Wanted: Free speech

Planned Parenthood wins millions from anti-abortion activists -- but at what cost?

Freedom Watch by Harvey Silverglate

American feminism and its historical ally, political liberalism, took a giant step backward last week, when an Oregon federal jury awarded Planned Parenthood $107 million from the creators of an anti-abortion Web site called "The Nuremberg Files."

In winning its case against the American Coalition of Life Advocates and Advocates for Life Ministries, Planned Parenthood struck a blow against the First Amendment that the Supreme Court has refused to deliver for 50 years. In case after case, the Court has ruled in favor of free speech regardless of whether the advocacy organizations that would-be censors were seeking to shut down were "good" or "bad." To ignore such precedent now is to create a double standard by which free-speech rights are allocated, which will leave the First Amendment an empty shell in hard cases, where protection for free speech really matters. If the Oregon jury's verdict is allowed to stand on appeal, civil-rights advocacy will never again during our lifetimes enjoy the legal protection that has given us desegregation, a woman's right to choose an abortion, and, at least in some states, the rights of sexual minorities to live their private lives free of government meddling.

The American Coalition case bears out the truth of the axiom "Bad cases make bad law." The case involved a civil lawsuit brought by Planned Parenthood and a group of doctors against a coalition of anti-abortion fanatics whose activities are thought by some to encourage the movement's most radical fringe. I advisedly refrain from using the term pro-life; although these defendants have not been shown to be personally involved in the assassinations and bombings that have plagued abortion clinics and providers in recent years, it is clear that few of them are particularly disturbed by the violence.

The American Coalition's Web site surely pushes the notion of free speech about as far as it could go under the current standard. The Nuremberg Files listed by name the people whom the activists termed "baby butchers"; it publicized home addresses and license-plate numbers of abortion doctors, and even named their spouses and children. The site's title was meant to suggest that the "murderers" of "unborn babies" would someday be tried in tribunals not unlike those that judged Nazi war criminals after World War II.

All that is undeniably protected by the Constitution; but the American Coalition crept up to the frontier of First Amendment law by displaying abortion providers on "Wanted" posters, and by putting a line through the names of those who had been slain. (The names of those merely wounded in the line of duty were displayed in lighter-colored type.) The message was clear: the site's sponsors appeared to be advocating and encouraging violence. And, by supplying addresses, they may even have facilitated murders (although, for that matter, the telephone book might be seen as doing the same).

Planned Parenthood and its allies pronounced their victory a blow against "domestic terrorism." However, they skirted the obvious fact that the American Coalition was not committing terrorism but advocating it. These anti-abortion activists were not the ones who shot martyrs such as Dr. Barnett Slepian, assassinated last October in his home near Buffalo, New York. They may have been the cheering section. They may have made the lives of Slepian and his colleagues more difficult. They may have contributed to an atmosphere that encouraged murderous fanatics. But such activities, when carried out by those on the front lines of the civil-rights struggles that liberals, feminists, and anti-war protesters have championed for decades, have been held by the civil-rights activists -- and by the courts -- to be constitutionally protected. To change the rules now, just because we loathe those who seek their protection, is the rankest type of hypocrisy, and it is self-defeating in the long run. History tells us that this ill-considered verdict will not stop abortion-related violence; only arrests and prosecutions of the actual assailants will do that. Meanwhile, we will have killed off a piece of the First Amendment and gotten nothing worthwhile in return.

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To understand the profundity of the change that could come about if the jury's verdict is upheld, we need only look back at the cases that have molded the modern definition of protected speech.

Beginning in the 1950s, with the advent of the internal security investigations that marked the McCarthy era, the courts have been called upon to confer protection on all manner of ugly ideas, including advocacy of violence. In 1961, the Supreme Court pronounced in the case of Noto v. United States that "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." In 1969, the Court issued its landmark opinion Brandenburg v. Ohio, involving a criminal prosecution of a Ku Klux Klan leader who had been filmed telling a crowd of hooded Klansmen, some of whom carried firearms, that "it's possible that there might have to be some revengeance [sic] taken" against Negroes and Jews. The Court reminded the nation that even such loathsome creatures as hooded Klansmen may legally engage in such rhetoric "except where such advocacy is directed to inciting or producing imminent lawless action." The emphasis was on imminent.

The justices continued to apply that principle in subsequent cases. Advocacy of violence in a lecture hall, a classroom, or a union hall was tolerable, but exhortations to violence in the midst of a frenzied crowd where the targeted victim was nearby ("There he is -- let's lynch him") was unlawful. Throughout the '60s and '70s, the Court protected overheated speech in labor-organizing disputes, civil-rights demonstrations, and anti-war rallies, and even in the case of a draft resister who was charged with threatening the president's life when he responded to his draft notice by telling a crowd: "I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ."

The situation most like the current American Coalition controversy occurred in a 1982 case, N.A.A.C.P. v. Claiborne Hardware Co., in which the Supreme Court unanimously overturned a series of judgments by the state courts of Mississippi.

In 1966, the Mississippi NAACP, with the support of its national parent organization, launched a boycott of white merchants in Claiborne County, Mississippi. The boycotters sought a variety of reforms, including more-respectful treatment of black customers and more job opportunities for black workers. The local chapter and the boycott were led by the legendary civil-rights leader and NAACP Mississippi field secretary Charles Evers, brother of the martyred Medgar Evers.

When the boycott began to take its toll, the merchants sued the local and national organizations and their leaders, including Evers. The jury returned a verdict in favor of the merchants, upheld by the state courts, that would have bankrupted the state and national organizations. The case seemed a hard one because the boycotters' activities included not only clearly lawful association and advocacy, but also intimidation, threats, and violence. In one speech, Evers was found to have told a crowd of black listeners: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court also noted the following activity, which is difficult to distinguish from the Web site maintained by the American Coalition:

Individuals stood outside of boycotted stores and identified those who traded with the merchants. Some of these "store watchers" were members of a group known as the "Black Hats" or the "Deacons." The names of persons who violated the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the "Black Times." As stated by the [trial judge], those persons "were branded as traitors to the black cause. . . . "

Numerous incidents of violence against those who violated the boycott were described, including shots fired at a house, a brick thrown through a windshield, property damage, slashed truck tires, a beating, and threatening phone calls. Nevertheless, the Court insisted that legal liability be imposed not on the organization but rather on the perpetrators of the violence. When Mississippi argued that at least the "store watchers" and "Black Hats" should be found liable, the Court responded:

[T]here is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others. . . . [M]ere association with either group absent a specific intent to further an unlawful aim embraced by that group is an insufficient predicate for liability.

The Court noted that "in the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended." Yet Evers's speech hyperbolically threatening to "break the damn neck" of any boycott violator was protected, because it did not constitute "fighting words." "Fighting words" were defined by the Court as words "that provoke immediate violence" or "create an immediate panic." Advocacy may be punished only when it "is directed to inciting or producing imminent lawless action."

This, then, is the line that separates mere advocacy or encouragement from a virtual instruction to commit violence: the immediacy of the reaction and the directness of the threat. This is what separates the constitutionally protected exhortation "It would be nice if our enemy were killed" from the illegal direction "Go out right now and kill the enemy." As the Court concluded in its unanimous decision:

. . . Evers' addresses did not exceed the bounds of protected speech. If there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence. But any such theory fails for the simple reason that there is no evidence -- apart from the speeches themselves -- that Evers authorized, ratified, or directly threatened acts of violence.

"A massive and prolonged effort to change the social, political, and economic structure of a local environment," the Court concluded, "cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts." Put another way, the justices admonished: "A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees."

The goal of all people of goodwill -- especially those dependent on the First Amendment to protect their own political activities -- should be to hunt down the reptiles who have threatened or committed violence against abortion providers, not to punish those pursuing a broader political agenda through organization and advocacy. Planned Parenthood does none of us, or itself, any favors by attacking the freestanding trees.

Harvey Silverglate is the coauthor, with Alan Charles Kors, of The Shadow University: The Betrayal of Liberty on America's Campuses (Free Press).