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
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
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.