Does the First Amendment Cover Threats Against Abortion Doctors?

The "Nuremberg Files" web site was a bloody and unapologetic call to arms for America's anti-abortion movement. The site listed the names, addresses and license plate numbers of doctors who provide abortions, and site administrators drew thick lines through the names of those doctors who had been killed.

Extreme pro-life activists called the site a political protest, protected by the First Amendment.

Pro-choice advocates called it terrorism, illegal under the U.S. Supreme Court's description of "explicit threats of imminent lawless action."

But the courts are not doing very much to clarify the issue. Two years ago, a federal court in Portland, Ore., ruled the web site was not protected by the First Amendment, and ordered the site's organizers to pay $109 million in damages to Planned Parenthood and the four doctors who had sued the site for inciting violence. The site was taken down. Wednesday, the Federal Court of Appeals for the Ninth Circuit overturned that ruling.

No direct threat?

The three-judge panel decided the now-infamous web site is, in fact, protected under the First Amendment because its language does not blatantly authorize or directly threaten violence.

The ruling is a serious blow to the pro-choice groups who mobilized against the site, railing against what they called flagrant invitations to violence against doctors, clinic workers and their families. A mirror version of the original site, which features graphic photographs of dismembered fetuses, is decorated by grisly lines of text dripping with blood, and exhorts visitors to supply the site's manager with any "evidence" of "abortionists' crimes."

"The evidence we collect," the site continues, "will be forwarded to several secure locations so that pro-abortion forces will not be able to destroy the evidence and prevent its future use." The organizers, it's explained, will use the evidence in the doctors' trials, in which they will be charged with "crimes against humanity."

The accusations leveled at doctors who perform legal abortions are heinous: They're called "child-killers" and "murderers." And while there is no explicit request for violence against the "criminals," the constant comparisons with Nazis and the call for information about the doctors' families and friends could undoubtedly be extremely unsettling for those mentioned on the site. But is it harassment or protected speech?

No easy answers

Two years ago, district court judge Robert Jones asked the jury to consider the rash of violence against clinic doctors and workers, including, most recently, New York OB-GYN Dr. Barnett Slepian, who was gunned down in his kitchen by an anti-abortion activist. (James Kopp, the man suspected of killing Slepian, was arrested by the FBI Thursday after two years on the Bureau's most-wanted list.) Soon after Dr. Slepian was murdered, the "Nuremberg" site put a dark line through his name.

This week, the Appeals Court judges took a different view, arguing that there is no direct causal link between the site's plea for "evidence" and the deaths of several doctors and clinic workers listed on the site, and cited the distinction between a direct threat and secondhand encouragement. If the site "merely encouraged unrelated terrorists," Judge Alex Kozinski wrote, "then their words are protected by the First Amendment."

This is by no means the end of the road for this case; it is widely expected to wind up on the Supreme Court's docket sometime in the next year.