Nuremberg Files anti-abortion site: Free speech or hit list?
Ombudsman
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org
01.19.99
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Where does free speech stop and a hit list begin?
That's the important and difficult decision confronting a federal jury in
Portland, Ore. The eight jurors are hearing a $200 million lawsuit against
the contributors to a Web page that features a grisly system for tracking the
murders and woundings of abortion providers.
The Web site (at www.bestchoice.com/atrocity/) is called The Nuremberg
Files. Beneath crude simulations of fetuses and dripping blood, it lists 225
doctors and other abortion providers. For some of the people named, the list
includes their addresses, the names of family members, license-plate
numbers, photos, personal history and other information. It invites visitors
to send in more information such as videotapes and depositions in divorce
cases.
The Nuremberg Files explains its existence thus: "A coalition of concerned
citizens throughout the USA is cooperating in collecting dossiers on
abortionists in anticipation that one day we may be able to hold them on
trial for crimes against humanity."
The site's creators offer this guide to the list:
"Legend: Black font (working); Greyed-out Name (wounded); Strikethrough
(fatality)."
In the opinion of many people, this speech does not warrant the protection
of the First Amendment. How can we abide such speech when six doctors and
abortion workers have been killed in recent years, when others have been
stalked and injured, when clinics have been bombed, when letters containing
anthrax threats have been sent, when we know that there are people out there
who have killed and not been caught?
In October 1995, Planned Parenthood, the Portland Feminist Women's Health
Center, and five doctors filed suit in federal court, charging that the site
violated the 1994 Freedom of Access to Clinic Entrances Act, which makes it
illegal for activists to incite violence against abortion doctors and their
patients. Defendants include the American Coalition of Life Advocates and
Advocates for Life Ministries.
Specifically, Planned Parenthood v. American Coalition of Life
Activists claims that the defendants have said that killing abortion
providers is "justifiable homicide" and have distributed "wanted" posters
targeting certain doctors for threats of violence, in addition to supporting
the Web site. It's the first time the 1994 law has been used when a violent
confrontation or direct, person-to-person threat was not involved.
As a measure of just how difficult this case is, Planned Parenthood had to
shrug off memories of a time when speech about contraception and abortion
was against the law; the ACLU in Oregon, a traditional free-speech champion,
chose not to defend the speakers in this case; and many staunch First
Amendment advocates have decided to sit this one out or to busy themselves
with other matters.
The Oregon ACLU did file a friend-of-the-court brief urging the court to
help guide the jurors by adopting a two-part test for defining "true
threats": In order to convict, the jury must find both that a "reasonable
person" targeted by the alleged Web site threat would be placed in fear by
the material, and that the provider of the material intended to create that
fear. Instead, the judge adopted a less-stringent level of proof, requiring
only that a reasonable speaker should have "foreseen" that his or her speech
on the Web site would place the average listener in fear.
So it comes down to eight ordinary Americans to decide.
The jury is now in the third week of hearing testimony from one side that
the defendants are engaging in protected political protest, and from the
other the wrenching tales of doctors who wear bulletproof vests, put up
steel doors and bulletproof glass at their clinics, distance themselves from
family and friends, and always sit with their backs to a wall.
Here are just a few of the questions and considerations that must weigh
heavily on those jurors' minds:
Can an adequate link be made between the information on the Web site
and the stalkers and killers of abortion providers?
Does the context or environment determine whether the speech
constitutes a threat?
Is the answer more speech, such as a Web page that lists the names and
other personal information about radical and militant anti-abortionists?
If the Web site violates the 1994 law, does that law violate the
Constitution?
A lot is riding on which way this jury goes. If it decides that The
Nuremberg Files is not protected speech, serious concerns arise.
If what a reasonable person could have foreseen is the standard, does that
mean that the publishers of books like Hit Man: A Technical Manual for
Independent Contractors or the producers of movies such as "Natural Born
Killers" are no longer protected?
If the targeted groups are allowed to define hostile speech as a threat,
does that mean that gays and lesbians can shut down anti-homosexual Web
sites, feminists can silence pornographic speech, minority groups can muzzle
the speech of racists, Jewish groups can sue Holocaust deniers, public
officials can censor militia radio, sex offenders can require the news media
not to publish where they live and the crimes for which they've served their
time, or that, on behalf of unborn children, pro-life groups can challenge the speech of pro-choice groups?
It is a dilemma that distinguishes our democracy from all other systems, a
dilemma that only our system could provoke or endure. It shows both the
strength of our system and the strength of our commitment to freedom of
speech.
Only in America could there be such a fine line between free speech and a
hit list that it becomes a matter for a trial. That is why so much rides on
this jury's decision.
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.
And few of us would want to be on that jury.
Paul McMasters can be contacted at pmcmasters@freedomforum.org.
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