Disagreeing With Turley?

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.

18 thoughts on “Disagreeing With Turley?

  1. We allow way too much malicious speech that is protected under our current definition of the First Amendment. I agree with you on the protestors, why should someone who is seeking a legal action (abortion or otherwise), have to be harassed? Why does Fred Phelps have a right to be near a soldiers funeral and harass the family. To me that is unconscionable and it should be stopped. I’m with you on targeting specific individuals, you’ve crossed the line and O’Lielly, as always, has crossed the line.

  2. I’m not up on racketeering or conspiracy laws but I was once on a jury that involved the charges of aiding and abetting which basically means you both knew and helped.

    Wouldn’t Fox also be exposed to charges should O’Reilly’s calling out of individuals be subsject to prosecution?

  3. Why does Fred Phelps have a right to be near a soldiers funeral and harass the family.

    That doesn’t make any sense to me, either.

  4. …a counter-argument to Turley’s assessment of protected violent speech based on Brandenburg v. Ohio was actually offered 14 years ago, just two months after the Oklahoma City bombing, in this American Prospect piece. It addressed the very ambiguity of Brandenburg‘s reliance of “imminent threat” when applied to the ability of the rapidly growing technology of mass communication to reach deeper into the population to find that one person or handful of people who could feel moved to action by thinly veiled calls for violence.

    If one thinks about the dramatic expansion of communication technology even in the time since the American Prospect article was written, that counter-argument about what constitutes speech that would be

    “…directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (from the decision)

    would seem to be more starkly valid than it was then. The ability to communicate violent speech was far more limited forty years ago at the time of Brandenburg than it is today and – Professor Turley’s civil libertarian proclivities aside – the degree to which violent speech is seen as threatening to provoke an imminent lawless action needs to be recalibrated because of that change. O’Reilly, as an example, has far greater reach than that one Cincinnati TV station involved in Brandenburg, so it would seem that he should be held to a greater degree of accountability for what he says…

  5. Dr. Tiller was charged under Kansas’s strict abortion laws, tried by a local jury, and found not guilty. This was the lawful process. Scott Roeder was dissatisfied with the lawful process because it failed to support his personal beliefs and emotions, so he committed a murder.

    Those who cheered Roeder on, like Bill O’Reilly, also despise the lawful process. They consider themselves above it. They’re selective anarchists, if you will. Put another way: Bill O’Reilly despises not only abortion providers, but our justice system as well. His potential audience needs to be reminded of this, again and again.

  6. O’Reilly (Beck and Hannity) and FOX don’t care as long as it drives ratings. Their lawyers let them say so much, and no more. All to prevent lawsuit’s or charges from the Fed and states. Individual lawsuit’s may be another matter, though, and worth looking into.
    The audience doesn’t care because they either don’t have the intellectual capability to discern BS from truth, don’t compare the blatings on Fox to reality, or just don’t care to let anything get in the way of a good hate-fest. So reminding this audience of anything is useless. Nothing will dent their craniums until they change their outlook – and dat ain’t happenin’.
    There is hope though – the audience for FOX continues to age and shrink. Someone on KOS had a great suggestion to further minimize their audience: Democrat’s must keep off the network. First, FOX lives on controversy and argument, and no matter how well a Dem defends our position, after they leave, nothing stops the gutless host’s on a show from denigrating anything said behind the Dem’s back. Second, without Dem’s, there’s nothing but one dimensional bloviating. That won’t cause the controversy that drives ratings and gets FOX mentions on other TV outlets and other mediums. It also leaves the audience without someone to directly mock.
    Make FOX boring, and let the “free market” rule!

  7. I’d like to point out a couple of things. There is no evidence that *even if Tiller had been found guilty* of the technical illegalities that he was charged with, and had gone to jail, that that would have been sufficient punishment for Roeder and that he wouldn’t have still tried to kill Tiller. Tiller’s crime, in Roeder’s eyes, was outside the law and Roeder’s right to punish till was, likewise, unaffected by the actual legality or illegality of Tiller’s acts. In other words–the whole argument that Roeder was “dissatisfied” with the lawful process is probably wrong. The lawful process, since it never would have ended in execution for Tiller, could never have satisfied Roeder.

    Something else that needs to be said is that a person, like Turley, talking about how “we” have to be careful to balance speech issues with safety issues doesn’t really mean that. Because he doesn’t find himself *at risk*–he would be a lot more honest and perhaps thoughtful if he said outright

    “Doctors, Nurses, Staff, Pregnant Women and their Families should willingly assume the risk of intimidation, harrassment, stalking and death *so that* angry right to life groups can continually shout fire in a crowded building.”

    When you put it that way you come to a very different conclusion about the risks and rewards of refusing to use the power of the state to set limits on “free speech” and “free expression.”

    As for the argument that picketing a recruitment station is identical to picketing a place of business/health clinic. These are actually really different things *even if* you stick them in the same sentence. While its true that policy is not made in either place one is clearly a branch of the same government that our constitution gives us the liberty to “peacefully assemble and petition” while the other is a place of private business. If we have any kind of constitutional right vis a vis our own government it ought to include being able to assemble and picket and petition on or near government property to make our point. That isn’t to say we would have any right to harrass soldiers or recruits. But on the other hand apparently, as the law is observed, it does include the right to physically harrass, shout at, target, and threaten people moving past abortion clinics or attempting to enter them.

    aimai

  8. How it works, as conveyed through Tony Auth’s latest political cartoon in today’s (June 3) Philadelphia Inquirer:

    http://www.philly.com/inquirer/opinion/

    You know, “Will no one rid me of this troublesome doctor?” Standing there all sanctimonious, advocating for the implementation of the Will of the Lord, just hoping some vicious “God-fearin'” thug will take care of business.

    Tony nailed it.

  9. [T]he whole argument that Roeder was “dissatisfied” with the lawful process is probably wrong.

    And yet Roeder harassed Tiller for years and didn’t act until now. Nor did he attempt to kill any other abortion providers. I think there’s plenty of reason to see a connection between the recent court verdict and the murder, or at least the timing of the murder.

    Such a connection does not in any way lessen Roeder’s crime… it exacerbates it. It wasn’t just the killing of someone by a bigot with a gun– something that happens every minute in this country. It was an act that said, “Fuck the American legal system.” And since this post focuses on the encouragers, Bill O’Reilly et al, I’m pointing out that the encouragers share that attitude. The public record of O’Reilly’s words make that perfectly clear.

  10. Cundgulag:

    “Make FOX boring, and let the “free market” rule!”

    If it was boredom that would make them go away they would have turned the lights out years ago. Although your point is exact, lefty’s should just stay away and let them argue with themselves. I think to some extent that has happened although you can always find a politician or pundit without any broadcast morals. Other than the occasional elected official, not to many lefty media types get any airtime over there. So they just make fake lefty’s up, real dim and stupid looking schmucks. Hell most FAUX viewers think Dick Morris is a liberal (that’s how they over look his cross-dressing and love of hookers, hey he’s a liberal, he worked for Clinton).

    I think the answer to this particular act of domestic terrorism is for the Family of Tiller to sue the wholly hell out of FAUX and Bill-O. Money will pour in from far and wide for a first class defense team, Wing-nuts will scream “free speech, 1st amendment, liberal plot, wha, wha, wha” so fucking what. Take them to court, I guarantee they’d end up with at minimum a healthy fine. Also maybe the spectacle of the lawsuit itself may tighten up some hate speech laws as Maha refers to. Should someone who has access to millions of people five days a week, year after year, have the same right to say stupid things like I can surrounded by a few friends or co-workers or a mirror? I think not, they should be held to a different standard, they are broadcasters for shits sake, they can’t even say shit on the air? CBS paid half a million for broadcasting Janet’s wardrobe malfunction (maybe they got out of the fine but you get the point), I think even a mediocre lawyer can make the case that FAUX and Bill-O are least partially responsible for that doctors murder.

  11. There seems little chance of Roe v Wade being overturned. Attempts at the state level to circumvent Roe wil likely be overturned. They know this. So the tactics will shift to terrorism.

    I support the right of free speech and freedom of assembly. If they want to whoop it up in church that’s fine. If they want to rent a convention hall and give speeches, that’s fine. If they want to have web sites, that’s fine. If they want to pursue legal action, they are swimming upstream; there’s a new Supreme Court on the way, and Roe v Wade is not going away. But let them try.

    Doctors & nurses on an individual basis do NOT need to have their privacy invaded, deal with demonstrations outside their home, live in constant fear of violence. A medical person who tries to empower a womans right to choose should NOT have to join the witness protection program to practice medicine.

    The terror tactics of making life hell on earth for providers who won’t quit the lawful practice of medicine must be made illegal.

  12. I have always requested patience for Obama. Hey he’s only been in office a few months, etc. But the appointment of this Tool combined with the over the top praise for Ronnie Reagan yesterday has made me question our new president. More here! Was Obama around when Ronnie preached: I’m from the goverment and I’m here to help? If so why did he hold the hand of that old bag yesterday, he should have kicked her to the curb.

  13. Surely reckless speech such as O’Reilly’s contributes to sense among extremists that they are entitled to murder abortion doctors.

    I think guys like O’Reilly only identify the targets and provides the notoriety that makes the killing a worthwhile endeavor. When you go before the Lord and present your gifts and receive your crowns for good works…. Doesn’t it make more sense to offer the blood of the destroyer of Abraham’s seed than the blood of a harlot or fornicator? The point is that the extremist’s mind has already been flipped before guys like O’Reilly fed them their hatred.

  14. Apparently the good Prof. Turley disregarded or failure to assigned proper weight to the fact that “right to free speech” is not an unalloyed right. The yelling “fire” falsely in a crowd, hate speech, and lying are generally unprotected speech, that a swine on the public airways ranting opinion that directs harm to another is no different, no such right exists either constitutionally or at common law.

    Concerning speech your “live traffic feed” does have a definite chilling effect upon entering opinions into the discussion. The cookie id should be identity enough for required records, publicly broadcasting the location indiscriminately of readers or contributers is off-putting at best and stokes paranoia concerning police state otherwise. Can a lower limit be set where there are at least 50-100,000 population in the location shown? Thanks for your consideration.

  15. expat, if it bothers you so much I will try to rig the feed so that it’s not visible while people are reading comments. I like it; it cheers me up.

  16. If it brings you cheer, that is important too. I can live with that, or at least learn to. The present designation is large enough to provide some anonymity of place. Thank you for your consideration again.

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