After 9/11, what can abortion protesters get away with?

After 9/11, what can abortion protesters get away with?

After 9/11, what can abortion protesters get away with?

The law, lawyers, and the court.
May 22 2002 6:22 PM

Poster Children

After 9/11, what can abortion protesters get away with?

Illustration by Robert Neubecker

The 9th Circuit Court of Appeals decided Planned Parenthood v. American Coalition of Life Activists last week, in an opinion that melted down the First Amendment in ways that would ordinarily trigger national alarm bells for free-speech activists. Before Sept. 11, a decision treating ambiguous threats as unprotected speech might have been troubling. But after Sept. 11, this result may well have been inevitable. The decision may just be about abortion protesters, but the subtext reveals a new awareness of the power of seemingly benign "threats" in a high-speed world of zealotry and hate. In other words, that goofy 9th Circuit may have beaten the rest of us to the punch in realizing that "threats" are never just words anymore.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

At issue were a series of Wild West "wanted" posters (a tiny replica can be seen here) and a Web site called the Nuremburg Files. Created in 1995 by anti-abortion activists, the posters featured images of abortion providers, their names and addresses, plus a "reward" of $500 for each doctor who was "persuaded" to stop performing abortions. Posters were handed out at rallies and reprinted in magazines and newsletters. In 1996, the Web site launched, with images of bloody fetuses, threats of eternal damnation, etc. The site names abortion providers, judges, pro-choice politicians, and Mary Tyler Moore as "baby butchers." It also provides—in the case of some physicians—photographs, Social Security numbers, home addresses, home phone numbers, and the names of children and spouses. The site and posters do not advocate killing anyone (references to "special places in hell" for them notwithstanding). They do feature a strike through the names of anyone who has been killed. The names of providers merely injured by abortion protesters are grayed out (perhaps signaling the weaker, easier targets for next time?).

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The "wanted" program was pretty effective at dissuading abortion doctors. After his name appeared on a poster in 1993, Dr. David Gunn was shot and killed entering a Florida abortion clinic. Five months later and after his name appeared on a wanted poster, Dr. George Patterson was shot and killed. In 1994, after his name appeared on a poster, Dr. John Britton was killed by Paul Hill.

In 1995—before the Nuremburg Files went live—Planned Parenthood and four Oregon physicians who were featured on posters sued 13 individuals, the American Coalition of Life Activists, and Advocates for Life Ministries under a new federal statute. The Freedom of Access to Clinic Entrances Act provides civil penalties for anyone who: "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with... any person ... obtaining or providing reproductive health services" [emphasis added]. In 1999, a Portland, Ore., jury found for the abortion doctors and awarded damages in the amount of $107 million. The posters and Web site were permanently enjoined.

A three-judge panel of the 9th Circuit vacated the trial court's decision last year, finding that the posters and Web site were protected free speech. The connection among the speakers, the message, and the doctors was too attenuated. Wrote the panel: "Political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party." The 9th Circuit voted to rehear the case en banc and decided last week, by a 6-5 majority, to reinstate the injunction, asking only that the trial court re-examine the size of the punitive damages award.

In doing so, they invented a smashing new jurisprudence of strict liability for perceived threats. Or something. The First Amendment protects almost all speech, be it violent, hateful, or stupid. Exceptions exist for speech that is obscene, that presents a clear and present danger, for "fighting words," or for speech that is deemed action in itself, like burning a draft card. After its decision in 1969, in Brandenburg v. Ohio, the Supreme Court has always protected inflammatory speech, even speech which advocates violence, so long as it doesn't rise to actual "incitement" of violence. But Planned Parenthood is not an incitement case. No one is accusing the anti-abortionists of urging their followers to kill physicians. Under FACE, the legal issue was whether the speakers personally threatened the doctors.

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An analogous case is NAACP v. Claiborne Hardware, involving a 1966 boycott by black protesters in Mississippi. Civil rights leader Charles Evers gave a speech promising that "if we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court unanimously held that Evers' speech was constitutionally protected. It was not followed by violence, and there was no evidence he'd personally authorized or threatened violence. This was, said the court, just strong rhetoric. To be more than just strong rhetoric the speaker must make a "true threat."

Just what constitutes a "true threat" is unclear. There has been one Supreme Court case on the matter, a 1969 case called Watts v. United States, which tells us almost nothing. Following circuit precedent, the 9th Circuit's test in Planned Parenthood requires that a listener must reasonably believe the maker of the threat intends to carry it out by personally inflicting bodily harm on the listener. Subtle inquiry. Strangely enough, the majority never got around to making it.

According to Judge Pamela Rymer, who authored the majority opinion for the 9th Circuit, by the time the posters named the doctors in the present case, "the poster format itself had acquired currency as a death threat." The doctors named—who had taken to wearing bulletproof vests—were reasonably afraid that they were likely to be killed and that the creators of the posters and Web site had intended that effect. But nowhere does Rymer say that the doctors thought they'd be harmed by the people who made the posters—an essential element for the "true threat" argument to hold up. Judge Alex Kozinski, dissenting, points out that the creators of the posters and Web site did not cause the doctors' fear; in fact they expressly disavowed violence (although they do celebrate as heroes those who kill abortionists). Why should a speaker be held responsible for the action of crazy listeners who somehow distorted a peaceful message?

Which is what makes Planned Parenthood so tricky. It's a hybrid case, sprouting up somewhere between threats and incitement. In fact if the anti-abortionists are guilty of anything, it's of threatening to be unable to control readily incited third parties. Which is still not quite a threat under the 9th Circuit's test. Judge Kozinski is probably correct in saying that it's unlikely these doctors believed that the creators of the posters and Web site intended to personally harm them. At worst, these abortion foes would merely have been delighted at their murders.

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But even if the Planned Parenthood opinion stands on shaky legal ground, it somehow still feels, intuitively, right. Why should you be able to hand a potential killer someone's address and get away with it? In the wake of Sept. 11 and in a week marked by new anthrax threats and terrorist alerts, deciding whether words are just words or thinly veiled calls to action is almost a luxury. Subtleties about whether incendiary messages are incitement or threats or protected political activity do not really matter. This is why TV networks don't air entire Bin Laden broadcasts. It's why no one wants Zacarias Moussaoui to represent himself at trial. Determining whether words are veiled threats has become a nearly impossible task, knit together with second guesses, hidden meanings, and subtle winks. It's no surprise that our patience with such inquiries has run out.

Imagine a Web site called TheJihadFiles.com, operated out of Michigan. Imagine promises of death to infidels and the celebration of American murders. Imagine lists of all those killed in the attacks on the Twin Towers and the Pentagon with strikes through their names. Imagine your name next to that. Your address. The address of your kids' schools. Your picture and license plate number. It's not a threat. Just a roadmap for the next al-Qaida goon who passes through town.

These days shouting "fire" in a crowded theater seems almost sweet. The media can inflame and incite people in ways far more powerful than any Supreme Court could have envisioned, back when the prospect of an angry mob was about as scary as life got. Threats need not be personal if one has followers who will kill on demand. Can anyone in this country still believe that violent threats only happen in personal interactions between private citizens? Sure, the 9th Circuit invented some astonishing new doctrine last week. But is anyone truly sorry they did? Even the ACLU, who never quite sorted out which side of this case they were on, has been remarkably silent. Because even if there's no legal theory with which to suppress it, we all want TheJihadFiles.com suppressed.

The dissenters in Planned Parenthood show an admirable credulity in accepting plain meanings. Believing that words on a wanted poster are mere political advocacy is certainly the best assumption we can make, if protecting vigorous debate is all we are after. But we can no longer afford such credulousness. As the majority in Planned Parenthood observed in the opinion, "By being on 'wanted' type posters, Dr. Gunn, Dr. Patterson and Dr. Britton can no longer participate in the debate." Let's not become so protective of speech or so enslaved to doctrine that we blind ourselves to the intentions of those who put no value at all on life.