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Anti-abortion case raises First Amendment questions

June 3, 2002

I have been reading the federal appeals court decision in the Nuremberg Files case, trying to figure out which side I’m on. Normally I come down on the free-speech side of any First Amendment case, but this time I believe the 9th Circuit Appeals Court was right when it ruled 6-5 for Planned Parenthood against militant anti-abortionists, the American Coalition of Life Activists. This is a very hard case. It is headed for the Supreme Court, where (I think) the free-speech argument of the anti-abortionists is likely to prevail.The Nuremberg Files Web site denounces abortion doctors as murderers bound for hell. The site shows images of these doctors, giving their names and addresses. Sometimes the site gives the Social Security numbers and license plate numbers of doctors, along with their home phone numbers and the names and ages of their children.Sponsors of the site have also printed Wild West-style “wanted” posters showing abortion doctors. Three doctors murdered by anti-abortion radicals are in the posters, too, marked in black to indicate they are no longer wanted. Abortion-rights advocates argue that this implicitly identifies the other abortion doctors as the next targets. However, the site and the posters never call for violence, only for the doctors to be brought under surveillance and “brought to justice” in Nuremberg-like trials for crimes against humanity.

Is this obnoxious, coercive and intimidating political commentary (all allowable under the First Amendment), or a series of true threats and therefore not allowable? A three-judge federal panel overturned a jury verdict in a civil suit against the anti-abortionists, ruling that the Nuremberg site had no explicit threats of harm. Now the full court has ruled the other way, saying in effect that the “wanted” posters acted as true death threats, even without explicitly threatening language.

One problem with the court ruling is a similar 1982 Supreme Court case that went in the free-speech direction, NAACP v. Claiborne Hardware. To enforce a civil rights boycott starting in 1966 against white-owned stores in Mississippi, Charles Evers and other black activists took names of shoppers and published them in a newspaper. (In the same vein, the Nuremberg site names mothers who’ve had abortions and says it’s training “abortioncams” at “baby butchertoriums.”) Shots were fired into a shopper’s home, and there were several assaults.

In 1969, three years after the violent incidents, Evers said that if blacks continued to shop at the stores, “we’re gonna break your damn neck.” The Supreme Court said Evers’ statements were constitutionally protected because no specific threat had been authorized. UCLA law professor Eugene Volokh says he isn’t sure the high court was right in Claiborne, “but I am sure that once this has been found to be constitutionally protected when done by the civil rights movement, the same has to be protected when done by the pro-life movement.”

A larger problem is that the 9th Circuit decision opens a dangerous door by allowing implied or perceived threats to count as heavily as explicit ones. If targeted groups can define hostile speech as a threat, not much will be left of the First Amendment protection of free speech. Will judges and juries now have discretion to punish unpopular activists by inferring dire threats from the normal give-and-take of heated debate? If so, the temptation to litigate opposition groups out of existence will grow. In the Planned Parenthood case, the original jury verdict imposed $107 million in damages against the anti-abortionists, a crushing burden, particularly when the definition of “threat” is being stretched beyond what the law says.

The anti-abortionists seem to have a stronger case in legal terms and in the Claiborne precedent, but Planned Parenthood has a strong argument on the facts. Despite the absence of explicit language, the “wanted” posters, I think, do add up to a death threat. Three doctors on the posters were dead already. The rest began wearing bulletproof vests and worrying whether their children would be attacked. If you think serious threats always come in explicit language, then you must believe the horse’s-head-in-the-bed from “The Godfather” wasn’t a serious threat either, because no explicit words from the mob were said.

This decision leaves a lot of people leaning in both directions at once, toward free speech but away from a narrow and dated legal definition of threat. Slate editor Dahlia Lithwick argued that the 9th Circuit “invented some astonishing new doctrine” in the case but also said, “Even if the Planned Parenthood opinion stands on shaky legal ground, it somehow still feels intuitively right.” Can the Supreme Court finesse this one by inventing a more realistic but tight definition of “threat”? Let’s hope so.

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