May/June, 1999 Volume XIII Number 6

Anti-abortion site doesn’t cross the line

By Robyn E. Blumner

Anti-abortion protesters who employ tactics similar to those used by the civil rights movement are getting a very different reception in court.
Nothing could illustrate this more starkly than the out-of-sight $107-million in damages awarded last week to Planned Parenthood and a group of doctors who perform abortions. Fourteen anti-abortion activists were found to have violated the federal Freedom of Access to Clinic Entrances Act by threatening abortion providers with physical harm, even though there were no explicit threats of violence at issue.
The federal jury in Portland, Oregon, found that the protesters broke the law by putting up “Wanted” posters charging abortion doctors with “‘crimes against humanity,” and by creating a Web site titled “The Nuremberg Files” that lists names, addresses and other personal information about abortion doctors and strikes through their names with a black line if they have been killed. The reason for the jury verdict was not that the doctors had been harmed or even that the obnoxious Web site in itself threatened violence. The reason was that the material made the doctors feel threatened in the context of the ongoing violence against abortion providers, and, under the law, all the jury had to discern was whether it was reasonable for the authors to have known they would.
Yet, if First Amendment precedent had been followed, this case would never have even gotten in front of a jury, says UCLA law professor Eugene Volokh, who specializes in free speech law. That’s because it closely resembles a case in which the U.S. Supreme Court granted constitutional protection to speech that created a menacing atmosphere in the context of a broad public debate.
In the case of NAACP vs. Claiborne Hardware, local leaders in Claiborne county, Mississippi, refused to respond to the demands of black residents. Those demands included desegregating public schools, hiring black police officers and adding blacks to juries. In response, the NAACP organized a boycott of white-owned businesses, which lasted from 1966 to 1973.
To pressure fellow black citizens to respect the boycott, Charles Evers, the NAACP field secretary in Mississippi, made a number of fiery speeches, in which he warned that blacks would be answerable to him if they patronized white businesses. According to one account, he told his audience, “Uncle Toms” who broke the boycott would “have their necks broken by their own people.”
In addition to the threatening speeches, a group of “enforcers” or “black hats” was organized to stand guard at white-owned businesses and record the names of blacks frequenting them. Those names were then published in the Black Times and read aloud at NAACP meetings. Although for most boycott violators the extent of their punishment was being called demeaning names, for as many as 10 people reprisals took a more violent form. In one case, a man was beaten, and, in another case, a man was whipped with his pants pulled down.
The businesses sued over the boycott, claiming, among other things, that the use of violence, intimidation and an atmosphere of fear constituted tortious interference in their businesses. Though they won a large damage award in Mississippi courts, the case was overturned by the U.S. Supreme Court. In absolving the NAACP, Evers and all other defendants of liability, the high court declared that the “emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech,” nor did the practices of the “black hats” in publicly naming boycott violators.
The court concluded that the only people who should be liable for damages were those who specifically participated in the violent activities or incited imminent lawless action. And it reiterated that “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.”
“To rule otherwise,” said the court, “would ignore the ‘profound national commitment’ that ‘debate on public issues should be uninhibited, robust, and wide open.’”
Compare that result to the one obtained in the Oregon courtroom -- where the inflamed and impassioned rhetoric of anti-abortion activists speaking on a divisive public issue was found to have no sanctuary in the First Amendment.
Naming names of abortion doctors was deemed an implied threat of violence, but naming civil rights boycott violators was free speech. The explicit threats of violence made by NAACP officials were placed in the appropriately broader context of speech; the Web site of anti-abortion activists was deemed assaultive.
So what does this mean for the future of activism? Does it mean that Greenpeace can’t post a list of polluting companies’ CEOs? Does it mean that Nazi hunters can be barred from publishing the names of former Nazis who are living in this country? Does it mean convicted sex offenders can collect millions of dollars from anyone who alerts the neighborhoods where they now live? Since, in each instance those named may feel physically threatened, and the publishers of their names could foresee that.
The future of freedom of speech depends upon courts caring less about how a listener receives a message than what a speaker meant to convey. The Web site and posters should be protected regardless of whether abortion doctors felt at physical risk, as long as its authors never intended to incite violence. But the Oregon ruling lets the listeners’ reactions to speech control what gets said. It is now up to the speaker to temper his remarks to avoid being misconstrued -- or face bankruptcy.
Good thing this wasn’t the standard during the civil rights movement, or there might never have been one.

Robyn Blumner is a former Executive Director of the American Civil Liberties Union in Florida.

"Still radical after all these years"
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Anti-abortion site doesn't cross the line