Trial to Decide If Anti-Choice Site, Posters Constitute Threat to Doctors

ACLU News Wire: 1-8-99 — Trial to Decide If Anti-Choice Site, Posters Constitute Threat to Doctors

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PORTLAND A U.S. District Court jury will decide whether violent anti-abortion Web site and posters constitute free speech protected by the First Amendment or illegal threats against doctors who perform abortions.

The lawsuit was filed in 1995 by Planned Parenthood, the Portland Feminist Women’s Health Center and five doctors against several militant anti-abortion groups and more than a dozen activists, according to The Oregonian.

At the center of suit are posters that declare abortion providers “Guilty of Crimes Against Humanities” and a Web site called “The Nuremberg files”. Both list the names of abortion providers. The web site also lists their addresses and telephone numbers of 200 “abortionists” who, according to the site, should be brought to trial like the Nazis were after World War II.

Pro-choice advocates say that the materials are part of a “campaign of terror and intimidation”, according to The Oregonian. They say a victory in court would not reduce aggressive and threatening materials and, if the jury awards damages, diminish militant abortion protesters financially.

Anti-choice activists say the posters and the Web site are protected by the First Amendment because they do not contain explicit threats. A loss in the case could have a chilling effect on anti-abortion speech, they say.

Trying to strike a balance between protecting free speech and reproductive freedom, the ACLU of Oregon filed a friend-of-the-court brief in the case, arguing that the jury should not only consider whether the doctors reasonably felt threatened by the posters and Web sites in the context of anti-abortion violence, but also whether the defendants intended the doctors to feel that way, The Oregonian reported.

“We’ve raised (this issue) to be clear that civil suits cannot be used as a method of censoring political speech or chilling it,” Dave Fidanque, Executive Director of the ACLU of Oregon, told The Oregonian.

Fidanque said the group’s position means neither side is completely happy with the ACLU, according to MSNBC. Defendants feel “we sold the First Amendment down the river,” he said, while plaintiffs think the ACLU isn’t doing enough to protect “reproductive freedom.”

The ACLU knew it would find itself in the middle, according to MSNBC, but decided to get involved because of the lawsuit’s importance. “This case raises unique issues that really have never been in a court before that have very important implications for the First Amendment … and for the provision of abortion services in this country,” Fidanque said.

Pro-choice groups have successfully sued extremist anti-abortion protesters in the past, but the Planned Parenthood case is the first civil suit brought under the federal Freedom of Access to Clinic Entrances Act of 1994, The Oregonian reported. The law forbids using “force or threat of force” to intentionally injure, intimidate or interfere with anyone seeking or providing reproductive health service. Under the law, clinics can sue for unlimited civil damages if they or their staff have been harmed, threatened or intimidated by anti-choice activists.

Defendants in the case include the American Coalition of Life Advocates, an umbrella group for several militant anti-abortion groups, and Advocates for Life Ministries, a radical, Portland-based anti-abortion group.

According to The Oregonian, both groups split with the mainstream anti-abortion movement in 1994 over the issue of violence.

Advocates for Life Ministries publishes Life Advocate, a magazine that has run articles endorsing “interference with and obstruction of abortion services through, among other things, use of force,” according to presiding Judge Robert E. Jones.

Andrew Burnett, a defendant and member of both groups, published a book called “A Time to Kill,” which justifies homicide against abortionists.

The defendants have twice asked Jones to dismiss the suit on free speech grounds, but, according to The Oregonian, he refused. In explaining his decision, Jones quoted a 9th U.S. Circuit Court of Appeals ruling that defines a threat as falling outside the First Amendment if “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of harm or assault.”

Furthermore, Jones said, “alleged threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners.”

Source: The Oregonian