The Limits of Free Speech

Radical protest groups that advocate or condone violence inevitably test the limits of free speech. The First Amendment rights of all Americans have been defined, in part, by Supreme Court cases protecting the rights of Klan members, Communists, and other malcontents. Anti-abortion activists who applaud or excuse violence against abortion providers appeal to our constitutional tradition of tolerance for dissident speech, no matter how ugly or outre. And, in general, when they rally outside abortion clinics screaming epithets at patients and clinicians, they are indeed exercising their First Amendment rights (so long as they do not prevent people from entering the buildings.) But the constitutional right to outrage, deeply offend, or verbally abuse your opponents does not include a right to threaten them. When does intimidating, angry speech constitute an unprotected threat of harm? That was the hard question recently answered by a jury in Portland, Oregon when it leveled a $100 million damage award against anti-abortion activists on the violent fringe of their movement.

Planned Parenthood v. American Coalition of Life Activists is a civil action brought by Planned Parenthood, the Portland Feminist Women’s Health Center, and five individual doctors against fourteen individuals and two anti-abortion groups, including the American Coalition of Life Activists. The ACLA is a splinter group that condones violence against abortion providers. The suit was brought under the federal Racketeer Influenced and Corrupt Organizations Law ( RICO) and the federal Freedom of Access to Clinic Entrances Act (the FACE Act.)

Defendants were charged with unlawfully threatening abortion doctors, by featuring them on wanted posters and by contributing to a controversial web site, “The Nuremberg Files.” It posted pictures of abortion doctors (labeled “baby butchers”) and accused them of crimes against humanity, listing their names, addresses, license plate numbers, and their spouses and children’s names, when available. Three doctors on the list have been killed: their names were crossed out. The names of those wounded were listed in gray.

The RICO charge against defendants is lamentable. RICO was aimed at organized crime’s infiltration of legitimate businesses and should not be used against political groups. But the FACE charge deserved to be heard by a jury. The Face Act expressly prohibits using “threat of force” to “intimidate” or “interfere” with abortion providers or patients. Planned Parenthood v. ACLA thus raised two questions: how should this prohibition on threats or intimidation be construed consistent with the First Amendment? Did the wanted posters and Web site qualify as threats?

Federal courts have held that, in principle, threatening someone with death or serious injury is not protected speech. Like many simple legal principles, however, this one is difficult to apply, in fact. In 1969, in Watts v. United States, the Supreme Court upheld a federal law prohibiting the issuance of threats against the President. But the Court stressed that “true” threats do not include political hyperbole – without exactly explaining how to distinguish the two. (Hyperbole, perhaps, is like obscenity: judges supposedly know it when they see it.)

The 9th Circuit Court of Appeals, however, has defined “true threats.” In 1996, in Lovell v. Poway Unified School District, it held that threatening speech is unprotected when a “reasonable person” would forsee the speech would be perceived as a “serious expression of intent to harm or assault.” In making this judgment, the Court added, fact finders should consider the context of the speech, “including the surrounding events and the reaction of the listeners.” (Lovell upheld the suspension of a high school student who, in a moment of pique, allegedly threatened to shoot her guidance counsellor.)

The rule enunciated in Lovell was applied by federal District Court Judge Robert E. Jones in the Nuremberg Files case. Judge Jones instructed jurors that the wanted posters and Web Site were actionable threats if anti-abortion activists should have known that they would be considered truly threatening, given the circumstances (a history of violence against abortion providers.) As the judge explained to the jury, this is an “objective standard” “that of a reasonable person.” Jurors were not required to make any findings regarding the actual subjective intent of defendants. The question before them was under the circumstances, “would a reasonable person know that their statements would be threatening,” not “did these particular defendants intend to issue threats?”

Whether or not this objective rule satisfies the First Amendment is likely to be an issue on appeal. A rule requiring jurors to consider a defendant’s actual state of mind is more protective of speech, appropriately: people should not be held liable for threats they did not actually intend to make. It seems clear, however, that in this case, the defendants would have been found liable under a higher standard. Indeed, the jury found malice or ill intent on their part when it awarded punative damages.

First Amendment advocates are divided over the justice of this verdict. The wanted posters and the Nuremberg Files web site straddle the line between protected political rhetoric and threats to murder. No explicit threats were issued, but, considering the context and a recent history of violence, including the murders of three doctors who had been the subject of wanted posters, the implicit threats were clear. In fact, the FBI offered doctors targeted by the Nuremberg Files round the clock protection and advised them to wear bulletproof vests. One defendant testified that “If I was an abortionist, I would be afraid.”

There was no proof of a direct, causal link between the speech and violence against abortion providers; but incitement to violence was not exactly at issue in this case. Whether or not defendants’ speech incited violence, it greatly threatened targeted abortion providers. The verdict in this case suggests, in part, that people have a right not to be terrorized, (especially when engaged in constitutionally protected activity), and that the right not to be terrorized may sometimes trump the right to speak. That is a controversial idea but not exactly a novel one: it is reflected in efforts to prohibit stalking. The Nuremberg Files web site and wanted posters might, in fact, be analogized to stalking, because they explicitly targeted individual doctors.

The identification and targeting of individuals also put privacy rights at stake in this case. It is another reminder of the threats to privacy posed by the Internet. When, if ever, should your right to privacy trump my right to disseminate personal information about you on the Net?

Should the Nuremberg Files be shut down? The question is moot. Judge Jones has no power to order the site off the web, since, its operator, Neil Horsely, is not a defendant in this case. But two days after the verdict in Planned Parenthood v. ACLA, Horsely’s ISP “inactivated” his account, claiming that he had violated the company’s “Appropriate Use Policy.” Horsely reported that he was seeking a “bolder and more principled ISP” to host his site. It’s worth noting that the Nuremberg Files was only one part of a Christian web site (christiangallery.com), which (as far as I could tell), consisted largely of protected speech.

Should the defendants be shut up? Of course not, although they may be edited. Defendants must retain their right to condemn “baby butchers,” in the strongest language they can muster. But that may only include a right to condemn them in general, without targeting individuals and demanding they be brought to justice. In this case, the difference between general and particular attacks on abortion providers may be the difference between protected speech and vigilantiism.