PASADENA — A flood of legal briefs to the nation’s largest federal appeals court predicts the trashing of some deeply held American ideals no matter the case’s outcome.
Balancing the right to an abortion against free speech, the 9th U.S. Circuit Court of Appeals is reconsidering its March ruling backing a Web site where abortion providers appear to be targeted for death and torment.
A decision supporting free speech in the closely watched case, being heard by 11 of the circuit’s judges on Tuesday in Pasadena could tread on the rights of doctors and those seeking abortions, and foster a climate of violence targeting abortion providers, some say.
Others fear the outcome could dramatically curtail constitutionally protected rights of speech — even for those merely gathering and disseminating public information.
In March, a three-judge panel of the 9th Circuit threw out a $109 million verdict against some anti-abortion activists, ruling that the First Amendment protects a Web site that publishes personal information about abortion doctors in a section it calls the “Nuremberg Files.”
The defendants see themselves as political protesters collecting data on doctors in hopes of one day putting them on trial just as Nazi war criminals were at Nuremberg.
But a federal judge and a Portland, Ore., jury found in 1999 that the Web site and some Most Wanted-style posters the activists created were “true threats to kill” because the abortion doctors were being tormented and three of them murdered. Once killed, their names appear crossed off on the Web site.
Despite the gloom-and-doom predictions, the controversial speech that has caused abortion providers to use disguises, bodyguards and bulletproof vests most likely will continue unabated no matter what the appellate court rules.
Neal Horsley, the Carrollton, Ga., man who runs the “Nuremberg Files,” said he will keep publishing personal dossiers about abortion doctors and information about their “crimes against humanity.”
“This court case won’t shut me up,” Horsley said. “They can do whatever they want. I ain’t going to stop.”
The only way of stopping him, he said, is arresting him. Authorities have not brought a case against him, although the FBI has warned abortion doctors that their names appear on the Web site.
Dozens of Internet service providers have dropped his site, but he has constantly shifted to new providers, some of them overseas and immune from a potential order from a U.S. judge to shut down.
The Web site is closely watched by anti-abortion activists — including FBI fugitive Clayton Lee Waagner, who came to Horsley’s house on Nov. 23. Waagner said he was going to kill dozens of abortion doctors and that he was responsible for recently sending hundreds of anthrax threats to medical clinics.
“I think he came to me because I could get the word out,” said Horsley, who tipped off the FBI to the visit. Waagner was arrested last week in Cincinnati.
Ironically, Horsley isn’t even named in the lawsuit. The defendants are a dozen individuals and anti-abortion groups who allegedly gave Horsley the personal information about abortion providers that appears online.
An Oregon chapter of Planned Parenthood and a number of abortion doctors sued under a 1994 federal law that makes it illegal to incite violence against abortion doctors.
Only as the case was headed for trial in 1999 did the doctors figure out Horsley was running the Web site. Adding him to the lawsuit would have caused substantial delays, attorneys close to the case said.
On the Web site, Internet surfers can click an icon “to see the list of baby butcherers and a few of the people who have been killed.” The site notes whether the doctors are “working” “wounded” or a “fatality.”
The name of Eleanor Smeal, the president of the Feminist Majority Foundation, which counsels independent abortion clinics, appears on the site under “a list of miscellaneous spouses & other blood flunkies.”
“They’re trying to intimidate pro-choice leaders,” Smeal said.
In siding with the anti-abortionists, the three-judge appellate panel ruled in March that they could be held liable for monetary damages only if their material authorized or directly threatened violence.
“If defendants threatened to commit violent acts, by working alone or with others, then their (works) could properly support the verdict,” Circuit Judge Alex Kozinski wrote. “But if their (works) merely encouraged unrelated terrorists, then their words are protected by the First Amendment.”
Don Treshman, a defendant in the case from Baltimore who said he has been arrested 200 times for blockading abortion clinics, applauded the original ruling.
“We now retain the free speech right to call abortion what it is: cold-blooded murder of a baby in the womb,” he said.
Treshman and the others argued that their Most Wanted posters and Web site dossiers are protected speech because they merely list doctors and clinics — and are not a threat.
Susan Popik, a San Francisco lawyer who filed a brief on behalf of more than a dozen abortion and woman’s groups, said the judges may view things differently after Sept. 11.
“I do think people right now are more sensitive to threatening conduct and perhaps at some deep unconscious level the court will view this kind of conduct more seriously,” Popik said
The trial judge, U.S. District Judge Robert Jones, had instructed the jury to consider the history of violence in the anti-abortion movement, including the slayings of three doctors after their names appeared on the lists.
One was Dr. Barnett Slepian, who was killed by a sniper in 1998 at his home near Buffalo, N.Y. Slepian’s name was crossed out on the Web site later that same day.
Doctors on the list testified that they lived in constant fear and instructed their children to crouch in the bathtub if they heard gunfire.
After the jury’s verdict in 1999, Judge Jones called the Web site and the wanted posters “blatant and illegal communication of true threats to kill.”
Sen. Charles E. Schumer, D-N.Y., who sponsored a bill that Congress approved in 1994 prohibiting violence or threats of violence at abortion clinics, said if the 9th Circuit’s decision overturning Jones stands, “we will see a renewed effort to intimidate, threaten and harm women and doctors in an effort to shut down clinics.”
They include Michael Bray of Bowie, Md., author of a book that justifies killing doctors to stop abortions. Bray went to prison from 1985 to 1989 for his role in arson attacks and bombings of seven clinics. Another is Cathy Ramey of Portland, an editor at Life Advocate magazine and author of “In Defense of Others,” which defends people who refuse to condemn the killing of abortion providers.
The case is Planned Parenthood v. American Coalition of Life Activists, 99-35405.