A Case Testing the Limits of Free Speech

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Let's say you're a doctor who performs abortions. One day, the FBI calls you and informs you that your name, address, license plate number and children's names have appeared on a web site called "The Nuremberg Files." This "wanted" list has posted the names of other doctors, three of whom have been killed by anti-abortion activists. The federal agents advise you to buy a bulletproof vest and equip your office with bulletproof glass. You take the advice, and call a lawyer, who deconstructs the situation this way: Does the web site in question pose an actual threat, or is it merely an exercise in First Amendment rights?

According to the jury in a 1999 case brought against the authors and supporters of the web site, the site constitutes a threat, and is therefore illegal. That jury awarded $109 million to the plaintiffs, which included four named doctors and Planned Parenthood. The ruling is currently facing an appeal, and Tuesday, the U.S. Circuit Court of Appeals offered both parties two days to consider a settlement agreement. Legal experts consider this case to be a shoo-in for the Supreme Court's docket.

This case, broadly put, is based on perception. If you're one of the doctors whose name appears under the dripping-blood graphics of the now-defunct site, you're likely to perceive the situation as threatening. But if you're an anti-abortion activist, you're likely to point to the definition of "unlawful threat," which the Supreme Court has ruled is "explicit language likely to cause imminent lawless action," and argue that your First Amendment rights protect language, even language some may find offensive. But is this just offensive language? Or is it essentially a call to arms — and therefore not protected under the First Amendment? Comparisons have been made with someone who shouts "Fire!" in a crowded theater, thus causing a panic — speech that is not protected.

Lawyers for the plaintiffs, in an attempt to link the site's language directly to past violence, point to the history of radical anti-abortion terrorism: A doctor's name goes up on the site, and sooner or later he's shot dead. His name is then crossed off. It's that pattern, Planned Parenthood et al. argue, that establishes a direct causal relationship between the site's apparent directive and actual bloodshed. The defendants argue there's nothing in the site's language that incites violence, that the list is a purely informational vehicle for anti-abortion activists.