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.