The limits of free speech

mwt graphic BY SALLIE TISDALE, February 1999.

PORTLAND -- In a verdict that may change the definition of what is considered constitutionally protected free speech, a federal jury in Portland ruled Tuesday that a virulently anti-abortion Web site and "Wanted" posters constituted death threats against doctors who perform abortions. The U.S. District Court jury ordered more than a dozen defendants to pay $106.5 million in punitive damages and $500,000 in compensatory damages to the plaintiffs, a local Planned Parenthood branch, a women's clinic and four doctors who have appeared on the Web site or the posters. The jury found that while the defendants' words were not direct threats, they constituted threats in the current climate of anti-abortion violence.

As a strong advocate of both free speech and reproductive choice, I found this case equally difficult to embrace or reject. The jury considered as evidence only a few specific instances of speech:

A poster listing the "Dirty Dozen," doctors listed as "guilty" of "crimes against humanity" for performing abortions, along with their photographs, names and personal information. A "Wanted" poster with the name, address and photograph of a doctor who provides abortions. And a Web site called the Nuremberg Files.

The Files has several parts. Photographs of bloody fetuses and fetal body parts. A plea that readers "help collect evidence" for "dossiers" on abortion providers and supporters -- such as photographs and "personal data" of all kinds, including license plate numbers, fingerprints and the names and ages of children. (This evidence, says the site, can be used for future trials against abortionists and for protest work now, such as "revealing to neighbors and colleagues" what the abortionist does.) Readers are exhorted to "Call Your Local Abortion Mill and Ask For Names, etc. Visit the Baby Butcher Shop and Take Pictures (Exercise Creative License)." There are also "especially weird and ghastly abortion horror stories in an evergrowing hall of horror stories." And there is a list: the names of hundreds of doctors, nurses, judges, politicians, police officers, their spouses and other "blood flunkies" who have helped to provide abortions or protected clinics throughout the United States.

The posters and Web site are inflammatory and in many ways harmful. But as a longtime defender of broad protections for speech and expression, I don't think it's useful to claim that speech isn't harmful. We who work with words, in fact, quite want our speech to be powerful and even dangerous, if only to the status quo or conventional wisdom. We want our words to be so strong they move our readers to new ideas -- even to new acts.

The standard free speech motto is that "the best cure for bad speech is more speech." Under such a banner, the speech I find most hateful of all is that which I must most vigorously defend, and it wasn't very long ago that statements supporting a women's right to choose abortion were as reviled as pro-choice people now revile anti-abortion words. To claim that opinions and even dire insults are threatening strikes me as a very dangerous approach to public discourse.

However, I didn't observe Planned Parenthood vs. American Coalition purely from a free-speech point of view. I've written in the national media about my pro-choice beliefs for years -- an action that alone would be enough to put my name on the Nuremberg Files. And I used to be an abortion provider, a nurse in a clinic here in Portland that did little else but abortions -- thousands of them annually. We did a lot of first-trimester abortions, a fair number of second-trimester abortions and a small but steady number of late-term abortions sliding close to the delicate and controversial line between the second and third trimester.

The plaintiffs claimed, and the jury found, that the posters and Web site were, in fact, explicitly threatening in the current climate of anti-abortion violence and murder, and that "reasonable" people would know this. There is no uniform, national standard for what constitutes a "threat" -- the Supreme Court has never dealt with this question, and so various jurisdictions have developed their own definitions. The 9th Circuit Court, where this lawsuit was heard, holds that a "true" threat is made if a "reasonable" person should have known that the listener or audience would perceive the words as a threat.

N E X T_ P A G E: Two doctors on the posters were murdered

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