Free Speech or Incitement To Violence: The “Wanted Posters” Abortion Case[1]

By a vote of 6-5, an en banc (full court) Ninth Circuit rejected an earlier ruling by three of its judges, and upheld civil damages of over one hundred million dollars handed down against a pro-life group. They were found guilty of threatening via "guilty" posters and a website the jury felt led the physicians to reasonably fear for their safety. The protesters won their first appeal because it was held that they allegedly did not promote violence and the fear was a result of the actions of others. The full court disagreed, not impressed by the public nature of the protest or the alleged nonviolent tendencies of those who protested. The dissent was appalled because they felt precedent and common sense showed just the opposite. Who is right? Is this case a matter of illegal threats, or quite constitutional protest of activity some argue is a crime against humanity worthy of the severest punishment?

Abortion obviously inflames a lot of emotions, especially when it comes to those who strongly advocate their opinions on the subject. Such advocacy is clearly protected as a form of free speech, even if it is distasteful, unpleasant, or hateful. [For an article by a former abortion provider and free speech activist that discusses this case, see here.] This includes forms of abortion related speech that makes a person's decision whether or not to have an abortion a more difficult one. If we respect the right for workers to boycott and picket certain businesses, businesses that we as consumers have a right to associate ourselves with or even work at if we please, peaceful picketing outside of abortion clinics must also be allowed. This is why laws (e.g. FACE) against illegitimate protests of this nature clearly protect peaceful picketing and protest.

Just as we can vehemently oppose actions and people involved with such actions (e.g. smoking), there clearly is a right to strongly state one's belief that abortion is murder, and those who perform it are murderers. Murderers that should be punished, and perhaps killed themselves. After all, slavery and segregation were once held to be positive goods, but this did not mean advocacy that those who helped free slaves or mix the races are right to do so could (or at least should) have been prosecuted. Free speech is in part protected to make sure people have the right to express their opinions, even if those opinions do not meet immediate approval, or match what currently is accepted or legal.

The right to advocate violence is clearly protected by current First Amendment doctrine, and if it were not, anyone who argued that those who murdered or raped members of their family deserves to be killed would be a potential criminal. After all, the law does not currently allow capital punishment in cases of rape, and those who advocate it in this case often do not think there is a need to use the legal system at all. Likewise, those who support the right of battered women to kill their husbands, even in cases where the law might not allow. Finally, we can think of less extreme scenarios, such as "you should beat up anyone who teases you, " which does not comport with the law. Suffice to say there are a number of cases where advocacy of violence is accepted, even if making such violence illegal is justified. And when it comes to free speech, clearly one's opinion might not only be what society in general considers acceptable. The right to express oneself and the value of society knowing about such expression to understand, answer, or deal with it surely covers quite unacceptable opinions as well. Therefore, stating that you think all homosexuals should be killed (or allowed to adopt) is allowable. As is, the opinion that abortions should be stopped, those who perform them arrested, and that these things are so important that violence might very well be justified in various cases.

Therefore, the general message of the defendants in this case is clearly constitutionally accepted speech. This is true even if the organizations' alleged statements of nonviolence are a sham, and that deep down they advocate violence means to stop what they see as crime against humanity. Assuming their point (which many do), it is not a totally outrageous statement. After all, was violence justified to stop the Holocaust? Slavery? And if one wishes to look at only intimidation and illegal acts, organized labor used violence, animal rights groups vandalism and trespass, civil rights groups trespass (sit-ins), and the list can go on and on. This is true even if we argue that nonviolence and legal means are the best way to fulfill individual ends, which might be true, but is somewhat beside the point. The legitimacy of advocacy of violence and criminal action as a constitutional (or logical) and moral (or practical) matter are different things. Finally, this becomes no less true after September 11th. Jewish use of force against the Nazis doesn't suddenly become wrong. The bombing does help put violent and illegal action in perspective and show the great dangers involved. Nonetheless, freedom of expression does not suddenly disappear here any less than the rights of criminals disappear when terrible crimes are involved.

This case however is said to not be one of general advocacy of violence, but one of threatening speech. Nonetheless, even here the question is a lot closer, one of "true threats." After all, if one enters a store that is being picketed, you are taking part in a potentially dangerous (though legal) activity. Likewise, those who say homosexuals are sinners or that Catholic priests are a bunch of close-minded potential perverts leave these groups open to abuse. Nonetheless, just because opinions can be distorted or incite others to break the law does not make the opinions a "true threat." This term of art concerns statements by a person that reasonably can be interpreted to imply direct harm will be forthcoming as a result of the very statement.

For instance, if I say "testifying against Uncle Lou might just be dangerous for your health," and it is known that I work for Uncle Lou, we just might have a "true threat." Or more directly, "go out with Lorraine, and I'll beat the hell out of you." Compare this to: "people who cheat deserve to be beaten up." As shown by the Uncle Lou example, I need not be totally literal ... the implication can be reasonablely inferred. Furthermore, "context" counts: if the courthouse is in a dangerous neighborhood, and I said the same statement to my brother, it might very well not be a threat. On the other hand, if a hug in the past was shown to imply "you are next," this allegedly innocent act can be seen as a threat. Nonetheless, generally you would have to be in control of the action for a threat to be present. Stating that testifying against mobsters is hazardous for one's help as a general statement might cause fear, but is not a "true threat."

If we keep this in mind, the immediate case becomes more nuanced than might be thought. The defendants are not part of a group that advocates violent action, though various members of it supported those who committed (and in some cases were arrested and convicted of) violence. Thus, their nonviolence should be taken with a grain of salt. Nonetheless, as noted, violent advocacy by itself is acceptable. This includes setting up a website [which by the way is still operating, quite legally] in which one section lists those abortion providers who were killed or injured, implying if not directly stating, that they are supportive of those who do the killing. Furthermore, posters that promote the arrest of certain abortion providers (called the "Deadly Dozen," a technically accurate term in that abortion does in some fashion kill ... butchers at a slaughterhouse would be deadly as well) using legal means would seem to be acceptable as well. And, this is exactly what these defendants are being charged with, and being told to pay over one hundred million dollars to compensate. On some level, this seems just a tad outrageous.

How about the fact that the group is targeting individual doctors and supplying personal information such as photos and business and home addresses to single them out for public approbation and attack? First off, let it be noted that the court opinions assume for the sake of argument that no private information is involved, and that things like license plates, schools of the children of those involved, and other like information that might be present in some cases on the website is not mentioned. Second, clearly there is a right to criticize physicians, and let it be noted that they are members of a public profession that is listed in the Yellow Pages. Aside from the fact that these individual abortion providers (the only ones at issue here) are in varying degrees public figures by means of speeches they give or for the very fact they are in a lawsuit (one covered by the press), their faces and professional standing are not private facts.

If this is true, is it wrong to also post facts also in the public domain as well? For instance, a newspaper that states that Dr. Jones' is married to Mary or that their children go to a local Catholic school could not be charged with violation of privacy. Though it might be a closer issue, neither would home addresses that are listed in the phone book or observable by legitimate means. At any rate, the reasoning of this case would not require any of this "private" information to justify a "true threat" conviction. The public nature of the information, as well as the public means of showing it (website and public protests) is clearly rather relevant, but one might not know it from reading the opinion of this case.[2]

Ultimately, this case rises or falls on the fact that posters similar to those here were used as "Wanted Dead or Alive" signs, resulting in the injury or death of several people, including one of those involved in this very lawsuit. This made the plaintiffs in this case very wary about the posters, as well as the section of the Nuremberg Website that listed those injured and killed. Furthermore, the fact that the defendants were supportive of those who committed violence, including having a special dinner to honor them, made it hard for them to deny that they were aware of such fear. It is reasonable to say that the "Deadly Dozen" saw the posters as a type of code akin to the cross used by the Klan or a Ryder Truck (like the one used in the Oklahoma City Bombing) parked in front of an abortion clinic. They were not only threatened because their names and faces were out there (no doubt this was part of it) for dangerous people to see, but saw the posters and website itself a form of threat.

It is true that the threat was not literally threatening ... the posters and websites did not themselves advocate violence in so many words. Nonetheless, it seems a bit dubious to claim that arguing that an implied threat was present is unjustified or unreasonable. In this context, the means used can reasonably be seen as threatening. And, threatening not as just a matter of violent advocacy, but also direct threats of personal harm. We are not dealing with a clean slate here, and to say otherwise is rather naive.[3]

The original appellate court decision did say in passing that if an implied threat is present, it is actionable, but basically said that it is unclear if that was the test supplied by the trial judge. Much was made by the fact that the plaintiffs could have been fearful of the acts of others not in control of the defendants, which means that the defendants themselves are not guilty of "true threats." This might be a reasonable statement to make, one that warranted remanding the case back for review, as was the procedural issues raised by the dissent after the matter was reviewed by the appellate court a second time. Nonetheless, an implied threat could very well be shown to exist, especially if the plaintiffs had to narrowly target their lawsuit to prove so.

The dissent argued that a burning cross was an example of something that on its own can be considered threatening. A reasonable argument can be made that by now, especially for these individuals, a "guilty" or "wanted" poster fits this narrow class of objects. On the other hand, the use of individual facts about the physicians alone cannot be used to justify the verdict. Would a list of accused sexual predators on a radical college feminist website be equally illegitimate? What if the website advocated illegal acts like vigilant attacks on date rapists or denying them a right to be at the college at all, college rules notwithstanding? Speech does not just cover broad subjects or professions; sometimes individuals themselves are targeted, and information they rather keep private is made known.

This case is best decided on quite narrow grounds, and the most troubling nature of the majority opinion is its potential breadth. Not only does it ignore potentially troubling procedural factors (to name but one, summaries of testimony was accepted into evidence, important nuances lost in the process), its standard can be used to limit protected speech. First, the majority mostly took in stride the public nature of the speech; public speeches and websites are much less likely to be threatening than private or face-to-face speech. Second, relying on the "understood" meaning of admittedly neutral speech (like posters strongly criticizing certain individuals) can result in speech being at the mercy of the touchiest individuals out there. Finally, individuals or even professions that in the past were threatened could result in innocent critics (who had little or no part at all in earlier threats, except perhaps supporting the point of view of those guilty of the threats) being punished for speech that in any other case would be constitutionally protected.

There is talk that the US Supreme Court might very well review this case, though the general popularity of the decision makes it questionable if they would want to take it on. Surely, the due process concerns wouldn't upset them that much, though justices like Scalia and Thomas are sensitive of the rights of pro-life protestors. On the other hand, this radical wing of the movement tends to give generally peaceful members of this group a bad name. Also, it is questionable if this case is but one of many that the circuits are struggling to determine ... though the meaning of "threat" is somewhat in flux. The fact that the contours of the “threat exception” to the First Amendment is a rather underexamined issue on the Supreme Court level might warrant review.

The fact both sides of the 6-5 appeals court ruling pretty much talked past each other also is a reason to review: such a narrow ruling calls things into question. Supreme Court review seems on balance a good idea, even if it's unclear if their ruling will be much of an improvement. As is, the result is flawed, but on balance defendable ... as long as the unique facts are kept in mind by later courts that look back to it for precedent. The legitimate fear that such nuances will not be respected, or at most respected selectively, would suggest that clarity is necessary. Ultimately, I had an open mind regarding the issue, but lean toward supporting higher court review so the facts and law might be clarified. The penalty, closeness of the vote, and complexities of the issues appear to warrant it. [Update: The Supreme Court (6/03) decided not to hear the case, after being advised by the Solicitor General of the U.S. that its office was against it. More development in the lower courts probably is warranted, so this is an acceptable result.]

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[1] Some have criticized the cartoon that was used for the article (also having a link to the ruling itself) corresponding to this link as anti-religious. Let’s break it down. This case involves a website that lists abortion providers who were hurt or killed by individuals who justified their actions using the word of God; in particular, the belief Christianity supports the view that abortion is murder, and those who assist them are murderers that must be stopped at all costs. Furthermore, the defendants of this case have defended and supported these “assassins of God.”

So, why is a cartoon that portrays a blooded individual with a cross on his shirt wrong? The only explanation is that the critics miss the point: the cartoon is criticizing extremists, not suggesting that all Christians or opponents of abortion are violent extremists. Are we to also criticize cartoons that portray Muslim or other Christian terrorists (such as those who commit violence on homosexuals) as blooded extremists that pervert the religion they wear on their sleeves (or shirts)? Are opponents of the abortion cartoon as incensed when they see one of many cartoons involving Muslim terrorists?

[2] A related issue is the matter of “abortion cams” that film those who come in and out of abortion clinics. Since they are filming what is in public view and arguably relating to a matter of public interest, are they legitimate? I put aside now the concern that legal does not always mean something is not a violation of privacy, and therefore wrong on that ground. This case is about legality, and a huge penalty judgment, and privacy concerns surely factored into the jury’s decision making. Two alternate views on the legality of the practice: pro and con.

[3] Thus, statements by opponents of the ruling such as: “Yet, the poster/brochures contained no explicit threats. The website contained no explicit threats. No one called for violence against any of the plaintiffs. And the relationship between the defendants and the offending website -- as well as the relationship among all the defendants themselves -- was very weak.” [http://www.lektrik.com/grist/jr001204.htm] should be taken with a grain of salt. Notably, the appellate decision showed how the plaintiffs clearly did supply information and work with the operator of the Nuremberg Files website.

Likewise, a law review article that stated: “the judge handed down a draconian injunction against these activists which essentially told them to "shut up” about abortion, "shut up" about the evil abortionists, and "shut up" about what these people do in the spiritual darkness they inhabit” is just plainly wrong. The author knows that pro-life speech is repeatedly protected, including in this very case [an “Abortionist/Murderer” bumper sticker was not accepted as evidence, since it clearly is protected speech]. Hyperbole is clearly present on both sides.