A THREAT BY ANY OTHER NAME:
Do The Nuremberg Files Cross The First Amendment Line?

By SHERRY F. COLB
Wednesday, Dec. 19, 2001

On Tuesday, December 11, an en banc panel of the Ninth Circuit Court of Appeals heard argument in Planned Parenthood v. ACLA. This important case raises the question of when speech qualifies as a threat falling outside the protection of the First Amendment.

Facts and History

The ACLA case arose when a group of doctors who perform abortions sued the American Coalition of Life Activists ("ACLA") for illegally threatening the doctors' lives and safety in violation of federal law. ACLA had designed posters listing the names and addresses of abortion providers. It had also authorized and directed the creation of a web site on which were listed the names, addresses, and photographs of providers and other perceived supporters of abortion.

The web site and posters additionally indicated when one of the providers listed had been killed or wounded in the war on abortion. If a provider was killed, his name would be crossed out. For example, Bernard Slepian, a doctor murdered in his Cherry Hill home for performing abortions, had his name crossed out. Those on the list who had been wounded in the struggle had their names faded in gray.

In 1999, an Oregon jury agreed with the doctors and awarded actual and punitive damages in the amount of $107 million. The trial judge also issued an injunction against ACLA's posters and web site. ACLA subsequently appealed the award to the Ninth Circuit. Judge Alex Kozinski wrote an opinion for the court ruling that ACLA's activities constituted protected speech under the First Amendment. Accordingly, the three-judge panel reversed both the damages award and the injunction.

The panel noted that "[i]f defendants [had] threatened to commit violent acts, by working alone or with others, then their statements could properly support the [jury's] verdict"; the First Amendment freedom of speech would not protect real threats of violence.

However, the panel continued, "[p]olitical speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party."

The court concluded that evidence of ACLA's activities did not support a finding that the organization had threatened violence against abortion providers. In response to this decision, the plaintiffs petitioned for rehearing en banc, and the Ninth Circuit granted its petition. Now the en banc panel will decide whether the jury verdict and court injunction may stand.

Interpreting ACLA's Speech and Actions

In deciding this case, much will turn on how one could reasonably have interpreted the actions and words of ACLA.

If ACLA had left notes in the mailboxes of abortion providers which read "We'll kill you and your children unless you stop murdering unborn babies," these notes would be actionable -- both civilly and criminally -- as threats. If ACLA had instead given a press conference on television saying that abortion is murder and should become illegal, this speech would receive the full protection of the First Amendment and could not be penalized with either civil or criminal sanctions. The court must therefore decide which of these scenarios more closely approximates the actual conduct of ACLA.

ACLA articulated a number of lawful purposes behind its posters and its web site. The lists, it claimed, would enable viewers and site visitors to persuade the identified providers to stop performing abortions. In addition, the lists would facilitate the efforts of viewers and site visitors to have the providers stripped of their medical licenses.

Finally, ACLA asserted that the lists would eventually form the basis for war-crimes prosecutions, once the surrounding society changed its view of abortion and came to see providers as perpetrators of atrocities comparable to the Nazi program to exterminate the Jews of Eastern Europe. (Because of the analogy between the Holocaust and abortion, ACLA called the web site on which providers' information was listed the "Nuremberg Files.")

What Did the Lists Mean?: The Three-Judge Panel's View

The original Ninth Circuit panel accepted ACLA's argument that the lists represented speech rather than threats. In support of its view, the panel emphasized three points. First, people who might carry out violence after being inspired by the Nuremberg Files would not be agents of ACLA. They would simply be listeners who had found the ideas compelling.

Second, rather than encouraging the use of violence, ACLA had specifically promoted lawful means of protecting the unborn.

Third, ACLA had spoken in a public forum, a context in which political speech -- the core of what is protected by the Constitution -- is often prone to hyperbole.

As Judge Kozinski and his panel saw it, ACLA was speaking about lawful objectives and encouraging lawful action. Its audience, however, may have included some extremists, unrelated to ACLA itself except in sharing its abhorrence for abortion.

Those extremists, in turn, might be willing and ready to commit acts of violence, particularly against the providers who happened to have been listed. But this is nothing more than an unfortunate (if foreseeable) consequence of publicly airing controversial and strongly held views. Speakers cannot normally control the behavior of their audiences.

An Alternative View of What the Lists Meant

The jury might have -- quite reasonably -- viewed the evidence differently, however. One could, for example, understand the calls for lawful action as mere euphemism meant to disguise the purpose of the site and endow ACLA with plausible deniability. On this interpretation -- suggested by the crossed-out and faded names -- the posting of the lists was really a call for assault and murder.

Consider the following analogy. An organized crime figure approaches a government witness the day before the witness is scheduled to testify against the figure's friend. The figure says to the witness: "You might want to think about staying home tomorrow. Tragic car accidents have been known to happen in this neighborhood."

The witness responds, "Are you threatening me?"

"No," replies the figure. "Of course not. That would be illegal. I'm just saying that there might be an accident tomorrow. No one can predict exactly when an accident might happen, right?"

On its face, the figure's words do not order the witness to do anything. The speaker simply suggests that the witness "think about staying home." In most contexts, such a statement would be innocuous. Mentioning accidents, moreover, could simply be a matter of prediction or general caution. Perhaps traffic in the neighborhood is such that car accidents are common. Indeed, when asked whether there is any threat, the figure specifically denies the charge and adds that such a threat would be illegal.

Despite the denial, however, a jury might nonetheless conclude that the speaker was threatening to do violence to the witness if he testified the next day. A well-chosen context can alter the meaning of the words we say.

In the context of the Nuremberg Files, one could read the list of names, addresses, and photographs as expressing the following sentiment: We view people who perform or protect the performance of abortions as requiring "persuasion" from those who share our assessment of their work as atrocity and murder. Here is a list of such people needing persuasion, and here are their addresses and pictures of them. Find them, threaten their lives, and hurt them. If you manage to kill one of them, we will honor your deed by crossing out the name of the felled baby-killer. If you wound one of them, we will still give the deed some acknowledgement through the use of a gray background. We encourage you to act on your convictions and rid the world of the scourge of abortion.

On this interpretation, of course, the lists look a great deal like threats. A provider who learns that he is included in the Nuremberg Files could therefore reasonably fear that he has been threatened with death. As it turns out, that is exactly how abortion providers understood the words of ACLA.

Others took a similar view of the facts. Upon learning of the list, for instance, the U.S. Marshals offered their protection, and the doctors began to wear bulletproof vests. The record reveals that both the providers and the police perceived the Nuremberg Files as a "hit list" and were ready to devote significant resources to protecting its targets from what they viewed as an active death threat.

The "No Direct Violence" and Public Forum Arguments

The jury may have read the Nuremberg Files in this way. If it did, then by rejecting the jury's verdict, the appellate court failed to give the appropriate level of deference to a trier of fact with first-hand knowledge of witnesses and evidence.

Still, Judge Kozinski might point out, ACLA was not itself carrying out the violence. On reflection, however, this fact should not make a difference.

On the alternative reading of the lists articulated above, ACLA, while not committing violence itself, was soliciting others to do so. And if it was doing this intentionally (as the jury might well have concluded) then it could also be said to have aided and abetted any subsequent acts of violence. ACLA would, in other words, by its very invitation -- if the invitation were intentional -- have made agents of those who chose to accept its proposition.

Another analogy is helpful: If Jane Doe gives a hit man who owes her a big favor her target's home address, intending thereby to encourage and assist in the killing of the target, then Jane has directly implicated herself in the murder that follows. If there is no murder, then she is guilty of criminal solicitation. Deliberately encouraging and facilitating an attack is not protected speech, and punishing such conduct is not censorship.

Finally, the Ninth Circuit panel's suggestion that the web site was a public forum where hyperbole is to be expected is not compelling. Unlike comments yelled out at a raucous public gathering in the town square or on a picket line, the content of a web site may easily be revised upon cool reflection to correct any hyperbole. If it remains stable over time, then, as the Nuremberg Files did, with updates to nurture continuing interest, it can be understood to represent a well-thought-out agenda.

Terror In Today's World

We live in complicated times. A nod of the head can be enough to initiate mass slaughter in a faraway state or country. For a while after September 11, a fear of just such a possibility prevented news organizations from airing Osama bin Laden's speeches. We must be careful in such times not to censor unpopular speech, whether it is anti-abortion or anti-America. The answer to offensive speech is more speech, not damages awards.

To address the threat of terrorism effectively, however, whether that threat is domestic or foreign, we must not fall victim to formalism. And it is indeed formalism to fail or refuse to recognize a threat for what it is, though it has been camouflaged with a wink and a nod.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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