Planned Parenthood Win Landmark Free Speech Case
What's In It for the Rest of Us?

By Simon Ward, FCUSA Communications Director

America's victims of intolerance owe a debt of gratitude to a determined group of physicians in Oregon who provide health care to women, including birth control and abortions.

Regardless of your views on these issues, if you are a medical researcher, livestock farmer or genetic engineer, manage a McDonald's or KFC, or simply own a posh new house on land that was recently wildlife habitat, you may already have been threatened or attacked by extremists just because they don't like what you do.

Now Planned Parenthood, on behalf of those physicians and their clinics, have won an important legal victory for all Americans who value the right to engage in legal pursuits free from fear.

Planned Parenthood sued the American Coalition of Life Activists et al. (ACLA) in 1995, accusing them of waging a campaign of terror against clinics providing abortions and their staff, and of breaching a 1994 federal law prohibiting interference with access to such clinics.

When the case finally went to trial in 1999, evidence included "wanted" posters naming individual physicians and providing their home addresses under the heading "Guilty of Crimes Against Humanity". Also entered into evidence was a website called the Nuremberg Files, naming some 200 physicians and clinic workers.

The plaintiffs argued that these represented "true threats" not protected by the First Amendment, and "clearly were designed to scare health care providers out of providing health care," in the words of David Greenberg, Planned Parenthood's chief executive officer.

The defendants countered by arguing that since no explicit threats had been made against individuals, simply listing names and addresses was protected speech.

The court was also asked to consider the context of ACLA's campaign, specifically the fact that terminating pregnancies in the US had become a perilous undertaking. Between 1993 and 1998, seven people involved in providing this service had been murdered, while 14 attempts were made on the lives of others. There were also tens of cases of arson and bombings, and hundreds of cases of vandalism and death threats.

By making available information that could be used by fanatical anti-abortionists, was ACLA intentionally furthering a trend towards violence and even murder? Certainly, it could not plead ignorance, since the photos of slain physicians on the Nuremberg Files website had lines through them, while those who had been injured were grayed out.

The jury weighed the arguments and concluded that the posters were true threats, and awarded over $100 million in damages. The judge, meanwhile, issued a permanent injunction against further dissemination of the posters.

Faced with such enormous damages, ACLA predictably appealed, and in 2001 a three-judge panel overturned the ruling, writing: "Political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party."

But a year later, a larger panel of the same court reinstated the verdict. Drawing a comparison with the burning of crosses by the Ku Klux Klan, the court said threats need not be explicit. The posters constituted "a true threat because … they connote something they do not literally say, yet both the actor and the recipient get the message."

As a last resort, ACLA asked for the Supreme Court to consider the case, but on June 28 this year the judges decided not to interfere. They thereby implicitly upheld the finding that ACLA's actions constituted "true threats" not protected by the First Amendment.

What Does It All Mean?

"The [Supreme] Court confirmed what Planned Parenthood has said from the beginning," said the plaintiff's president, Gloria Feldt. "The First Amendment does not protect threats of violence, mayhem and murder from dangerous, violent extremists. … The vast majority of Americans understand well the difference between free speech and violent threats."

In other words, the ruling was a victory for common sense. But let's not cheer too loud - not yet.

The application of "common sense" is not a given in America's legal system, or any other, especially when a fiercely defended institution like free speech is under threat.

As Feldt indicated, most Americans would have no problem seeing that ACLA's wanted posters and lists of names were threats to those on the lists, whether or not they were explicit. But the law distinguishes between baseless threats, "true threats" and everything in between, in order to protect people who, for whatever reason, make threats they probably don't intend to carry out. Thus, threatening to kill a neighbor on finding his dog digging up your roses is protected speech, unless you already have a rap sheet for murder.

There is also little in the way of judicial precedents or authoritative analyses to guide courts on the meaning of "true threats". Although the First Amendment provides the underpinnings of America's free speech doctrine, in actuality it makes no distinction between lawful and unlawful speech. Meanwhile, the Supreme Court is yet to provide an in-depth analysis of "true threats". As a result, the lower circuit courts have been free to develop the doctrine on their own.

The precedent set by Planned Parenthood v. ACLA, therefore, is both important and rare.

But will it change our world? Again, if common sense guided our legal system, maybe. In practice, its impact as a legal tool will depend on the agility of the lawyers who wield it.

Lawyers can easily argue that a precedent set under one complex set of circumstances cannot be applied in another case in which anything substantive about the circumstances differs. This is particularly easy when two issues clash in one case, as in the safety of health care providers versus the defense of free speech. There is no single, overriding circumstance, but rather a mish-mash of events which may or may not breach more than one law.

That said, two significant precedents have been set, regarding context and intent, that courts will find it hard to ignore.

The ruling established that a published list of names can constitute a "true threat", even if no explicit threat accompanies the list, provided that harm has been done to the kind of people named on that list, and can reasonably be expected to continue. Non-explicit threats have been outlawed before, such as the burning of crosses, but this was the first time for a list of names to be deemed a "true threat". Furthermore, the publisher of the list does not have to be implicated directly in any act of violence, provided a "reasonable person" would assume that the publisher's intent is to promote those acts of violence.

Of course, the judges in this case were doubtless swayed by a context which included the murders of several physicians. We will have to wait and see whether the precedent is deemed to apply in cases where no one has yet died, or whether a threatening list or poster only becomes a "true threat" once someone is physically assaulted or murdered.

Another precedent set by this case is more symbolic, but nonetheless noteworthy.

The legality of speech is not determined by the medium used to disseminate it, but this was the first free speech case in which web content was permitted as evidence. Notice has therefore been served to extremist groups who feel they can safely hide behind the web's anonymity that they are not exempt from the arm of the law.

But once again, celebrations must be tempered with a dose of reality. Internet law is in its infancy, and even if certain web content can ever be totally removed from US servers, there will always be servers in distant lands prepared to host that content.

Last but not least, it must be remembered that any precedent set by Planned Parenthood v. ACLA is only binding within the jurisdiction of the 9th Circuit. While this is good news for Oregonians, Washingtonians and Californians, judges operating on other circuits can throw it out the window if they wish. In practice, though, they will likely be influenced by the case, since the Supreme Court does not like to be asked twice for rulings on substantively similar cases.

Just to complicate matters more, the Internet component of Planned Parenthood v. ACLA does not clarify whether a plaintiff living in California can take advantage of the 9th Circuit ruling to file suit locally against an extremist non-profit registered in New York.

One of the tests for deciding an appropriate venue for the trial of a corporation is where it does business. But can a New York organization using the web to terrorize folks on the left coast be said to be doing business there? An agile prosecutor will argue "yes", but an agile defense attorney will have strong grounds to complain of "forum shopping".

ALF and SHAC Next?

With the case of Planned Parenthood v. ACLA now on the books, what further good can we realistically expect to come from it?

For fear of being sued for millions of dollars, extremists should now be more inhibited about publishing lists of people they oppose, whether or not those lists are explicitly "hit lists".

And any entities that assist in publishing such lists, such as Internet service providers, should worry too. In Planned Parenthood v. ACLA, the offending website did not exist at the time the case was filed, and neither the ISP nor the webmaster was named as a defendant. But the next time around, things could be different.

Mercifully, published lists of people who become tomorrow's murder or mugging victims will never be allowed to prosper on the web. But the use of lists by extreme advocacy groups is alarmingly common, as are acts of violence against the property of people listed and threatening behavior against them and their families.

Though far from being alone, no type of advocacy group has made more use of lists than animal rights and environmental extremists. Two of the most egregious offenders in the US, who should now be rethinking their strategies, are the Animal Liberation Front (ALF) and Stop Huntingdon Animal Cruelty (SHAC).

Though ALF presents itself as a faceless entity, someone runs its website (www.animalliberationfront.com). And for years that someone has made available the ALF publication The Final Nail: Destroying the Fur Industry - A Guided Tour. This publication opens with the statement, "The Earth is not dying - it is being killed. And the people killing it have names and addresses." It then goes on to list farm addresses, and since fur farms are mostly family-run, those addresses are home addresses.

Other than the fact that no fur farmers have so far been murdered, a case brought against ALF (provided a defendant or defendants can be identified) would clearly match two key components behind the Planned Parenthood v. ACLA ruling.

The intent is clear: The Final Nail includes chapters with titles like "Maximum Destruction NOT Minimum Damage", and "Smashing the Furriers". There are also three chapters devoted to the building of incendiary devices.

And the context is a history of American fur farms being raided by vandals who release their livestock, of arson attacks, and of death threats being mailed in envelopes rigged with razor blades.

SHAC has taken a similar approach, except for the fact that its many lists are restricted to people associated - however indirectly - with the single animal-research company it was set up to destroy, Huntingdon Life Sciences (HLS).

SHAC's activities in the US are based in Philadelphia and focus on HLS's facility in New Jersey, but its lists know no boundaries. Aside from the obvious targets of HLS staff, it publishes the names and contact information of HLS's clients, stockholders, suppliers, bankers, you name it, worldwide, and this August launched a new website, www.hlscustomers.com, specifically for this purpose.

Meanwhile, its activists engage in relentless campaigns of intimidation, threats and vandalism outside family homes - homes advertised by SHAC. As yet there are no dead bodies, but no one targeted by SHAC can forget how HLS's managing director in the UK was hospitalized in 2001 after being viciously clubbed with a baseball bat outside his home.

A strategic rethink is also in order by the Internet service providers (ISPs) who allow the likes of ALF and SHAC to spread their doctrine of hate. The old addage about not shooting the messenger only holds up as long as the messenger is ignorant or under orders from above. ALF and SHAC's ISPs can make no such defense.

In the case of ALF, and a host of other extreme animal rights and environmental groups, the messenger is Envirolink. In its own words, this Pittsburgh-based outfit "offers website and domain name hosting, automated mailing lists, interactive bulletin boards and e-mail accounts free of charge to non-profit organizations within the environmental and animal rights communities." One might think such an altruistic mission warrants Envirolink's status as a 501(c)3 tax-exempt entity (EIN 25-1721380). But should a fur farmer ever die, even unintentionally, at the hands of an ALF activist fresh from reading The Final Nail, it will be a boneheaded jury that will clear Envirolink of all guilt.

SHAC's ISP, meanwhile, sets off all sorts of alarm bells. Besides hosting www.shacusa.net and www.shacamerica.net, First Alpina Technologies (FAT) appears bent on catering to any organization that no respectable ISP would touch.

Its terms and conditions of service sound promising, indicating that they "prohibit ... forms of abuse such as harassment and the posting of illegal or unlawful materials." But a more accurate picture is revealed on its home page, where it strongly implies that it specializes in hosting websites for clients who do not relish the attentions of legal and/or fiscal authorities. Indeed, the following explanation indicates that where FAT is concerned, almost anything goes: "However, albeit being very liberal please note that we will refuse any website which contains child pornography or other highly illegal matters, whereas the definition of illegality often depends on the jurisdiction our server is located in. Therefore, our customers can choose between various physical locations, just to get the right place for the web content you want to publish."

And therein lies the rub.

As long as terrorists and intimidators like ALF and SHAC can link up with unscrupulous messengers like FAT, no ruling by the Supreme Court on "true threats" will make any difference.

But if nothing else, the case of Planned Parenthood v. ACLA serves notice that publishing lists of names and addresses is not necessarily protected speech in the US. With a few more plaintiffs, and the right lawyers and judges, this precedent could, in theory, impact the lives of all Americans who value open debate free from the threat of violence.

See also:

FCUSA Press Kit Special Feature : Regulating the Conflict Industry

For further information contact: Teresa Platt, Executive Director, Fur Commission USA, 826 Orange Avenue, #506, Coronado, CA 92118 USA, (619) 575-0139, (619) 575-5578/fax, furfarmers@aol.com, www.furcommission.com.

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