Are there limits to free speech in a democracy? Of course there are. We all know that you can’t for example, shout “FIRE!” in a crowded theater.
In early February 1999, a federal jury in Portland, Oregon ordered the creators of a Web site to pay US$500,000 in compensatory damages and US$106.5 million in punitive damages to victims of deadly threats published by the Web site. Ironically, the creator of the Web site, Otis O’Neal Horsley Jr. was not named as a defendant in the case, even though he took full responsibility for the content of the site during the trial.
The anti-abortion Web site, The Nuremberg Files contained a series of American frontier-style “wanted” posters listing the names and pictures of abortion providers, accusing them of “crimes against humanity.” At least seven abortion clinic employees have been killed and more than 250 clinic bombings and arsons have been reported in the last few years.
While the 14 defendants argued that nothing on the Web site advocated violence, the contested material included names, addresses, and license-plate numbers of abortion providers and their families. When a listed provider is killed, the Web site displays a line drawn through the provider’s name. When a listed provider is wounded, the Web site displays the name in gray.
The plaintiffs in the case—the Portland affiliate of Planned Parenthood and a group of four doctors—claimed that the Web publication amounted to “domestic terrorism.” The defendants countered that they were akin to the civil rights activists that fought racism three decades ago.
“The jury saw anti-choice ‘wanted’ posters for what they are—a hit list for terrorists,” Planned Parenthood president Gloria Feldt, said in a statement. “Whether these threats are posted on trees or on the Internet, their intent and impact is the same: to threaten the lives of doctors who courageously serve women seeking to exercise their right to choose abortion.”
The jury found that the defendants’ speech was not a direct threat but that the speech constituted a threat in the current climate related to anti-abortion violence.
The case was brought to trial under the Freedom of Access to Clinic Entrances Act of 1994, which makes it illegal to use “force or threat of force” against anyone who either seeks or provides abortion services. Unlike similar cases, which were also brought to trial under the same law, the Portland case did not involve physical threats or attacks. In fact, this is the first time that speech not directly threatening has been condemned based on social context alone.
In the 1969 case of Watts v. United States, a court held that a protester of the Viet Nam War arrested for threatening the President of the United States was not guilty because of the social context in which the threat took place. The protester’s speech, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ,” was found to be protected political speech. Similarly, dramatic and even hateful speech has been found to be protected in other cases because they are rhetoric and not true threats.
For many First Amendment activists the case revolving solely around speech—even speech that is aggressive and even offensive—is disturbing and some fear the possibility of limits on public discourse.
The defendants have vowed to appeal the verdict and have stated that they will not pay the ordered award. In past decisions, Planned Parenthood has been able to seize assets of abortion opponents after similar, but much smaller, awards.
For those who advocate free speech, this is an especially troubling case. Even for the most ardent free speech supporter, it’s not reasonable to claim that speech isn’t harmful. Nonetheless it’s very difficult to draw the line at which speech is protected and which isn’t. Especially for anyone who works with words.
On the other hand, as soon as the posters were released in 1995, the FBI contacted the individuals on the list and advised them to protect themselves. During the trial, one of the plaintiffs continued to wear his bullet-proof vest even while testifying.
Shortly after this article was first published, The Nuremberg Files web site was shut down by its Internet Service Provider host.
Few aspects of public life are definable in contrasting terms of black or white, right or wrong, true or false. The absolute rights guaranteed by the Constitution, however, are defined precisely in such contrasting terms. Either we will have freedom of speech or we will not. There is no room for compromise or shades of gray.
Can words be hurtful? Without a doubt. Is that any reason why speech—even speech that is an incitement—should not be protected? Absolutely not.
Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis recognized this in their 1925 dissenting opinion in the Gitlow v. New York case. Gitlow had been convicted of distributing material calling for “revolutionary mass action” to replace the government of the United States. The Supreme Court upheld the conviction.
“It is said that the manifesto [by Gitlow] was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth,” wrote Holmes and Brandeis in their dissenting opinion. “The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result…. Eloquence may set fire to reason. But whatever may be said of the redundant [Gitlow] discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” (Emphasis added.)