The First Amendment Protects the "Nuremberg Files" Web Site

by Jonathan Wallace

In an Oregon case, a jury returned a verdict for substantial damages against the publisher of the Nuremberg Files website, which published lists of abortion doctors with their home addresses. When a physician on the list was murdered, a line was placed through the name; when a doctor was wounded, the name was listed in gray. Though the anti-abortion focus of the site was clear, nothing on the site specifically advocated violence against the doctors.

After the verdict, the ISP hosting the site closed it down, claiming a terms of service violation.

The verdict, which will likely be reversed on First Amendment grounds if appealed, acutely illustrates the way society blurs the distinction between morality and legality. Not everything which we find shockingly immoral is, or should be, illegal. In the case of a decision assigning liability for pure speech---for that is all a web page is---more consideration should have been given to the goals of the first amendment, and the precedents already established in free speech law.

Decades of Supreme Court decisions, long preceding the Internet, have established that even the explicit advocacy of violence is protected except in the small subset of cases in which the speech is capable of inspiring immediate action against a victim. A book, pamphlet or web page calling for the murder of a group of people, repulsive as it is, is not illegal under this rule. Standing on the proposed victim's doorstep, addressing an angry armed mob, would be.

One Supreme Court precedent involved a speech given at an isolated farm to a racist group. The advocacy of violence was not aimed at specific individuals, but at members of a race who were not present. In another case, a dissident said that if he were drafted, the first person he would point his rifle at would be President Johnson. The Court held that this statement was too conditional to constitute an immediate threat of action.

The lawsuit was brought under a 1994 law, the Freedom of Access to Clinic Entrances Act. The name of the law itself indicates that it was passed to address actions taken on the front steps of the targeted location, not on a web page.

The act creates a criminal penalty and a civil remedy against "whoever..... by threat of force.....intimidates or interferes with, or attempts to interfere with" any user or provider of reproductive health services. Congress did not have the authority, in passing this act, to expand the limits of the Supreme Court definition of a threat. It could only target a particular type of threat meeting the Supreme Court criteria. The Nuremberg Files web site did not meet the Supreme Court standard, and the judge should never have permitted the case to be submitted to a jury.

Thus, the Nuremberg Files web site could have legally called for the murder of abortion doctors. Unlike speech on a doctor's doorstep intended to inflame an armed mob, it is very unlikely that a court will find that speech on the web is sufficiently immediate to constitute an illegal advocacy of violence under the Supreme Court rule. The jury's verdict was based on shock and rage at the defendant's ideas. But it is very dangerous to jump from the reaction that an idea is shocking to the presumption that it is illegal or should give rise to civil liability.

An interesting question is whether the behavior of the Nuremberg Files webmaster would be illegal even if performed on a doctor's doorstep. Holding up a piece of paper with the proposed victim's name and drawing a line through it might not constitute the kind of immediate inflammatory speech which could be prosecuted even in that context---not in the same way as shouting "Kill him now!" to an angry mob.

Once you clear away the fog of rage, it is hard to find the illegal activity in the morally horrifying Nuremberg Files page. The site reprinted publicly available information. In order to turn this activity into a crime, we would need privacy laws which don't currently exist, providing civil liability for revealing the identity or address of a person who doesn't want this information known. Even then, there would be a strong free speech issue concerning the circumstances under which the newsworthiness of a person's identity overrides his desire for privacy.

Once we acknowledge that the first amendment protects the communication of a person's name and address, we are forced to look for nuances to make the behavior which shocks us illegal. Suppose I print the names and addresses of the congresspeople who voted to impeach the president on a website where other language leads you to infer that I want you to write and thank them. You print the same information on a website where certain prose leads the reader to infer you are very angry at them. How much nuance in your writing does it require for a jury to find that you are advocating violence against the congressfolk? Once juries or courts get involved looking for nuances in pure speech, we are all at risk.

When we make speech like the Nuremberg Files site illegal, the temptation is then to keep drawing the circle further out. At some point it becomes illegal to make statements like "the world would be better off if no doctors performed abortion" or to write a novel involving the killing of abortion doctors. Then we have to get involved in very fine distinctions: is the novel by someone well-known in the mainstream, like John Grisham, or by a fringe figure who belongs to an anti-abortion group? For the purposes of the first amendment, there is no distinction, and cannot be any, between A Time to Kill and The Turner Diaries. Of course, it is frequently debatable whether a depiction advocates the acts of violence it describes-- shades of the centuries old debate as to whether The Merchant of Venice is an anti-semitic work. (I believe it is, by the way.) The next step is to take similar or practically identical speech and decide whether it is acceptable based on the identity of the speaker. In the sixties, Roy Rogers appeared on television wearing an American flag shirt, but Abbie Hoffman was blacked out when he tried to do the same.

Abortion is legal and constitutionally protected in this country. The key to protecting the right to abortion is to guard the people who deliver the service and prosecute the people who physically attempt to harm them. This does not and should not extend to silencing those who oppose abortion, no matter how virulent their speech.