G.   Ninth Circuit Decisions Stir ‘Nuremberg Files’ Controversy

     The U.S. Court of Appeals for the Ninth Circuit considered the extent of First Amendment protection for the virulently anti-abortion Web site known as “The Nuremberg Files” in two actions during 2001.  A panel of the court decided in March that the Web site is constitutionally protected expression and vacated a district court order that had enjoined publication of the Web site.  The Ninth Circuit then vacated the panel decision in October and set the case for en banc review.

     The Web site at the center of the controversy argued that abortion is murder and stated that “[a] coalition of concerned citizens throughout the USA is cooperating in collecting dossiers on abortionists in anticipation that one day we may be able to hold them on trial for crimes against humanity.”  Hence the name “The Nuremberg Files.”  The Web site contained the names of approximately 200 people it labeled “abortionists,” as well as the names of more than 200 others, including the president and other politicians (identified as “mouthpieces”) and numerous federal judges (described as “shysters”). 

     The Web site also provided identifying personal information -- such as home addresses, phone numbers, and photographs -- of several providers of family planning services.  The Nuremberg Files presented information on some individuals in a “wanted poster” format.  Names of clinic workers who had been murdered by anti-abortion activists appeared on the list with strikes through their names while the names of those who were injured were shaded in gray.  Planned Parenthood of the Columbia/Willamette, Inc., along with providers of family planning services, brought action under federal racketeering law as well as the Freedom of Access to Clinic Entrances Act.  That act prohibits the use of “force or threat of force” or “physical obstruction” to intentionally intimidate any person or to prevent anyone “from obtaining or providing reproductive services.”  18 U.S.C.A. Sec. 248.  They argued that The Nuremberg Files was not protected by the First Amendment because the Web site constituted a threat, not mere advocacy. 

     Although the district court agreed that “the statements at issue do not contain any expressly or apparently threatening language,” it held that it was for the jury to decide, based on the entire factual context, whether the Web site constituted a “true threat.”  Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 23 F. Supp. 2d 1182, 1193-94 (D. Ore. 1998).  In early 1999 the jury awarded the plaintiffs a judgment of $107.9 million.  This was followed by a court order enjoining the defendants in that case from publishing or contributing to The Nuremberg Files, or from providing additional threatening material concerning the plaintiffs “to any mirror site that may be created.”  Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 41 F. Supp. 2d 1130, 1154 (D. Ore. 1999).  The court agreed that the Web site represented a “blatant and illegal communication of true threats to kill.”  Id.  

     The Ninth Circuit reversed this decision on appeal, holding that the Web site is protected by the First Amendment.  The court found that the statements contained in the Web site could not be considered to be “true threats” since they were made in the context of public advocacy, were not directed to any individuals, and were not calls to action.  It compared the admittedly “pungent, even highly offensive” language contained on The Nuremberg Files site to rhetoric that the U.S. Supreme Court found to be protected during the height of the civil rights movement. 

     The court compared the Web site to the speech at issue in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), in which boycott organizers were found to be within their rights under the First Amendment to publicly name individuals who patronized “racist” stores.  The court concluded that “speech made through the normal channels of group communication, and concerning matters of public policy, is given the maximum level of protection by the Free Speech Clause because it lies at the core of the First Amendment.”  Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 244 F.3d 1007, 1019 (9th Cir. 2001).  The case has been controversial from the outset, and six of the nine attorneys general from Ninth Circuit states had urged the court to reconsider the panel decision.  In addition, Sen. Charles E. Schumer (D-N.Y.), author of the Free Access to Clinic Entrances Act, had filed a brief supporting reconsideration.  The Ninth Circuit granted rehearing en banc in October 2001, thus vacating the panel decision, and oral argument took place in December.  Regardless of the Ninth Circuit’s ultimate decision, many observers expect the case to go to the Supreme Court.