The limits of free speech

A lifelong advocate of both free speech and women's right to abortions agonizes over a ruling that may protect doctors but shrink free speech.

By Sallie Tisdale
January 31, 1999 1:00AM (UTC)
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In a verdict that may change the definition of what is considered constitutionally protected free speech, a federal jury in Portland ruled Tuesday that a virulently anti-abortion Web site and "Wanted" posters constituted death threats against doctors who perform abortions. The U.S. District Court jury ordered more than a dozen defendants to pay $106.5 million in punitive damages and $500,000 in compensatory damages to the plaintiffs, a local Planned Parenthood branch, a women's clinic and four doctors who have appeared on the Web site or the posters. The jury found that while the defendants' words were not direct threats, they constituted threats in the current climate of anti-abortion violence.

As a strong advocate of both free speech and reproductive choice, I found this case equally difficult to embrace or reject. The jury considered as evidence only a few specific instances of speech:


A poster listing the "Dirty Dozen," doctors listed as "guilty" of "crimes against humanity" for performing abortions, along with their photographs, names and personal information. A "Wanted" poster with the name, address and photograph of a doctor who provides abortions. And a Web site called the Nuremberg Files.

The Files has several parts. Photographs of bloody fetuses and fetal body parts. A plea that readers "help collect evidence" for "dossiers" on abortion providers and supporters -- such as photographs and "personal data" of all kinds, including license plate numbers, fingerprints and the names and ages of children. (This evidence, says the site, can be used for future trials against abortionists and for protest work now, such as "revealing to neighbors and colleagues" what the abortionist does.) Readers are exhorted to "Call Your Local Abortion Mill and Ask For Names, etc. Visit the Baby Butcher Shop and Take Pictures (Exercise Creative License)." There are also "especially weird and ghastly abortion horror stories in an evergrowing hall of horror stories." And there is a list: the names of hundreds of doctors, nurses, judges, politicians, police officers, their spouses and other "blood flunkies" who have helped to provide abortions or protected clinics throughout the United States.

The posters and Web site are inflammatory and in many ways harmful. But as a longtime defender of broad protections for speech and expression, I don't think it's useful to claim that speech isn't harmful. We who work with words, in fact, quite want our speech to be powerful and even dangerous, if only to the status quo or conventional wisdom. We want our words to be so strong they move our readers to new ideas -- even to new acts.


The standard free speech motto is that "the best cure for bad speech is more speech." Under such a banner, the speech I find most hateful of all is that which I must most vigorously defend, and it wasn't very long ago that statements supporting a women's right to choose abortion were as reviled as pro-choice people now revile anti-abortion words. To claim that opinions and even dire insults are threatening strikes me as a very dangerous approach to public discourse.

However, I didn't observe Planned Parenthood vs. American Coalition purely from a free-speech point of view. I've written in the national media about my pro-choice beliefs for years -- an action that alone would be enough to put my name on the Nuremberg Files. And I used to be an abortion provider, a nurse in a clinic here in Portland that did little else but abortions -- thousands of them annually. We did a lot of first-trimester abortions, a fair number of second-trimester abortions and a small but steady number of late-term abortions sliding close to the delicate and controversial line between the second and third trimester.

The plaintiffs claimed, and the jury found, that the posters and Web site were, in fact, explicitly threatening in the current climate of anti-abortion violence and murder, and that "reasonable" people would know this. There is no uniform, national standard for what constitutes a "threat" -- the Supreme Court has never dealt with this question, and so various jurisdictions have developed their own definitions. The 9th Circuit Court, where this lawsuit was heard, holds that a "true" threat is made if a "reasonable" person should have known that the listener or audience would perceive the words as a threat.


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Clearly many people have taken these words seriously. As soon as
the "Deadly Dozen" poster was released in 1995, the FBI contacted the doctors on the list and told them to seek protection. Two Florida doctors who were featured on the posters, John Britton and David Gunn, were subsequently murdered. (Gunn's son is now on the Nuremberg Files list.) As one lawyer for the plaintiffs, Maria Vullo, said in her closing argument, a pattern has been created: "Poster. Murder. Poster. Murder. Poster. Murder." After Dr. Barnett Slepian was killed in Buffalo last fall, his name was slashed through on the list, along with the names of other abortion providers who have been murdered. The names of people who have been wounded are shaded in gray. A photograph of Dr. Warren Hern, one of the plaintiffs, is currently on the Nuremburg Files site under the heading "Third Trimester Butcher," followed by the address and telephone number of his
clinic in Boulder, Colo., and the line, "You might want to share your point
of view with this 'doctor.'"


In November 1998, after
Slepian's death, a federal task force of ATF and FBI agents, U.S.
marshals and local police was formed to focus on anti-abortion activity in
New York state. Dr. Robert Crist and Dr. James Newhall, two of the
plaintiffs, testified that they felt directly and personally threatened with
violence by the words of the defendants. Newhall said the FBI suggested he
wear a protective vest and have 24-hour protection, and he wore the vest even
while testifying.

The federal government has tried for years, and failed, to make a
criminal case out of the evidence used in this trial. There were no clear precedents here. This was apparently the first
case in any court in which language that was not expressly and directly threatening was being called an illegal threat based on a social context. That there were no direct threats was not in contention. The words in question contained only the shadow and suggestion of violence along their edges -- only a vague image of retribution and the hint of seething rage in the speakers. In and of itself, this is protected speech. Lawyers observing the case agreed that the onus was on the plaintiffs to make a convincing case, precisely because the words in question are so unpopular. The question of context was essential.

In a 1969 lawsuit, Watts vs. United States, a war protester who had
been arrested for threatening the president won on the issue of social context.
The defendant had said, "If they ever make me carry a rifle, the first man I
want to get in my sights is LBJ." The court held that his words, spoken
during an anti-war protest, were protected political speech. Context has been
used in other cases as well to prove that hateful and dramatic words are in
fact rhetoric, spoken in a context of drama or debate, and therefore not
"true" threats.


In legal terms, words are not solid objects or unchanging
qualities, but malleable and relative. Crying "fire" in a parking lot is not the same as crying "fire" in a crowded theater. In Planned Parenthood vs. American Coalition, for the first time, the context was being drawn to prove the opposite of what it has been used for in the past -- not that dramatic speech is merely rhetoric, but that in certain climates, it cannot be. In a world where doctors on wanted posters are murdered, wanted posters become something more than words.

Some scholars hold that political speech must in some way be
politically "effective" to be so defined. Is there "political" power in listing home addresses and the ages of a person's children? "You don't really have a
debate if one side bullies the other side," says Ashbel Green of the
Oregonian, one of the only reporters to attend the entire trial. Political
speech is, at least casually, defined as that which evokes response, debate
and dialogue from one's opponents. Speech that effectively silences debate
by creating fear doesn't fit this definition. But there is danger here, too --
just as I hesitate to allow anyone else to define "politics" for me, I
hesitate to allow others to define "effective." These are evolving and
complex qualities best left as broad as possible.

Michael Simon, the ACLU lawyer who filed the friend-of-the-court
brief in this case, told me, "The critical issue in this case is to remove violence and the threat of violence from the abortion debate, but to do it in such a way as not to compromise free speech."


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"If I was an abortionist, I would be afraid." So said Andrew
Burnett, one of the defendants, on the stand. Burnett helped circulate the posters. He cried during his testimony, passionate in his belief that abortion is the cold-blooded murder of babies, and that in the face of such a crime a person could be morally justified in killing an abortion provider. But Burnett himself has not committed murder, and other defendants stated that they had signed pledges of nonviolence. Michael Bray, another defendant, is the author of a book called "A Time to Kill," which defends the killing of abortion providers as justifiable homicide. But he hasn't killed anyone himself. The defendants argued throughout this trial that their words are simply words, protected expressions of opinion and clearly allowed under the First Amendment. They have not threatened individuals, have offered no rewards, incited no individuals to act against the law.

There were small as well as broad legal questions being argued here,
and in this space I can only present the broadest. Facing the six plaintiffs were 13 defendants -- 12 individuals and the American Coalition of Life Activists, a splinter group of the more mainstream anti-abortion movement. (Andrew Burnett also represented the Advocates for Life Ministries organization.) Even the central legal questions are labyrinthine, since the plaintiffs used FACE, the Free Access to Clinics law, which bars activists from inciting violence against abortion doctors and patients, and RICO, the Racketeer Influenced Corrupt Organizations Act, which prohibits various kinds of conspiracies and extortion.

The creator of the Nuremberg Files Web site, Otis O'Neal Horsley
Jr., was not even a defendant, partly because the suit was filed in 1995. The Web site didn't appear until 1996, even if much of its content was provided by the defendants, a fact still in dispute. In one of its stranger moments, the
trial used Horsley, instead, as a witness -- for the defense, as he willingly
took full responsibility for the evidence in question.


The plaintiffs tried to include a bumper sticker that read "Execute
Murderers/Abortionists," but the ACLU argued against this as an expression of
"abstract advocacy," and the judge agreed. Since then, the ACLU has filed a
brief supporting portions of each side of the lawsuit. "We believe the
plaintiffs have the right to go to the jury," says the ACLU's Simon. "But we
would put a very, very high bar for the plaintiffs to recover. We do believe
there is a way to balance" the sometimes conflicting values of free speech and
freedom from the fear of violence.

The ACLU's biggest objection was specifically at the 9th Circuit
Court's test for a threat, since it doesn't require the defendant to have clearly intended to threaten a person. In that definition, the speaker need not have meant to threaten, only to have known that the listener could interpret words that way. This, according to Simon, is clearly chilling to speech. "The speaker might have to worry" about his or her words to the extent that his "right to speak" might be intimidated. In its brief, the ACLU asked the court to apply a stricter standard, one in use in the 2nd Circuit Court, which requires "unequivocal, unconditional, immediate and specific" words that express a "gravity of purpose and imminent prospect" of violence.

More than one observer has noted the similarities to a previous
civil action here in Portland, in which white supremacist Tom Metzger lost a huge judgment to the family of Mulegeta Suraw, an Ethiopian man murdered by several of Metzger's protégés. But there are actually few similarities. The court in
that case held that Metzger's words and writings directly incited the murderers to act. Incitement goes to the criminal -- threats to the victim.
The Planned Parenthood case didn't claim that the defendants encouraged an
individual to commit a crime; rather, it claimed the intent was to terrorize
the plaintiffs with the possibility of a crime.

The trial (which continued through the recent 26th anniversary of
Roe vs. Wade) took place curiously outside of common debate. No cameras were
allowed in federal courts, and Judge Robert Jones put gag orders on everyone
concerned: plaintiffs, defendants and their lawyers. There were no
television snippets on the evening news, no press conferences. The eight
jurors are still unnamed, identified only by numbers. But it was still an
acrimonious event, full of objections and judicial scolding. One observer described it as "just a blood fight in the 25th round, an ugly fight."


A friend of mine likes to say, "Rights divide, responsibilities
connect." He believes the protection of individual rights sometimes goes too far, inviting
damaging divisions between people. He sees this trial as an example of that,
of speech that is clearly dangerous to society and shouldn't enjoy any kind of
protection. Buried in these feelings is his belief in human goodness, his
hope that we will, in the end, find a way to be kind to each other. I want to
embrace this hope, but I wonder if it isn't nearly as dangerous as hateful speech -- dangerously naive. Questions of free speech always return to the central
issue of who should decide, who will define our words: What will we
consider kind? Good? Helpful? Harmful? Whose choices will prevail?

I have spent many years trying to see the world through the eyes of
anti-choice protesters, to continually remind myself that in their world, I am
dangerous, I am a killer, and they are as outraged by my acts as I am when I
read of Rwanda, Kosovo, Auschwitz. I believe in direct action and civil
disobedience in some cases, when legal avenues are exhausted. I consider
such acts to be ones of last resort, but sometimes forced upon those who would
stop harm when the government will not. This is not an attitude similar to
anti-abortion radicalism -- it is, in its foundation, exactly the same. I may
think their speech is cruel and hateful and mine is compassionate and kind,
but they think the same of me.

Defendant Michael Bray said recently, facing down this suit, "If you are
blocked of
public protests, then people are left saying, 'What are we going to do?'" He
made the point that any restriction on speech narrows the outlets for opinion
and expression, and can create a motive for action instead of words. He made his
position clear: "It leaves only one option: the covert use of force --
vandalism, blowing up places and terminating doctors." While I find Bray's
point sympathetic in the abstract, I believe he meant this comment itself to
be threatening to all who listen. And he didn't discuss the inarguable fact
that force -- including vandalism, including "termination" -- is already being
used to try and stop abortion.

Joan Bertin, director of the National Coalition Against Censorship,
told me that she'd hesitated to visit the Nuremberg Files Web site. But when she did, she decided everyone should see it. "My first thought was that these people are completely nuts," she said. "The more people see it, the more will know how completely kooky it is." The best cure, to Bertin, is always going to be more -- more people seeing the words and pictures in question, more people
talking about it. More words, more speech -- not less.


One of the central ironies is that it has been getting steadily more
difficult to obtain an abortion, even as it's become harder to protest
abortion. Pro-choice people feel we've seen the right to reproductive choice
steadily erode away and access to even early-term abortion become increasingly
difficult. But anti-choice people feel driven to violence because all their
efforts haven't stopped abortion. "Both sides have lost their support," said
Ashbel Green, "and the people left are the most passionate and the most

At the end of the trial, the judge gave the jury 49 pages of instructions,
almost a third of them devoted to RICO. He instructed the jury to apply the easier 9th Circuit test and determine if the words formed a threat in the current climate, even if the defendants had not intended them to be threats. Michael Simon of the ACLU was openly disappointed in the judge's choice to use this looser standard.

Green reminded me that the First Amendment has been broadly interpreted only in recent years, and that this trial may be a mark of the limit of that trend. "In some ways you could see this as another way that the freedoms of the '60s are being revalued," he said. Believing in the concept of free speech no matter what it looks like is a lot easier in theory than in practice.

Throughout this trial, I've resisted the plaintiffs' arguments even
while I embraced their courage and supported (financially as well as politically) their work. I have found myself reluctantly agreeing with our local newspaper's conservative columnist, who said that defining threats entirely by how they are heard is dangerous. If we can be sued not for our words but for how they are understood, the possibility of political silence is real for all of us.

Then I went to the Nuremburg Files, searching for familiar names,
and found them -- the names and personal details of doctors, nurses and other pro-choice advocates I know. The Files, its advocates hope, will become "an exhaustive listing of every Abortionist presently plying their bloody trade in the USA."
I looked for my own name, and I felt both relief and disappointment when I
found it was not there. I imagined my face, address, telephone number, the
names of my children, on a poster calling me guilty of crimes against
humanity; imagined my name next to the crossed-off name of a dead doctor on
the list. And it was my shaky relief that finally swayed me; I realized with
a jolt exactly how Dr. Hern and Dr. Crist and others have felt when they saw
their face under the "Wanted" signs. I've come to believe these are truly
threats, that it is too late, too terribly late in the abortion debate to use
these tactics anymore. I believe that at least some of the defendants had
every intention of threatening the plaintiffs. But I'm not sure this case has
been good for anyone.

Sallie Tisdale

Sallie Tisdale's most recent book is "Women of the Way: Discovering 2500 Years of Buddhist Wisdom" (Harper San Francisco, 2006). She contributes to magazines such as Harper's, Tricycle, and Antioch Review.

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