Wanted: More Decisions Like This One
Two years ago, we reported on the decision of a federal district court in Oregon which held certain pro-life individuals liable for publishing posters which gave the names and addresses of abortionists and urged people to contact them and ask them to “turn from killing and injuring women and children, to helping and healing those in need.”
The court also found the defendants liable for their tangential involvement in the “Nuremberg Files” web site, a site which urges the collection and dissemination of information about abortion providers and proponents. The court found that the posters and web site were “true threats” to seriously harm or kill the individuals. Based on his jury instructions, a jury awarded a staggering $107 million dollars to the plaintiff abortion providers. [See Lifeline, Vol. IX, No. 1, April 1999]
On March 30, 2001, the Ninth Circuit overturned this judgment, not only ruling that the lower court had improperly instructed the jury, but also specifically holding that the posters and web site were constitutionally protected speech. The Court relied heavily on a prior Supreme Court case, NAACP v. Claiborne Hardware, 458 U.S. 886 (1983), which involved a boycott by blacks of white-owned businesses in Montgomery, Alabama. The Supreme Court held that the speech and actions of the boycott organizers was protected under the First Amendment, even though the organizers assigned black-hatted watchers outside the stores and threatened to “break [the] damn neck” of any violators they caught going into the stores.
In the opinion by Judge Kozinski, joined by the two other judges on the panel, the Ninth Circuit not only pointed to the clearly analogous facts in Claiborne Hardware, but made several important distinctions, distinctions which had been urged on the district court by the defendants, but which it had ignored.
First, the posters and web site not only did not advocate violence, they did not mention violence at all. The posters urged nonviolent efforts to convert the abortion providers (or get their medical licenses revoked), and the web site sought information by which the abortionists and others might be identified and tried in “perfectly legal” Nuremberg-like war crimes tribunals “once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.” Thus, all constitutional analysis based on the theory of “authorizing, ratifying, or directly threatening” violence was beside the point. There was no mention of violence.
Second, on the question of whether the publications were implied rather than explicit threats, the court noted that the putative “threats” were not communicated to the abortion providers, but instead were “made in the context of public discourse.” The posters were distributed at pro-life gatherings, and the web site is available to anyone with Internet access. The absence of personal communication of the publications to the plaintiffs considerably blunted the claim that the defendants intended them as threats rather than as rhetorically charged political speech. More importantly, the fact that the speech made “through the normal channels of group communication and concerning matters of public policy,” means that it is afforded the “maximum level of protection by the Free Speech Clause because it lies at the core of the First Amendment.”
Third, as to whether the plaintiffs actually felt threatened as a result of the publications, and whether the defendants should have known that they would, the court noted that the defendants’ speech “no doubt frightened the doctors, but the constitutional question turns on the source of their fear.” There was considerable evidence that the abortionists were frightened not because they understood the defendants to be threatening them with harm, but because they feared that publication of their names had made them targets for “the John Salvis of the world.”However, to hold the defendants liable because they should have known that the plaintiffs would fear harm from unrelated third parties would impermissibly constrict their free speech rights. The defendants have the right to speak out without their words being adjudged threatening “by reference to facts over which [they] have no control.”
The Ninth Circuit decision was greeted in the media with a firestorm of criticism, mostly from people who didn’t understand the theory of the plaintiffs’ case. Amid this uproar, the plaintiffs filed a motion for rehearing en banc [by a eleven-judge panel, rather than just the three who rendered the original decision — Ed.]. Their motion was supported by an amicus brief from dozens of senators and congressmen who asserted that the Ninth Circuit’s ruling undercut the purpose of FACE, which they claimed was intended specifically to outlaw publications such as the posters and web site.
In the concurrent media campaign, commentator after letter-writer after guest editorialist decried the decision, which they erroneously implied had overturned a finding that the web site incited violence against abortion providers. However, the plaintiff abortionists had never argued this “incitement” theory, realizing that it was a constitutionally losing proposition to say that the web site and posters were speech intended to and capable of producing “imminent lawless action,” i.e., the sort of speech that incites an angry mob to start rioting. As discussed above, they argued instead that the web site was a direct threat that the defendants were going to harm them. (Once in front of a jury, however, the plaintiffs, with the indulgence of the trial judge, were allowed to introduce all the inflammatory, prejudicial evidence that would accompany an unconstitutional “incitement” theory of the case.)
Critics of the Ninth Circuit’s decision pointed to the web site’s listing of abortionists, including those killed or wounded, as proof positive that the web site is a hit list. Abortion doctors’ names and other identifying information are posted on the web site, doctors such as Barnett Slepian are killed, and then their names are crossed out, right?
Wrong. The undisputed evidence at the PP v. ACLA trial was that Neal Horsley, creator of the web site, didn’t even know of Dr. Barnett Slepian’s existence until he heard about the shooting from reports in the mainstream media. One newspaper account also carried a chart listing abortion personnel previously killed and wounded, with names shaded or crossed out. All of these individuals, with the exception of Slepian, had been shot before the web site was even in existence. Horsley simply incorporated that information into his site. Thus, two facts are indisputable: 1) no abortion provider has been killed because his or her name was on the web site, and 2) there has been a significant decrease in violence against abortion personnel since the web site began.
One doesn’t need to look at the historical record, however, to realize that the web site is not an incitement to kill abortionists. As the Ninth Circuit noted, “none of the statements ACLA is accused of making mention violence at all.” The web site clearly states that it seeks to gather documentation about, not just abortionists, but anyone involved in providing, promoting, or protecting legal abortion, including judges, politicians, and celebrities, so that this information can be used to prosecute them in “perfectly legal courts” in the future. Unless one starts from the point of view (commonly held by abortion advocates) that the only people opposed to abortion are a fringe minority of violence-prone fanatics, this justification for the site is hardly far-fetched.
Critics of this decision also found the absence of any direct threats, or even mention, of violence to be mere pettifoggery. Anyone can see that these facially nonviolent sentiments are really code for killing abortionists, right? However, even if it were permissible (which it isn’t) to hold speakers liable for the possible effects their words might have on hypothetical third parties at some unknown remove of place and time, how would one then draw the line between alleged “incitements to kill” and constitutionally protected advocacy? For abortion advocates, that’s easy; they don’t. They are on the record claiming that the phrase “Choose Life” is a rallying cry for murdering abortionists and that “the rhetoric and activities of anti-choice groups like Priests for Life have the effect of encouraging extremist violence.” In other words, to oppose abortion is to incite violence, period.
As we go to press, the Ninth Circuit has not yet ruled on the plaintiff ’s motion for reconsideration en banc. While granting these motions is unusual, and particularly so where the original three-judge panel decision was unanimous, we have learned nothing if we haven’t learned to expect the unexpected where abortion is involved.