4 (censorship of expletives provided by the court).

[67] See id. at *20.

[68] Id. at *21 (citing Hess v. Indiana, 414 U.S. 105, 108 (1973)).

[69] See id. at *20 (citing Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991)); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989); McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194-96 (Cal. Ct. App. 1988).

[70] See Davidson, 1997 WL 405907 at *21.

[71] See id. (explaining that the group was "necessarily too large to remove First Amendment protection from the album: to hold otherwise would remove constitutional protection from speech directed to marginalized groups").

[72] Yakubowicz, 536 N.E.2d at 1068 (Mass. 1989). Yakubowicz claimed that Paramount "knew of violence and threats of violence perpetrated by members of 'gangs' attending showings of the film in Boston and in California, and that [his son's] death was causally related to [Paramount's] exhibition of the film to Michael Barrett (the assailant)."

[73] Id.

[74] Id. at 1071.

[75] Id. (citing McCollum v. CBS, Inc., 249 Cal. Rptr. 187, 194-96 (Cal. Ct. App. 1988)).

[76] 276 S.E.2d 580, 581 (Ga. 1981).

[77] See id.

[78] See id.

[79] See id. at 582 n.2.

[80] See id. at 583.

[81] Id.

[82] See id.

[83] See id.

[84] See id.

[85] See United States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990), cert. denied, 498 U.S. 828 (1990); United States v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990); United States v. Barnett, 667 F.2d 835 (9th Cir. 1982); United States v. Buttorff, 572 F.2d 619 (8th Cir. 1978), cert. denied, 437 U.S. 906 (1978).

[86] Buttorff, 572 F.2d at 621.

[87] See id. at 622.

[88] See id. at 622-23. The defendants instructed the attendees "to divide their yearly salary by 750 to determine the number of claimed allowances necessary to stop withholding."

[89] Id. at 624.

[90] See id. at 623. "Each was associated with the tax evasion movement; each opposed the graduated income tax and wanted to bring about its demise; and each, by speaking to large groups of persons, sought to advance his ideas and encourage others to evade income taxes."

[91] United States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990), cert. denied, 498 U.S. 828 (1990).

[92] See id. at 1276. The Society published advertisements in newspapers which told the readers that, among other things, the payment of income taxes was voluntary. See id. at 1276-77.

[93] Id. at 1277.

[94] See id.

[95] See id. at 1277-78.

[96] See id. at 1278.

[97] 667 F.2d 835, 838 (9th Cir. 1982). These documents included "Synthesis of PCP/Angel Dust," "Synthetic Routes to Amphetamines," and "A Feasible Synthesis of Methaqualone Hydrochloride."

[98] See id. at 837.

[99] See id. at 842.

[100] See id. at 843.

[101] See id.

[102] 896 F.2d 1183 (9th Cir. 1990).

[103] See id. at 1185.

[104] See id. at 1184.

[105] See id. at 1185.

[106] See id. at 1186. The court alluded to cases in which computer programs were classified as literary works and works of authorship. See id. at 1185 (citing Apple Computer v. Formula Int'l, Inc., 725 F.2d 521 (9th Cir. 1984)).

[107] See id. (citing United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985)).

[108] 128 F.3d 233, 242 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). "In soliciting, preparing for, and committing [the] murders, [the assailant] meticulously followed countless of Hit Man's 130 pages of detailed factual instructions on how to murder and to become a professional killer."

[109] See id. at 241.

[110] See id. at 239.

[111] See id. at 239-41. "Hit Man specifically instructs its audience of killers to shoot the victim through the eyes if possible: At least three shots should be fired to insure quick and sure death . . . . [A]im for the head-preferably the eye sockets if you are a sharpshooter."

[112] Id. at 261. The court also provides a chapter-by-chapter synopsis of Hit Man, explaining the contents of the book in detail. See id. at 257-62.

[113] See id. at 239.

[114] See id.

[115] See id. at 239-40.

[116] See Rice v. Paladin Enters., Inc., 940 F. Supp. 836, 842 (D. Md. 1996).

[117] See id. at 845.

[118] Id.

[119] See id. at 846.

[120] Id.

[121] See id. at 847.

[122] See id. "Nothing in the book says 'go out and commit murder now!' Instead, the book seems to say, in so many words, 'if you want to be a hit man this is what you need to do.' "

[123] See id.

[124] See id.

[125] See id. at 848.

[126] See id. The advertisement in Paladin's catalog said, "for academic study only" and the book's disclaimer said, "[for] information purposes only."

[127] Id.

[128] Id. at 848-49.

[129] Id. at 849.

[130] Id.

[131] See Rice v. Paladin Enters., Inc., 128 F.3d 233, 243 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[132] Id. at 244.

[133] Id. at 245-46. In Barnett, the Ninth Circuit held that the First Amendment is not a defense for publishers against charges of aiding and abetting a crime through the publication and distribution of instructions on how to make illegal drugs. Barnett, 667 F.2d 835, 843 (9th Cir. 1982); see also discussion infra Part IV.

[134] See Rice, 128 F.3d at 246. Brandenburg posed "little obstacle to the punishment of speech that constitutes criminal aiding and abetting, because culpability in such cases is premised, not on defendants' 'advocacy' of criminal conduct, but on defendants' successful efforts to assist others by detailing them the means of accomplishing the crimes."

[135] Id. at 255.

[136] See id. at 256.

[137] See id. at 262.

[138] See id.

[139] See id. at 263.

[140] See RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 10, at 10-63 (1998). Previous Supreme Court rulings dealing with the advocacy of violence, incitement, symbolic speech, and graphic protest have involved speech regarding political or social issues.

[141] Rice v. Paladin Enters., Inc., 128 F.3d 233, 263 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[142] See id. at 264 (citing Brandenburg v. Ohio, 395 U.S. 444, 448 (1969)).

[143] See id.

[144] 521 U.S. 844, 852 (1997).

[145] See id. at 849.

[146] See id.

[147] Id.

[148] See id. at 852.

[149] See id.

[150] See id.

[151] See id. Examples of search engines include Yahoo, Hotbot, and AltaVista.

[152] Id. at 853.

[153] See id. These publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.

[154] Hess v. Indiana, 414 U.S. 105, 108 (1973).

[155] Davidson v. Time Warner, Inc., No. CIV.A.V-94-006, 1997 WL 405907, at *21 (S.D. Tex. Mar. 31, 1997). The court referred to the plaintiffs' argument that the directed requirement was fulfilled by the fact that Time Warner directed the music to a violent group in general.

[156] Id. at *20 (citing Hess, 414 U.S. at 108).

[157] See Reno, 521 U.S. at 850.

[158] Waller v. Osbourne, 763 F. Supp. 1144, 1150 (M.D. Ga. 1991).

[159] Davidson, 1997 WL 405907, at *21.

[160] Id.

[161] Reno, 521 U.S. at 850. According to the Court, there were 9,400,000 computers hosting Internet sites to serve 40 million users in 1996.

[162] See Davidson, 1997 WL 405907, at *20.

[163] Rice v. Paladin Enters., Inc., 128 F.3d 233, 264-65 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). "[O]ne obviously can prepare, and even steel, another to violent action not only through the dissident 'call to violence,' but also through speech, such as instruction in the methods of terror or other crime, that does not even remotely resemble advocacy, in either form or purpose."

[164] See Reno, 521 U.S. at 854.

[165] Davidson, 1997 WL 405907, at *20.

[166] See Reno, 521 U.S. at 854.

[167] See Davidson, 1997 WL 405907, at *20.

[168] Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071 (Mass. 1989) (expressing the notion that it is not acceptable in our society to limit and restrict creativity in order to avoid affecting emotionally troubled individuals).

[169] Rice v. Paladin Enters., Inc., 128 F.3d 233, 256 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[170] See SMOLLA, supra note 140, at 10-41.

[171] See Rice, 128 F.3d at 255.

[172] See id. To receive a copy of Hit Man, the prospective reader has to go through a number of steps. First, the reader obtains a copy of Paladin's catalogue by completing a form contained in an advertisement from a magazine such as Soldier of Fortune. After receiving the catalogue, the reader must find the desired book and then mail an order form to complete the process.

[173] See id.

[174] See Reno v. ACLU, 521 U.S. 844, 852 (1997).

[175] See id. at 850-51, 854.

[176] See id. at 851, 854.

[177] See Rice v. Paladin Enters., Inc., 128 F.3d 233, 244 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998).

[178] Id.

[179] Id. at 245; United States v. Barnett, 667 F.2d 835, 838 (9th Cir. 1982).

[180] Barnett, 667 F.2d at 844.

[181] See Reno, 521 U.S. at 852.

[182] Barnett, 667 F.2d at 843.

[183] See United States v. Buttorff, 572 F.2d 619, 623 (8th Cir. 1978), cert. denied, 437 U.S. 906 (1978).

[184] See id. at 623-24.

[185] United States v. Mendelsohn, 896 F.2d 1183, 1186 (9th Cir. 1990).

[186] See id. at 1185.

[187] See Reno v. ACLU, 521 U.S. 844, 854 (1997).

[188] Rice v. Paladin Enters., Inc., 128 F.3d 233, 254 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998). The disclaimer said: "Learn how a pro gets assignments, creates a false identity, makes a disposable silencer, leaves the scene without a trace, watches his mark unobserved and more. Feral reveals how to get in, do the job and get out without getting caught. For academic study only!"

[189] See id.

[190] See Buttorff, 572 F.2d at 623.

[191] See Reno, 521 U.S. at 854.

[192] Mendelsohn, 896 F.2d at 1185.

[193] Id. at 1186.

[194] See Reno, 521 U.S. at 852.

[195] See Rice, 128 F.3d at 247.

[196] See id.

[197] Id. at 248. The court cited to Barnett, Mendelsohn, and Buttorff in its discussion.

[198] Id. (emphasis added).

[199] See Kegley, supra note 23, at 1019.

[200] Sunstein, supra note 10, at 367. According to Sunstein, the questions for constitutional lawyers are whether the probability merits the restriction of such speech, whether these restrictions would be acceptable under the First Amendment, and whether preexisting law bears on the current issue. See id. at 368.

[201] See id. at 370.

[202] See id. at 371.

[203] Id. at 372.

[204] See id. at 370-71.

[205] See id.

[206] Id. at 371.

[207] See id.

[208] See JONATHAN WALLACE & MARK MANGAN, SEX, LAWS, AND CYBERSPACE 160 (1996). "Sunstein wants to have it both ways; bomb manuals are evil because they advocate violence, but may be banned because they offer only information, not advocacy."

[209] See id.

[210] Id.

[211] See David R. Dow, The Moral Failure of the Clear and Present Danger Test, 6 WM. & MARY BILL OF RTS. J. 733, 735 (1998); see also Theresa J. Pulley Radwan, How Imminent is Imminent?: The Imminent Danger Test Applied to Murder Manuals, 8 SETON HALL CONST L.J. 47, 73 (1997). "When a publisher distributes materials which are so specific in detailing how to commit a crime, it is difficult to imagine that the publisher did not intend or know that such a crime would indeed be committed. Under the laws as written, this intent is probably insufficient to subject the publishers to criminal liability for the crime. However, the publisher's knowledge of the potential consequences of their actions should be sufficient to subject them to liability for causes of action with a lower level of intent."

[212] Dow, supra note 211, at 735.

[213] See id.

[214] See id.

[215] See CURTIS E.A. KARNOW, FUTURE CODES: ESSAYS IN ADVANCED COMPUTER TECHNOLOGY AND THE LAW 238 (1997).

[216] See id.

[217] See id.

[218] See id.

[219] See id.

[220] See id.

[221] Id. at 239.