G.  Nuremberg Files ‘Wanted Posters’

Not Protected by First Amendment

 

      The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, reversed an earlier panel decision and held that portions of the virulently anti-abortion Web site known as “The Nuremberg Files” and “wanted posters” that targeted abortion service providers are “true threats” and unprotected by the First Amendment.  The en banc decision reaffirmed the district court’s order enjoining the activities of anti-abortion protesters.

 

Background

      The Web site and protest posters 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 “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 of the United States and other politicians (identified as “mouthpieces”) and numerous federal judges (described as “shysters”). 

      In addition to lists of names, the Web site also provided identifying personal information -- such as home addresses, phone numbers, and photographs -- of several providers of family planning services.  The protesters also presented information on some individuals in a “wanted poster” format.  On the Web site, 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” and “totally reject[ed] the defendant’s attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from providing abortion services.”  Id. at 1154.  The court enjoined the defendants 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.”  Id.

 

Appeal to Ninth Circuit Panel

      A panel of the U.S. Court of Appeals for the Ninth Circuit reversed this decision, 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 “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.  It 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).

 

En Banc Reversal

      The panel decision was reversed by the Ninth Circuit en banc by a vote of 6 to 5.  Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc).  The court held that the “wanted posters,” along with the personal information about clinic workers posted to the Web site, were “true threats” and unprotected by the First Amendment.  In the majority’s view, the critical factor was not what the protesters intended by the wanted posters, or even the actual words on the posters, for as the opinion made clear, “differences in caption or words are immaterial because the language itself is not what is threatening.”

      Rather, the majority held that the “pattern” in which the posters appeared coupled with the fact that other abortion providers had been killed, transformed the posters into something of a symbolic threat.  The threatening nature of the message “was reinforced by the scorecard in The Nuremberg Files.”  Id. at 1085.  The effect of the ruling with respect to The Nuremberg Files (or any mirror Web site) was to uphold the injunction prohibiting publication of personal information about particular persons “with the specific intent to threaten them.”  Id. at 1087-88 (majority op.). 

      For the dissenters, the majority failed adequately to explain why its test would not apply equally to Charles Evers’s inflammatory pro-civil rights rhetoric that the Supreme Court held was protected speech in NAACP v. Claiborne Hardware Co.  Judge Alex Kozinski stressed, as he had in the vacated panel decision, that Mr. Evers gave speeches in which he said that black residents of Claiborne County “who traded with white merchants would be answerable to him” and that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”  Id. at 1090 (Kozinski, J., dissenting).

      Boycott organizers in that case had collected names of those who violated the boycott and publicized them to the community at meetings and in the local newspaper.  Id. at 1093-94.  Judge Kozinski was unable to find any prior case in which “statements charged with political content and delivered in a public arena” were found to be true threats, and he wrote that the “crushing liability verdict” affirmed by the majority would not be lost on others “who would engage in heated political rhetoric in a wide variety of causes.”  Id. at 1100 & n.15.

      Judge Marsha Berzon pointed out in a separate dissent that the speech at issue in Planned Parenthood is, “on its face, clearly, indubitably, and quintessentially the kind of communication that is fully protected by the First Amendment,” and “to perceive a threat, one must disregard the actual language used and rely on context to negate the ordinary meaning of the communication.”  Id. at 1110 (Berzon, J., dissenting) (emphasis in original).  She noted that “[t]his case is proof positive that hard cases make bad law, and that when the case is very hard -- meaning that when competing legal and moral imperatives pull with impressive strength in opposite directions -- there is the distinct danger of making very bad law.”  Id. at 1101 (emphasis in original). 

      Judge Stephen Reinhardt agreed in a brief opinion, and noted that the majority opinion rejected “the concept that speech made in a political forum on issues of public concern warrants heightened scrutiny.”  If this rejection is allowed to stand, he wrote, it will “significantly weaken the First Amendment protections we now enjoy.”  He distinguished the majority’s “threat” analysis by noting the “fundamental tenet of First Amendment jurisprudence that political speech in a public arena is fundamentally different from purely private speech directed at an individual.”  Id. at 1088 (Reinhardt, J., dissenting).

      Many observers expect the Supreme Court to review the Ninth Circuit holding.  In December 2002, the Supreme Court invited the solicitor general to file a brief expressing the views of the federal government on the case. 

 

--Robert Corn-Revere