Interesting article by Daphne Eviatar in the Washington Independent, in which Eviatar reviews the Freedom of Access to Clinic Entrances (FACE) Act and other law involving threats to abortion clinics and staff. Courts have ruled that “Nuremberg Files”-type expression, such as wanted posters and lists of abortion providers with the names of murdered doctors crossed out, constitute threats and are not protected speech. This is true even though the sick puppies who create the posters and the lists generally avoid making explicit, specific threats.

Under the FACE Act, doctors and clinic workers don’t have to wait for government to act against extremists making threats; they can sue those threatening them. However,

Some civil libertarians, however, have concerns. George Washington University Law Professor Jonathan Turley on the Rachel Maddow Show on Monday cautioned against prosecution or lawsuits against even those who promote violence. “We have this difficult line to walk between free speech and preventative law enforcement,” he said. “The Supreme Court has said that violent speech is protected . . . and it is in fact protected to say all abortion doctors should be killed.”

I found the transcript of the Monday Rachel Maddow program, and Turley doesn’t dismiss the FACE act entirely. He says that when speech amounts to “an imminent threat of violence” legal action can be taken.

To me — and I’m not a lawyer — FACE is akin to anti-stalking laws. Twenty years ago, a woman might be hounded by a stalker who obviously intended to harm her, but as a rule police could do nothing until an assault occurred. “Even when the suspect had followed his victim, sent her hate mail, or behaved in a threatening manner, the police were without legal recourse,” says this U.S. Justice Department document on stalking laws.

One such stalked woman was Rebecca Shaeffer, a young actress who was stalked for two years before her “fan” shot and killed her in 1989. After that, states began to provide stalked women some legal protection, although those laws also have been challenged on First Amendment grounds.

Florida anti-stalking law, for example, calls out “any person who willfully, maliciously, and repeatedly follows or harasses another “engaging in conduct directed at a specific person that causes substantial emotional distress.” This is harassment, the law says, and the target of the harassment can take legal action to stop it.

Anti-stalking laws aren’t perfect and don’t always stop the stalking. A lawyer quoted in Eviatar’s article speaks of the “delicate balance” between protected speech and incitement to violence. Reasonable people can disagree about whether a particular expression falls on one side of the line or another.

To me, if the inflammatory speech is directed at a particular person, it’s crossed that line. It’s one thing to say that “all abortion providers should be killed.” It’s another to make a “wanted” poster of a particular physician and provide directions to his home. Even if the latter expression doesn’t explicitly direct people to shoot and kill the doctor, the implication is clear.

(If you think about it, what is the point of protesting outside abortion clinics except to harass and intimidate patients and staff? The clinics don’t make law and policy. If you want to change the law, don’t protest the clinics; protest Congress. And I feel the same way about anti-war protests at recruitment offices and other military facilities, btw; it’s misdirected and potentially dangerous. If you don’t like war policy, protest Congress and the White House, not the troops.)

This leaves us with the problem of people in national media who whip up enmity against specific abortion providers, as Bill O’Reilly did against Dr. Tiller. O’Reilly pretty explicitly told his viewers and radio audience that Dr. Tiller was wantonly murdering healthy, viable fetuses for frivolous reasons, which all evidence says is a lie. O’Reilly’s audiences didn’t hear the stories behind the decision to terminate a third-trimester pregnancy, nearly always heartbreaking, nearly always made by women who genuinely wanted the baby.

Surely reckless speech such as O’Reilly’s contributes to sense among extremists that they are entitled to murder abortion doctors. I still cannot think of a remedy other than civil suits filed by people who have been injured by anti-abortion extremists, or their survivors. I’m not sure if there are legal grounds for such a suit, but if there were, a couple of successful prosecutions would make the O’Reilly’s of the world tone down their rhetoric, I suspect.

This story has been public for several days, but somehow it got by me until Michael Tomasky pointed it out —

Some years ago a New York City cop named Thomas Pappas was circulating racist literature from his home. The NYPD found out about it and fired him. The case worked its way up to the federal appeals court, which upheld the NYPD’s right to fire Pappas.

But guess who dissented? Yep. Judge Sotomayor held that the firing violated Pappas’ free speech rights.

Tomasky cited SCOTUSblog.

Tomasky also referred to Rush Limbaugh as “Fatface Oxy-boy.” Sounds like a winner.

The “So-So” is from the genuinely depraved Debbie Shlussel, via DougJ at Balloon Juice and Wonkette. Don’t worry; I’m not linking directly to Schlussel. Wonkette quotes Shlussel –

“I can’t help but notice that the sole reason So-So (my very appropriate name for Sonia Sotomayor) was chosen as Barack Obama’s nominee for the U.S. Supreme Court is that she shares the life story of J-Lo, Jennifer Lopez.”

J-Lo graduated summa cum laude from Princeton and then from Yale Law? Who knew? Seriously, I think the nickname “So-So” is kinda cute. I’d hate to think what nickname we’d have to give Shlussel, however. I don’t think it would be G-rated. Perhaps it would be better not to go there.

There are several reports today that conservatives are demanding a Senate filibuster of the Sotomayor nomination. One of these is Mark Levin, a radio talk-show host who once said that a filibuster against a judicial nomination was unconstitutional. Of course, in that case the nominee was Sam Alito.

The leader of the “get tough” movement is Manuel Miranda, and if that name sounds familiar, Greg Sargent explains why.

There’s a decent editorial in the Washington Post today about how absurd the Right’s arguments against Sotomayor actually are. Sotomayor’s resume is remarkably similar to that of Sam Alito — Princeton, Yale Law, years on the bench, etc. But weirdly, some on the Right are calling Sotomayor “the Left’s Harriet Miers.” About the only things Miers and Sotomayor have in common is that they’re both women with law degrees.

By last night a number of rightie bloggers were bristling with outrage that anyone would assume Dr. Tiller’s murderer was an anti-abortion activist.

This morning I see that the person who has been accused of the murder — let’s not forget the presumption of innocence — was an anti-abortion activist.

Peter Slevin and Robert Barnes write for the Washington Post that the accused man, Scott Roeder, “is known in anti-abortion circles as a man who believes that killing an abortion doctor is justifiable.”

As news of Roeder’s arrest traveled, Kansas City activist Regina Dinwiddie remembered the day a dozen years ago when Roeder hugged her in glee after trying to frighten an abortion provider by staring him down inside a Planned Parenthood clinic.

“He grabbed me and said, ‘I’ve read the Defensive Action Statement and I love what you’re doing,’ ” Dinwiddie said in a telephone interview. She was a signer of the 1990s statement, which declares that the use of force is justified.

“I said, ‘You need to get out of here. You can get in a lot of trouble,’ ” Dinwiddie recalled.

Dinwiddie said she does not consider death of Tiller, the nation’s most prominent provider of controversial late-term abortions, to be a homicide.

Another anti-reproductive rights activist, described Roeder as “anti-government” and recalls Roeder had visited Rachelle “Shelley” Shannon, convicted of shooting Dr. Tiller several years ago, in prison.

Also, in May 2007 Tiller’s place of worship was identified on the Operation Rescue website, with the suggestion that people go there and “ask questions” (i.e., harass) the pastor and church members. Dr. Tiller was killed while handing out bulletins in the church’s lobby.

Today rightie bloggers are bristling with outrage at the suggestion that hate speech they and others have flung at Dr. Tiller over the years had anything whatsoever to do with his murder. Little Lulu:

Every mainstream pro-life organization has unequivocally condemned the killing.

I repeat: Every mainstream pro-life organization has unequivocally condemned the killing.

To me, this is akin to giving a known pyromaniac a can of gasoline and a book of matches and then denying you meant for him to start a fire. Condemning the act after it has occurred does not whitewash one’s complicity in it.

Malkin also is amused that so many of us are calling the murder of Dr. Tiller an act of terrorism. “Interesting how the t-word has been rediscovered,” she says. Malkin, you might recall, was at the forefront of the right-wing hysteria campaign against the recent Department of Homeland Security report to federal, state and local law enforcement regarding the threat of terrorism from right-wing extremists groups.

Malkin bristled with outrage at the suggestion that people such as, for example, anti-abortion activists might be capable of violence, and called the report a “hit job” on conservatives. Seems that it’s Lulu who needed to rediscover the “t-word.”

Today many people are focusing on Bill O’Reilly’s long and highly visible crusade against Dr. Tiller. It’s one thing to declare that one is opposed to third trimester abortions; it’s another thing to lie about them. O’Reilly said this on his radio program last year:

Now, a guy in Kansas, George Tiller, OK, can kill a baby — kill a baby — a half-hour before the baby’s supposed to be birthed for no reason whatsoever other than the mother has a pain in her foot. OK? Mother’s health: pain in the foot, migraine headache, whatever it may be.

That’s an outright lie. Kansas law allows no such thing. O’Reilly can tell one lie after another on radio and television, and call it “journalism,” and there appears to be no way to stop him from doing so as long as his employer, Rupert Murdoch, approves of it.

However, I sincerely hope Dr. Tiller’s heirs take O’Reilly and Murdoch to court and sue their socks off.

This nation has a deep commitment to free speech without government censorship. One of the few values Left and Right hold in common is the right of someone to say any damnfool thing he likes without penalty of law. About the only exception is where personal injury is involved. Many other western democracies place some limits on what people can say when it might incite violence, or sometimes just because — literature denying the Holocaust is banned in some places. I don’t want to go that way.

However, maybe it’s time we revisited libel laws. As a rule journalists — including faux journalists like O’Reilly — have little to fear from libel lawsuits, because the plaintiff has to prove “actual malice.” Publishing or broadcasting an untruth, even when it causes harm, is not necessarily libelous if the defendant can claim it was an innocent mistake. Of course, O’Reilly’s been in “reckless disregard for the truth” territory for some time. Perhaps we need to clarify exactly how far a public mouthpiece can go before he wanders into the litigation zone.

Update: See also “O’Reilly’s campaign against murdered doctor” at Salon.

But there’s no other person who bears as much responsibility for the characterization of Tiller as a savage on the loose, killing babies willy-nilly thanks to the collusion of would-be sophisticated cultural elites, a bought-and-paid-for governor and scofflaw secular journalists. Tiller’s name first appeared on “The Factor” on Feb. 25, 2005. Since then, O’Reilly and his guest hosts have brought up the doctor on 28 more episodes, including as recently as April 27 of this year. Almost invariably, Tiller is described as “Tiller the Baby Killer.”

Tiller, O’Reilly likes to say, “destroys fetuses for just about any reason right up until the birth date for $5,000.” He’s guilty of “Nazi stuff,” said O’Reilly on June 8, 2005; a moral equivalent to NAMBLA and al-Qaida, he suggested on March 15, 2006. “This is the kind of stuff happened in Mao’s China, Hitler’s Germany, Stalin’s Soviet Union,” said O’Reilly on Nov. 9, 2006.