Minor change: 2006/0208
Notes:

This letter was written in response to an Op-Ed piece by Prof. Eugene Volokh, defending the Kozinski decision, largely on the grounds that anti-abortion protesters have the same right to promote violence as civil-rights protesters in the 1960s.

Parts of my letter that were not published are italicized. Some (repetitive) unpublished references to this web site have been deleted.

4 Apr 2001

To the Editor of the "Wall Street Journal":

Prof. Eugene Volokh mistates the fundamental issue in Judge Alex Kozinski's appalling defense of the "Nuremberg Files" terrorists ("Free Speech Is Nothing to Fear," Op-Ed, Tuesday 3 April 2001). It is not inflammatory language (protected in peacetime by the First Amendment), but rather "invasion of privacy" -- the publication not just of doctors' names and business addresses, but also home addresses, descriptions and registration numbers of cars, names of spouses and even of children (!!!!).

[Note: Although the following material was dropped from the printed version, it may have helped convince the editor that my letter was serious and worth printing. My original letter contained a confidential link (not for publication) to a temporary un-sanitized page with actual personal information.]

To understand the issues involved, check the sample page I downloaded from the "Nuremberg Files" site just before it was taken down. My sanitized version is posted at URL
http://www.cyberussr.com/adg/hitlist-san/Xxxxxxxx.htm
with my commentary at URL
http://www.cyberussr.com/adg/hitlist-san/index.html

[...]

Will fascist fellow-travellers have to see the names of their own wives and children on public death lists before they will recognize the common-sense distinction between public debate and personal terror? For many years US courts have punished "invasion of privacy" without stifling First Amendment debate.

It is time to recognize that "war cases make bad law." Just as the US Supreme Court's upholding of NYC rent control, justifiable as a WW II emergency, was a disastrously unsuitable precedent for peacetime, so the Warren Court's justifiable zeal against the Jim Crow system led them to the brink of error in "Claiborne Hardware" (1963). Given what Argentina has taught us since then about the danger of death squads, we need the Rehnquist Court (or, failing them, Congress under emergency powers) to pull us back from catastrophe.

--Hugo S. Cunningham
Boston, MA