Protesting Abortion

Free speech or no?

Since 1993 there have been seven murders and fourteen attempted murders of abortion-clinic personnel, as well as more than two hundred clinic bombings and arsons. In this atmosphere one can readily understand that those who work in abortion clinics feel physically endangered. But by whom? By protesters who speak out against what happens in the clinics? Where should the line be drawn between protesters’ free-speech rights and what the law calls "true threats" or extortion? Does a website that included names and addresses of abortion clinics and doctors and that offers cash rewards for the prevention of abortions amount to threatening and provocative speech beyond the protection of the First Amendment?

A recent case in Portland, Oregon, imposed civil liability on anti-abortion protesters for activity that abortion providers found threatening. A local chapter of Planned Parenthood and individual physicians who provide abortions in Planned Parenthood clinics brought their suit under both the Freedom of Access to Clinic Entrances Act (1994), which makes it illegal to use "force or threat of force" against abortion clients or providers, and the Racketeer Influenced and Corrupt Organizations (RICO) law. The primary focus of the suit was a website called "The Nuremberg Files" (found on the Web at christiangallery.com/atrocity), operated by the principal defendants, the American Coalition of Life Activists (ACLA). The website featured the names and addresses of abortion clinics and doctors, and offered cash rewards for the prevention of abortions. Deciding that ACLA had gone beyond constitutionally protected political speech by threatening abortion providers, the jury ordered the coalition to pay $107 million in damages.

In recent times, the Supreme Court has set a high standard of protection for political protest. In Madsen v. Women’s Health Center (1994), the Court disallowed an injunction preventing abortion opponents from approaching persons seeking services at an abortion clinic unless there was "evidence that the protesters’ speech is independently proscribable (that is, ’fighting words’ or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm." The Court added in Schenck v. Pro-Choice Network (1997) that there is no legitimate government interest in protecting the "right of the people approaching and entering [clinics] to be left alone" on the public streets, traditionally open to all sorts of communications. Still, the question of what constitutes a threat remains slippery. Some lower courts have diluted the idea of a threat to mean virtually any words that do not support the tentative decision of a woman to have an abortion.

Anti-abortion protest is political speech, normally to be accorded broad protection. Think of tough labor organizers urging scabs not to cross a picket line. In a host of labor law decisions, the Court has protected some pretty rough talk as long as there was no physical violence. Sometimes the Court has even understood that name-calling can lead to blows, and has looked the other way to preserve what Justice William Brennan described as "the central meaning of the First Amendment...the ’profound national commitment’ that ’debate on public issues should be uninhibited, robust, and wide open.’"

For example, the Court dealt sensibly with a famous economic boycott called by a Mississippi chapter of the NAACP from 1966 to 1973 to protest the failure of local officials to desegregate public schools, hire black police officers, or include blacks on juries. Charles Evers, the NAACP field secretary, made a number of fiery speeches, warning "Uncle Toms" who broke the boycott that they would "have their necks broken by their own people." "Enforcers" stood guard at the doors of boycotted businesses to take down the names of blacks frequenting them. The names were published in a local black newspaper and read aloud at NAACP meetings. For most boycott violators, punishment stopped at being called demeaning names, but sometimes physical coercion followed.

In NAACP v. Claiborne Hardware (1977), the Court reversed the huge damage award that the stores had won against the civil rights organization in the state court. Evidently the NAACP’s physical intimidation of the boycott breakers was not significant enough to forfeit the group’s free speech rights or force them to pay disproportionate financial damages. The Court was willing to countenance clearly threatening language in order to protect the NAACP’s vital role in promoting civil rights activity.

It is difficult to extend constitutional protection to the message of the NAACP and withhold it from the message espoused by abortion protesters. Some simply pray silently in front of a clinic. Others express their views by holding a placard either with a slogan like "An abortion stops a beating heart," or with a disturbing photograph. But we shouldn’t imagine that on an issue as deeply divisive as abortion those who take their protest to the streets—on either side of the divide—will always be polite. Or logical. ACLA publishes A Time to Kill, a short book in which one of the named defendants, Michael Bray, argues that the use of force is legitimate to protect the lives lost in abortion facilities, a position abhorrent to those of us committed to a consistent ethic of life.

Still, the courts will get into a hopeless morass and our public life will be enfeebled unless speech of all sorts is protected, except—as the Court ruled in Brandenburg v. Ohio (1968)—where it is actually likely to result in imminent danger of violence. Planned Parenthood does its cause no service by complaining about the distribution of bumper stickers urging the execution of abortionists as murderers, or about "Wanted" posters that do not specifically identify doctors or clinics by name. However disturbing these forms of communication might be, they do not constitute true threats and should be protected by the First Amendment.

More worrisome is Planned Parenthood’s use of the federal RICO statute, designed as a weapon against organized crime, to silence and financially bankrupt their political adversaries. As the feminist author Wendy Kaminer has written, the RICO statute "was not supposed to brand ideologically motivated activists as racketeers or extortionists." The most dubious legal claim advanced by Planned Parenthood is that ACLA violated RICO by maintaining "The Nuremberg Files." As its title suggests, the website expects that abortion providers "will be charged in perfectly legal courts once the tide of this nation’s opinion turns against the wanton slaughter of God’s children." Recording information about abortion providers for the purpose of bringing them to justice in a procedurally fair manner seems clearly within the realm of protected speech. ACLA’s website also published the names and addresses of 225 doctors who perform abortions. The names of those classified as "working" were printed in black font, those "wounded" appeared in gray, and fatalities had a strikethrough across their name. Planned Parenthood and their doctors testified that they feel threatened by this, as though ACLA had identified targets on a hit list. A spokesman for ACLA defended the "fatality" notice as merely reportorial. Currently, the website no longer publishes a list of names, but still seeks help in gathering evidence identifying abortion providers and "judges and politicians who pass or uphold laws authorizing [abortions] or oppressing prolife activists."

Now that the court has allowed a huge penalty (RICO permits courts to triple damage awards) against the ACLA website on the ground that it "threatens" life, the appellate court will have to decide whether there was enough of a serious threat to extinguish the protection of the First Amendment. ACLA argues that their statements were intended to protect, not to threaten, life. The trial judge determined that a speaker’s intent is irrelevant, instructing the jury under the current standard in the Ninth Circuit that a threat is determined "objectively" by focusing on what a reasonable and informed listener would make of the words. But there are different standards in various circuits. For instance, the Second Circuit in New York requires jurors to take a speaker’s intent into account, ruling that free-speech protection can only be revoked if "the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." Unless the Ninth Circuit modifies its view, this case may be headed for the Supreme Court to resolve the apparent conflict between the circuits. The Court has not favored congressional efforts to police the Internet, striking down the Communications Decency Act in Reno v. ACLU (1997). But if the high court takes this case, the radical rhetoric of the anti-abortionists may further complicate things. In the past the website has included among the "abortionists’ shysters" six justices: Sandra Day O’Connor, David Souter, Anthony Kennedy, John Paul Stevens, Ruth Bader Ginsburg, and—most curiously—Byron White (the retired justice who denounced Roe in a stinging dissent as an "exercise in raw judicial power"). Time will tell whether life-tenured justices also feel threatened by such talk.

Published in the 1999-03-26 issue: 

Edward McGlynn Gaffney Jr., a frequent contributor, is professor of Law at Valparaiso University.

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