"It is difficult to prevent the communication of truthful information in our society," says Cohen, "because the First Amendment protects most types of speech. And people are clearly allowed to talk about doctors." At the same time the courts do recognize limits to free speech. "Defendants cross the line when it can be shown that their speech encourages, incites and facilitates violence," says Cohen. "So the more Planned Parenthood can show the site is designed to encourage acts of violence against doctors, the more likely it is the group can prevail." But that is a high evidentiary burden to meet, particularly in a legal system that gives strong preference to the free dissemination of information. Whichever way this case goes, it is likely to become a landmark, and may ultimately have to be resolved by the U.S. Supreme Court.
When does an advocacy web site cross the line between providing information and inciting violence? In Portland, Ore., a federal trial began on Thursday to determine the viability of a web site titled the Nuremberg Files, a graphic antiabortion site (www.christiangallery.com/atrocity) that lists the names of abortion providers around the country and asks for help in gathering information about them. In some cases the site displays photos and other identifiers, such as addresses and phone numbers, as well as names and birthdates of family members. Planned Parenthood and five doctors accuse the site of being a not-so-thinly-veiled hit list that should be shut down. The web site maintains it is engaging in free speech protected by the First Amendment. "This will be a tough case to resolve, and Planned Parenthood faces an uphill battle," says TIME senior writer Adam Cohen.