Nuremberg Files: Testing the Outer Limits of the First Amendment

The Nuremberg Files: Testing the Outer Limits of the First Amendment MICHAEL VITIELLO* The NurembergFiles, an anti-abortionwebsite with both graphicimages as well aspersonal information about abortion doctors, lists the names of abortion doctors, their addresses, and other personal information, noting the healthy abortion doctors in black type, "wounded" abortion doctors in gray, and murdered persons with lines through their names. Together with "wanted" posters of abortion doctors, a magazine promoting and celebrating abortion clinic violence, a yearly banquet honoringthose imprisonedfor acts of abortion violence, and a book about the use offorce againstabortionists entitled "A Time to Kill," the members of the American Coalition of Life Activists (ACLA) maintained that these expressions were entitled to full First Amendment protectionaspurelypolitical speech, spoken in opposition to abortionrights. This FirstAmendment defense was rejected by the U.S. District Court of Oregon in Planned Parenthood v. American Coalition of Life Activists, finding that the defendants' conduct was a true threat of violence in violation of the Freedom ofAccess to Clinic EntrancesAct of 1994 (FACE), requiringboth legal and injunctive relief In the face of much criticism of the verdict, criticism focused on the FirstAmendment protection of such volatile speech, Professor Vitiello argues that ifthe Brandenburg test of incitement to imminent lawless action allows prohibition of any speech, it would allow the prohibition of the speech ofACLA. Professor Vitiello argues that, viewed in its entirety, within a context of abortion clinic violence that the defendants supported, encouraged, andpromoted, the speech of ACA falls outside the bounds of protected First Amendment speech, and is properlysubjected to civil andcriminal penalty. * Professor of Law, McGeorge School of Law, University of the Pacific; J.D., University of Pennsylvania, 1974; B.A., Swarthmore College, 1969. I wish to extend special thanks to Dean Gerald Caplan for his continued support of scholarship at McGeorge. I am extremely appreciative of the excellent research efforts of my research assistants Loris L. Bakken and Andrew Wilson. I first presented this article as a work in progress during the summer of 1999 to a group of my colleagues and friends whose comments, although skeptical, were extremely helpful. They may not want to be associated with my ultimate conclusions but I want to acknowledge their help. Thanks to Alan Brownstein (U.C. Davis), Julie Davies, Joshua Dressier, Ruth Jones, Dorothy Landsberg, Larry Levine, David Miller, Beth O'Neill, Terrie Robinson (University of Mississippi), my former research assistant Jenna L. Clark, and special thanks to Brian Landsberg, who not only hosted the session but also has continued to offer helpful feedback on a number of drafts of this article. I would also like to thank Ms. Maria Vullo, one of the capable attorneys representing Planned Parenthood in the litigation discussed in this article, for her insights and comments on an earlier draft of this article, and Professors Robert F. Nagel and Adeno Addis for their helpful comments. 1176 OHIOSTATE LA WJOURNVAL [Vol. 61:1175 TABLE OF CONTENTS I. INTRODUCTION ................................................................................... 1177 II. TIE NUREMBERGFIL ..................................................................... 1180 A. An Overview ofthe Litigation..................................................... 1180 B. Reaction to the Verdict ................................................................ 1181 C. The NurembergFiles .................................................................. 1184 D. Planned Parenthood v. American Coalition of Life Advocates .................................................................................... 1186 1. The Defendants' Support of Violence .................................. 1186 2. The Defendants' ConductRelating to Violence .................. 1192 E. The Death Toll ............................................................................. 1198 I1. FIRST AMENDMENT CASE LAW ......................................................... 1199 A. The EarlyPrecedent .................................................................... 1202 B. The Smith Act Cases.................................................................... 1208 C. Brandenburg v. Ohio ................................................................... 1209 D. Post-BrandenburgDevelopments-Supreme Court Precedent..................................................................................... 1214 E. The pre-BrandenburgCases after Brandenburg ........................ 1217 IV. TEE NUREMBERG FILES ..................................................................... 1223 A. The NurembergFiles andthe FirstAmendment: The Intent Requirement................................................................................. 1223 B. The NurembergFiles andthe FirstAmendment: The Imminence Requirement ............................................................. 1231 1. The Case Law ........................................................................ 1232 2. Policies UnderlyingImminence ........................................... 1238 3. The Planned Parenthood Defendants................................... 1242 V. CONCLUSION ....................................................................................... 1245 2000] NUREMBURG FILES 1177 I. INTRODUCTION Law enforcement agencies and organizations that monitor hate groups have recognized the increased risk created by access to the Internet.' As reported by the New York Times, law enforcement agents are concerned that hate groups target isolated individuals ripe for their message of hate.2 Websites, inexpensive to create and largely unregulated, may inspire lone wolves to commit violent acts. Unlike more traditional hate groups that government agencies have infiltrated, modem hate groups and the potential millions of visitors to their websites cannot be effectively monitored Governmental regulation of hate sites raises immediate First Amendment concerns. Modem First Amendment case law has limited the ability of the government to ban hate speech, even when it advocates unlawful conduct. As long as the speech remains abstract advocacy, rather than incitement to imminent violence, the speech is protected by the First Amendment.4 But, in light of the inability of the government to monitor individuals inspired to act by hate sites, the cost of First Amendment protection has increased. Society, in effect, is subsidizing hate groups who can spread their messages at minimal cost over the Internet with little fear of reprisal. I Hate Crime on the Internet: HearingBefore the Senate Comm. on the Judiciary, 106th Cong. (forthcoming) [hereinafter Hatch, Hate CrimeHearings] (Statement of Sen. Orrin Hatch, Chairman, Senate Comm. on the Judiciary); News Release, Senate Comm. on the Judiciary, Statement of Sen. Orrin Hatch Before the Committee on the Judiciary Hearing on Hate Crime on the Internet (Sept. 14, 1999), available at http'//www.senate.gov/-judiciary/91499ogh.htm ("rihe Southern Poverty Law Center... which individually tracked sites for 254 hate groups in January of this year-up 50% from one year ago. And another group... the Anti- Defamation League-estimated the presence of some 500-600 hate groups on the web this June."). 2 See Jo Thomas, New Face of Terror Crimes: 'Lone Wolf Weaned on Hate, N.Y. TIMES, Aug. 16,1999, atAl. The notion being preached in pamphlets, on telephone lines and on white supremacist websites is that of the romantic, heroic loner who fights his own private war, committing violent acts against the Government Jews and racial minorities. A warrior working alone, supremacist leaders say, cannot be betrayed or infiltrated by the Federal Bureau of Investigation, a fate that has befallen some hate groups. Id. 3 Hatch,Hate Crime Hearings,supra note 1. mhese hate groups can be remarkably sophisticated, carefully avoiding obvious and explicit appeals to racism and anti-Semitism. Sometimes, the sites are disguised as personal home pages, with displays about innocent enough sounding topics as city biographies or historical figures. Scroll down from sites about Santa Barbara (California), or Martin Luther King, Jr., however, and what you will find is a rancid torrent ofneo-Nazi invective. 4 See infra Part mR.B-D. 1178 OHIO STATE L4 WJOURNVAL [Vol. 61:1175 In February, 1999, a federal jury in Portland, Oregon, awarded several plaintiffs $107 million in damages against fourteen individual defendants and two radical anti-abortion groups.5 Much of the litigation focused on whether the Nuremberg Files,6 a website created by some of the defendants, amounted to a threat within the meaning of the Freedom of Access to Clinic Entrances Act of 1994 (hereinafter FACE).7 The website included personal information about abortion providers in a context seemingly calculated to inspire violence against those named on its pages and may have contributed to the death of at least one doctor.8 The PlannedParenthood litigation offers a case study involving the use of the Internet to spread a message of hate to thousands, and possibly millions, of readers, at minimal cost. Despite the website's message of violence, main stream media and First Amendment advocates have argued that the verdict is an attack on the First Amendment 9 5 Planned Parenthood v. Am. Coalition of Life Activists, 41 F. Supp. 2d 1130 (D. Or. 1999). 6 The Nuremberg

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