‘Hit list’ kept by anti-abortionists deemed protected speech

From the Spring 2001 issue of The News Media & The Law, page 20.

A three-judge panel of the U.S. Court of Appeals in Pasadena (9th Cir.) ruled on March 28 that the publication of names and addresses of doctors who perform abortions was speech protected by the First Amendment.

The court overturned a lower court’s $107 million jury verdict against a Web site that provided a list of doctors who perform abortions. The list showed those doctors who had been murdered by anti-abortion activists as crossed out, and those who were wounded marked in gray.

Beginning in 1995, the American Coalition of Life Activists began compiling personal information on doctors who perform abortions so that, it claimed, Nuremberg-like war crimes trials could be conducted “once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.”

One anti-abortion activist, Neal Horsely, published the information on a Web site, which calls doctors who provide abortions “baby butchers.” Although the Web site did not directly advocate violence, the doctors knew that such public releases of private information had preceded violence against other doctors in the past. Some donned “bulletproof vests, dr(ew) the curtains on the windows of their homes and accept(ed) the protection of U.S. Marshals,” according to the court.

The Web site also seemed to look approvingly on violence against doctors who provide abortions, although it didn’t expressly promote such violence. For example, the site marked the names of those already victimized by anti-abortion terrorists, striking through the names of those who had been murdered and graying out the names of the wounded.

Some of the doctors sued in Portland, Ore., federal district court, charging the coalition and Horsely with violating the federal racketeering act and the Freedom of Access to Clinic Entrances Act of 1994. A jury awarded the doctors $107 million in damages for what it termed were “true threats” to the doctors.

Judge Alex Kozinski, writing for the three-judge panel, distinguished between threats that were “threatening on their face but could only be understood, under the circumstances, as hyperbole or jokes” from what he called “true threats.”

Kozinski ruled that defendants can only be held liable for “true threats” such as blackmail or extortion because they directly “authorized, ratified, or directly threatened violence.” Speech that only makes it more likely that some person will be harmed in the future by an unknown party is not actionable.

“Unless ACLA threatened that its members would themselves assault the doctors, the First Amendment protects its speech,” the court said.

The court found that the jury instruction on what constituted a “true threat” could have permitted the jury to find for the plaintiffs even if the jury believed that the threatened harm to the plaintiffs came from third parties, not the defendants.

The court analogized the case to a 1982 U.S. Supreme Court case, NAACP v. Claiborne Hardware. In that case, Charles Evers, a Mississippi civil rights activist, threatened blacks who broke a boycott that they would be “disciplined” and said the sheriff could not protect them at night. The NAACP also published names of people who broke the boycott against white-owned businesses. The Supreme Court ruled that the statements were protected because there was insufficient evidence that the activist had directly advocated violence.

Not all legal scholars agree with Kozinski’s analogy. Charles Hinkle, an attorney at Stoel Rives in Portland, said the facts of the Claiborne case were very different than in this one.

“No one testified in Claiborne that they felt threatened,” Hinkle said. “Charles Evers was not the kind of person to go break the kneecaps of his black neighbors, and everybody knew it. His comments were simply not a real threat, and everybody knew it.”

But the implicit threat in the Nuremberg Web site was both real and perceived by the plaintiff doctors who were listed on the site, Hinkle said.

Kozinski said that although the speech by the American Coalition of Life Activists was “pungent, even highly offensive,” it did not threaten harm to the doctors and only expressly advocates the gathering of information for the potential war crime trials.

Like the publication of names in the Mississippi boycott, the publication of personal information about the doctors who perform abortions was not a sufficient basis for liability even though it led to a fear of violence, Kozinski wrote.

If the jury were allowed to consider the potential actions of third parties when determining if the defendants were threatening violence, “it could have a highly chilling effect on public debate on any cause where somebody, somewhere has committed a violent act in connection with that cause.”

But Hinkle, who also teaches constitutional law, suggested that a court may find a threat actionable when the speech and the third person’s conduct are too close in proximity.

“When is it too soon to become alarmed? We now know that the killer at (Columbine High School) had talked about murdering someone a full year before he actually did so,” Hinkle said. “The fact is that there are some anti-abortionists who believe not just that it is morally acceptable to kill abortion providers, but that God wants them to kill the abortion providers.”

The court was also persuaded to afford the speech protection because it was made in public and, thus, the speech was less likely to be a threat. The court reasoned that “what may be hyperbole in a public speech may be understood as a threat if communicated directly to the person threatened, whether face-to-face, by telephone or by letter.”

On April 12, Sen. Charles Schumer (D-N.Y.) announced that he was leading a group of 40 members of Congress in asking the Ninth Circuit court to revisit the issue. In a press release, Schumer said that he would file a friend of the court brief on April 13 with the court.

“If the Ninth Circuit’s ruling is allowed to stand, there is legitimate concern that doctors will be left vulnerable to the threats and violence committed by those who seek to shut down clinics by any means necessary,” Schumer said.

Schumer was the legislative author of the Freedom of Access to Clinic Entrances Act of 1994, which prohibits violence or threats of violence at reproductive health clinics. –DB