How free should online speech be?

The contentious issues of abortion and free speech collided when a civil jury in Oregon found antiabortion activists guilty of inciting violence via the Web.

4 min read
As an academic, civil liberties expert, and feminist, Rita Simon fiercely guards her First Amendment protections.

But when a civil jury in Oregon found antiabortion activists guilty of "threatening" women's physicians by posting their personal information on the Net, Simon and others like her had to pick sides as two of the nation's most contentious issues collided head on--abortion and free speech.

"I find myself in the very uncomfortable position of saying this does go beyond free speech," said Simon, a professor of public affairs at American University's College of Law.

"I'm a strong supporter of free speech, but given the prior behavior of the antiabortion activists--the deaths of physicians and bombing of clinics--this is close to crying 'fire!' in a crowded theater," she added. "Usually it's the pro-choice people who are in favor of civil liberties, but they do have a stronger case here than I would usually grant them."

The civil verdict on Tuesday surrounds posters and Web sites such as the Nuremberg Files, which lists names, addresses, and other private details for more than 200 abortion clinic doctors and employees around the country. The site calls for the "baby butchers" to be "brought to justice."

Planned Parenthood filed a lawsuit against the American Coalition of Life Activists and Advocates for Life Ministries in the U.S. District Court in Oregon in an effort to derail the "wanted"-style posters. The 12-plus defendants in the case were ordered to pay more than $100 million in damages to abortion clinics and doctors.

Planned Parenthood succeeded in convincing the four-man, four-woman jury that the sites and posters were erected to incite violence and that they constituted direct threats against the people they listed. For example, a handful of names on the Nuremberg Files are crossed out to mark a "fatality," including New York physician Dr. Barnett Slepian, who was killed in his kitchen by a sniper bullet in October.

But the defendants, who vowed to appeal the ruling, contend they have a First Amendment right to express their strong views about the deeds of doctors who perform abortions. The lists were created to keep public tabs on the physicians in case the day comes that the doctors can be put on trial for "crimes against humanity," supporters of the defendants contend.

"If these posters are threatening when they contain no threatening language whatsoever, then virtually any document which criticizes an abortionist by name can be construed as threatening," defense attorney Chris Ferrara said after the verdict.

Planned Parenthood cited the 1994 Freedom of Access to Clinic Entrances Act (FACE) in its lawsuit, which "makes it illegal to incite violence against abortion doctors and their patients," according to the Justice Department.

Despite the organization's victory, however, the Nuremberg Files site is still live on the Net and likely will continue to be unless or until a court orders that it be shut down.

Still, observers say this case could lead to a historic redefinition of protected speech, as the digital age continues to blur the lines between private and public matters.

"I see it as a big deal," said Jonathan Zittrain, executive director of the Berkman Center for Internet & Society at Harvard Law School. Zittrain said the determination of free speech boundaries on the Net eventually will focus on the collection of private information about individuals and how it is packaged.

"There is a classic First Amendment issue that says, 'Has the speech on this Web site risen to the level of a threat?' The distinctive thing about this case is not the 'threat' issue," he said.

"The Internet allows for people who are very upset about something to reach a lot of people," Zittrain added. "But taking information about people?piling it all up and putting it on a site that calls them 'murderers' and 'butchers,' I think sooner or later we're going to have to decide how the First Amendment applies to that. The key would be to figure out what line you could draw."

Similar conflicts have surfaced before with other "fringe" speech, such as hate speech and sexually explicit material. Simon, for one, says she also is reluctantly opposed to publicly offering the names of convicted sex offenders once they are released from prison. Many such lists also are published on the Net.

Other free speech advocates feel the same disharmony when it comes to the Oregon verdict.

The American Civil Liberties Union, for example, came down on both sides of the debate. The group filed a brief supporting Planned Parenthood, but also argued that the court should have adopted a stricter constitutional standard "to distinguish between unlawful threats and protected speech."

"The standard which is finally adopted in this case will apply in many future cases and must be carefully drawn to safeguard against any chilling effect on free speech while still preventing the First Amendment from being used as a shield by those who make true threats of violence," David Fidanque, ACLU-Oregon's executive director, said in a statement.

However, other free speech advocates, who also support abortion rights, see the issue as more clear-cut than Simon or the ACLU.

"I'm of the camp that inciting people to violence shouldn't be protected speech, so I'm very comfortable with the ruling," said Valerie Hoecke, vice president of operations at Fire Engine Red, a Web design company in San Francisco whose private mailing list has been hopping with debate about the verdict.

"It's a very leftist list," she noted. "Everybody agreed that we want to protect free speech but not this speech."

Anne Speedie, a copy editor for Wired magazine, also failed to see the First Amendment protection for what has been called a "hit list" against abortion providers.

"I don't feel conflicted," she said. "They are scaring people out of getting into this profession."

Reuters contributed to this report.