The Nuremberg Files

By John Fitzpatrick

[Reprinted from Issues & Views Spring 1999]

2/2/99: Oregon jury in a civil case awards two women's clinics and four abortion providers $109 million against 12 anti-abortionists and two anti-abortion organizations for making unlawful threats of physical harm by having the names and addresses of four doctors published on two "wanted" posters and an anti-abortion website, "The Nuremberg Files." The website was not involved in the action. It's anti-abortionist creator was not one of the defendants, but published information supplied by them. His site was closed after the trial, by service provider, Mindspring, under its "appropriate use" policy.

The threat to free speech often comes from governments and courts, but it comes from others too. It comes from those who demand protection from being "offended," and from those with such a poor opinion of their fellows that they insist on having the poor things sheltered from all manner of incitement and corruption. It also comes from those who, having failed to convince other people of their views, resort to violence.

Anybody who cares about freedom of speech should condemn the anti-abortionists in "The Nuremberg Files" case--not for their views on abortion, but for polluting free debate with the aura of violence and for degrading the very principles which lie behind the idea of freedom of speech in the first place.

These anti-abortionists, in publishing the photographs, names and addresses of abortion providers in the context of the recent killing of doctors, are seeking to bully their opponents into submission. This nasty campaign poisons public debate and denies the ability of people to understand the issues and reach their own conclusions.

Leaving that aside, the question at issue here is whether these anti-abortionists, on the evidence available, by their conduct and words in context, went beyond mere speech and were engaged in making real threats to abortion providers which those people could reasonably fear would result in imminent harm or death. A fair assessment would have to say that they were not.

The anti-abortionists are undoubtedly playing games with the current law, and for this too, for the danger it poses to the free speech of others, they should be denounced. We must be careful however that they do not drag the rest of us down with them. Condemning and opposing them is one thing, but to stop them by embracing new and excessive restraints upon freedom of speech would be a very hollow victory indeed.

In this context the court decision holding them liable for making unlawful threats must itself be opposed. In stretching the concept of what constitutes a threat of imminent harm, and in its heavy reliance upon an equally stretched notion of incitement, the decision strikes an unwelcome blow at vigorous political rhetoric, at impassioned expression, at the time-honored practices of naming and shaming, shunning and picketing. Think how often political activists have named opponents as "murderers" and called for their premises or homes to be picketed. Think how often those activists have called upon others to "fight back," to take "direct action" or to "stop" opponents.

More importantly still, this decision strikes at two crucial principles. First, that as adult human beings we are more than capable of withstanding the abuse, forceful words and verbal bullying of others. This idea is under particular attack at the present time. Hurt feelings, damaged self-esteem, undermined self-respect, outraged dignity, offended sensibilities, and so on, are increasingly being deemed the sorts of harm which justify restraints on freedom of speech. As well as having a devastating effect upon public discussion, such an approach treats human beings as helpless victims.

We urge the resilience of the human mind and the view that free speech is so important that only in exceptional circumstances should it ever be compromised. The price we all have to pay for that is having our feelings hurt and our sensibilities outraged. We point out, as a matter of common sense, that it is impossible to measure the hurtness of feelings. We also maintain that we are more than capable of conducting a free and open discussion despite all manner of provocation.

There is a vital distinction between promoting something and actually doing it. Those who promote violence are simply speaking to other human beings. It is not the speaking that does the damage but the violence. Those who commit violence must take responsibility for their actions, irrespective of any encouragement or incitement. It appears that in this case no connection was established between the anti-abortionists and the killings which have occurred. There is no evidence that the attackers ever had access to the information that was published.

The important point is that we must be allowed to take responsibility, allowed to choose. We must not be treated as if we cannot be trusted to respond appropriately to the various opinions and inducements to which we are constantly exposed. In this context we have to remain suspicious of the whole concept of incitement, and especially of any enlargement of its scope. There would appear to be no evidence in this case that any person reading the posters or the website did not have time to reflect upon their response, and did not have a real choice about what action, if any, to take.

The fact that the Internet was involved has some significant implications. The plaintiffs argued that the sheer scope of publication made the threat (via the elements of incitement within it) more serious. This is a very dangerous argument, based on the idea that while you might be able to trust some people you certainly can't trust a whole lot of them, and expresses the anti-democratic suspicion and hostility that is often directed at the Internet.

We should also question whether a service provider should take an editorial role with respect to the content of websites. There are difficult issues here, but developing "appropriate use" policies as a form of self-regulation implies the acceptance of a degree of responsibility for sites which is grist to the mill of those who like to see stiffer legal regulation of service providers.

The jury decided in this case that what the defendants did amounted to unlawful threats of physical harm. The crucial issue in legal terms is how the judge directed the jury on the existing law. Apparently, he told them that the threats should be considered as threats, if they could be taken as such by a reasonable person, and that they could consider whether any threat was implied by the "total context and circumstances" of the anti-abortion movement.

It seems that he did not tell them that the current Supreme Court test is whether any incitement is likely to cause an "imminent unlawful action." In the end it appears that the words were held to be unlawful threats on the basis that they were a compound of implied threats and implied incitement, on the criteria advanced by the judge.

Whatever directions the judge gave, and whatever any appeal court decides, the decision should be criticized for setting too low a standard with respect to the gap between words and their consequences, and that can only reinforce all the prevailing prejudices, and also put the rest of us at legal risk. Whether the threat comes from anti-abortionists or from courts, we should oppose all developments which tend to restrict the scope and flow of ideas or to encourage a sense of individuals as either passive, vulnerable and impotent victims or as unreliable and impressionable children who cannot be trusted to make up their minds or take responsibility for their own actions. Against these forces we should continue to promote free debate, the robustness of the human spirit and our ability to understand, to take responsibility and to act.

-- John Fitzpatrick is Director of the Kent Law Clinic, and Lecturer in Law at the University of Kent at Canterbury, England.

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