The most controversial free speech case in years is now before the Ninth Circuit Court of Appeals on the West Coast. The odds are that it will eventually wind up before the Supreme Court of the United States. The issue: how free can free speech be on the Internet?
An antiabortion poster
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This is a head-on clash between two fundamental constitutional rights—the right of a physician to perform a legal abortion (Roe v. Wade) and the right of pro-lifers to object strenuously to abortion, with words. Not physical violence. But what if those words are threats of violence and indeed are seen by doctors as death threats?
On February 2, a federal jury in Portland, Oregon, awarded Planned Parenthood and four doctors who perform abortions $107 million in damages. The defendants—14 anti abortion individuals and two organizations—were convicted of threatening abortion providers through a series of posters—and a Web site, the Nuremberg Files.
One of the exhibits at the trial was a poster listing, by name, a "Deadly Dozen" of doctors found "Guilty of Crimes Against Humanity."
The poster points out that at the Nuremberg trials, the Nazis who forced abortions on Eastern European and Jewish women were prosecuted as war criminals.
The Web site of these pro-lifers included a wanted list of 225 doctors and abortion providers—not only their addresses but also their photos, their license plate numbers, and the names of their children, along with the schools they attend.
Obviously, the message was: go to the schoolhouse doors and announce that the parents of these kids are "baby butchers."
A special feature of the wanted list on the Web site was that lines had been drawn through the names of doctors who had been murdered by pro-lifers.
The names of those doctors who had only been wounded were shaded in gray. Better luck next time. The Web site was festooned with virtual blood dripping from fetus parts.
This was the first major case of its kind under the FACE Act, the 1994 Freedom of Access to Clinic Entrances Act. What makes this a historic prosecution under that law is that it is the first in which there are no charges of direct personal confrontations or direct personal threats.
"This," defense attorney Christopher Ferrara told the jury, "is a case involving words and only words."
The lead attorney for Planned Parenthood and the four doctors, Maria Vullo, countered by saying, "But it's about threateningwords. The message is: stop performing abortions or wear a bulletproof vest."
At the trial, one of the plaintiffs, Dr. Elizabeth Newhall, testified that she has lived in terror since her name appeared on the "deadly dozen" poster in 1995.
And Maria Vullo told the jury that crossing out the names of murdered doctors creates "a hit list—a clear message to those not crossed out that 'You will be next!"'
At the trial, Judge Robert Jones ruled that jurors should decide the guilt or innocence of the defendants based on whether—in legal terms—a "true threat" had been made.
A threat could be considered true, the judge added, if a "reasonable person" could see his or her name on the poster or the Web site and rationally interpret it as representing a serious intent to cause bodily harm.
The American Civil Liberties Union of Oregon tried to persuade the judge to refine that definition. Those making the frightening statements, said the ACLU, must also be shown to have intended them as threats.
By the time the jury had convicted the defendants, the judge appeared to agree with the ACLU. On issuing a permanent injunction ordering the defendants—already hit with a $107 million judgment—not to republish any of the Web site material or its equivalent, the judge said:
"The defendants, acting independently and as coconspirators, communicated with specific intent...true threats to kill or do bodily harm to each of the plaintiffs." (Emphasis added.)
The judge angrily added: "I totally reject the defendants' attempts to justify their actions as an expression of opinion, or as a legitimate and lawful exercise of free speech." The Web site, he declared, was "a blatant and illegal communication of true threats to kill."
Most of the First Amendment establishment—law professors, attorneys specializing in the First Amendment, and other advocates of free speech—disagree strongly with the judge. Among them are many ardent believers in abortion rights who say the First Amendment should protect these pro-lifers.
Says Paul McMasters of the Freedom Forum: "If targeted groups are allowed to define hostile speech as a threat...feminists can silence pornographic speech...Jewish groups can sue Holocaust deniers...public officials can censor militia radio....
"Few of us would want to see speech that puts people in fear of their lives go unchallenged. Few of us would want to see freedom of speech restricted."
How would you choose? Stay tuned.
