February 9, 1999
A federal court ruling against anti-abortion groups could have important ramifications for free speech. Lee Hochberg of Oregon Public Television reports.
DR. ELIZABETH NEWHALL, Obstetrician: A hundred and sixty-six; it must be a girl.
LEE HOCHBERG: It was a court victory of unforeseen proportions for Portland obstetrician Elizabeth Newhall. An outspoken abortion rights advocate, she says she's been terrorized several years by anti-abortion militants. They called her a baby killer and issued wanted-style posters for her.
DR. ELIZABETH NEWHALL: When the F.B.I. called me up and said, "we think that you should buy a bullet-proof vest, and we think that you should get bullet-proof glass, and we think that, you know, we offer you a federal marshal to, you know, watch over you," I mean, what would a rational person think at that point?
LEE HOCHBERG: Newhall sued the abortion opponents. She argued the wanted posters and an anti-abortion Web site constituted an illegal threat of violence under federal laws that guarantee access to abortion clinics and prohibit racketeering. Last week, a Portland jury agreed. It ordered the militants to pay $109 million in damages to Newhall and other doctors targeted by the posters.
DR. ELIZABETH NEWHALL: The big message was sent that, you know, violence is not the way to go, violence won't be tolerated, and threats won't be tolerated.
LEE HOCHBERG: Elated at the verdict, Newhall nonetheless says she feels no safer in the days following it. Moments after it was announced, defendants streamed out of the Portland courthouse to declare their protests will go on.
CHARLES WYSOCK, Anti-Abortion Advocate: We're going to continue what we're doing before. There's nothing in those posters that's threatening, and they know it. And we'll continue to do what we've been doing. (Singing)
LEE HOCHBERG: The verdict is a new interpretation of what constitutes threatening speech under federal law.
PROTESTER: (singing) They lay their plans -- the butchers of mankind.
|Putting the heat on.|
LEE HOCHBERG: Newhall and three other doctors allege they have been threatened by 12 anti-abortion activists who had picketed their homes as part of a national campaign to pressure abortion doctors. In the early 90's, the activists printed and distributed to other activists wanted posters reminiscent of the Wild West with doctors' names and addresses. After three doctors were murdered after appearing on such posters, the activists distributed this so-called Deadly Dozen List in 1995. It accuses 13 abortion doctors, including Newhall and her ex-husband, Dr. James Newhall, of crimes against humanity. The list carried no explicit threat, but James Newhall says he was terrified when he saw it.
DR. JAMES NEWHALL, Abortion Rights Advocate: They knew exactly what they were doing when they put "guilty" in big letters -- "Deadly Dozen." Why "deadly dozen" anyway? They had to put that word "dead" in there. It's a wanted poster, dead or alive -- a $5,000 award. I mean, it had all the elements of a classic wanted poster.
LEE HOCHBERG: Abortion opponent Paul deParrie says the poster never threatened violence.
PAUL DE PARRIE, Anti-Abortion Advocate: I am trying to put heat on them, and I am trying to get them to feel uncomfortable, and I am trying to get them to rethink whether it is worth it for them to spend their time killing babies instead of doing some real medicine.
LEE HOCHBERG: DeParrie edits a magazine for Advocates for Life Ministries, a militant anti-abortion group that was ordered to pay $16 million in damages in the verdict. He says by distributing posters, he just want to make doctors uncomfortable.
PAUL DE PARRIE: I'm going to do it by putting the bright light of truth upon them so that their neighbors and their friends and their colleagues and the people at their country club all know that they're baby killers, that they're a stinking, rotten baby killer for a living.
LEE HOCHBERG: But that's not a threat.
PAUL DE PARRIE: That's not a threat, no. (Sirens wailing)
LEE HOCHBERG: Lawyers for the physicians convinced the jury that even if the threats weren't explicit, the posters were threatening, given the context of clinic violence that includes more than 250 bombings and arsons and seven murders. Attorney Maria Vullo noted some defendants had hailed those killings as justifiable homicide, and had called the assassins "heroes."
MARIA VULLO, Physicians' Lawyer: It's the method that these terrorists used to intimidate these doctors, knowing full well that they were in fear because of what had happened to doctors who had been on similar posters. And they knew that doctors were afraid.
LEE HOCHBERG: The doctors also argued, and the jury agreed, that this Web page abortion opponents placed on the Internet composed a threat. Called the Nuremberg Files, it lists more than 200 abortion doctors, called on the page "baby butchers." It names their spouses and relatives and solicits personal information about them. Doctors say it became threatening last October when New York obstetrician Bernette Slepian was gunned down in his home by a sniper. Only nine hours later, a line was drawn through his name on the Web page. Lines also appeared through the names of other slain abortion doctors. Those who had been maimed had their names shaded in gray. Plaintiff's attorney Vullo says the threat was implicit and real.
MARIA VULLO: By crossing out the names of people who were dead is a clear hit list, and it's a clear message to those who are not crossed out that, "you will be next. And we're not going to stop until you're all crossed out."
LEE HOCHBERG: The Web site's author was not named in the suit, but the idea and information for the site came from deParrie. He says the cross-outs were not a threat to abortion providers, but a message.
PAUL DE PARRIE: People that are abortionists should know that it's not a healthy occupation to be in. But that's still not a threat. That's reporting a fact. It's not a threat. It doesn't say that, "if you keep this up, this will happen to you." It just simply says, "this is what happened."
LEE HOCHBERG: Defendant's attorney Christopher Ferrara says the court's new standard on implicit threats is vague and threatens a protest group's right to free speech.
CHRISTOPHER FERRARA, Anti-Abortion Advocates' Lawyer: To strike out some names on a list of names does not constitute a threat to kill or injure anybody. And if we're going to go down that road, I can only begin to imagine what will be considered threatening tomorrow.
|An issue of free speech?|
LEE HOCHBERG: Other free speech advocates, while acknowledging the defendants in the Oregon case may have known they were being threatening, say the court's new standard is a slippery slope. The ACLU's David Fidanque.
DAVID FIDANQUE, ACLU: People need to know what they can and what they can't say. And the standard that was applied in this case just isn't clear enough. If political activists don't know what they can and can't say before defending themselves against $200 million lawsuits, then free speech in big trouble in this country.
LEE HOCHBERG: Dr. Newhall says that concern is misplaced.
DR. ELIZABETH NEWHALL: Nobody has any interest whatsoever in squelching the first amendment. I mean, I -- I'm hurt that anybody would think that that's my goal, you know, or that I would -- or that that's the case. I mean, I don't think free speech is in jeopardy. I don't think people are worried about their free speech rights. I think people are worried about their access to health care.
LEE HOCHBERG: Since the verdict, plaintiffs have asked the court to ban publication of the posters and the Nuremberg Files, but Judge Robert Jones said the Web page, created in Georgia, was outside his jurisdiction. The site's author then announced plans to display on the page live video of women entering abortion clinics. The site's Georgia-based service provider responded by removing the Nuremberg Files from the net. Squelching the files, though, will be impossible, says the Electronic Frontier Foundation, a San Francisco-based group fighting restrictions on Web-based communication.
ALEX FOWLER, Electronic Frontier Foundation: I think that it's very likely we'll see a proliferation of that same questionable content around the world on multiple sites in response to that one particular site being closed down.
LEE HOCHBERG: Attorneys for the abortion protesters say they'll appeal both the verdict and any injunction that's issued on the posters. The protesters say they disposed of their assets before the verdict, so they can't and won't pay the $100 million damages. As for the protests themselves, deParrie says doctors shouldn't expect them to stop.
PAUL DE PARRIE: My client is that little baby, and I'm going to keep talking about that baby. And I don't care if they put me in jail. I don't care if they sue me.
LEE HOCHBERG: DeParrie predicted that more violence will result now that one avenue of protest has been closed off.
PAUL DE PARRIE: If you make peaceful protest impossible, you make violent protest inevitable. And somebody, it won't be me, but somebody is going to respond.
LEE HOCHBERG: From the victors, came satisfaction, but resignation.
DR. JAMES NEWHALL: Certainly as long as I do abortions, I'm going to have to take extraordinary precautions. And even if someday I retire, I mean, they said that, you know, "it doesn't matter if you quit, we'll still come after you." So, no, I don't think this is going to go away. I don't think it's ever going to go away.
LEE HOCHBERG: Because of its ramifications for free speech, the case itself is likely to end up in the U.S. Supreme Court.