Threatening speech can be compensated for civilly and can be enjoined from further publication. As threatening speech, it is not entitled to First Amendment Protection. However, the line between protected speech and threatening speech is far from clear.

This debate recently came to the forefront of the media in the heavily publicized case of Planned Parenthood, Inc. v. American Coalition of Life Activists, No. 95-1671-JO (D. Ore. Feb. 25, 1999). Several anti-abortion activists created a website entitled The Nuremberg Files and wanted posters to promote their anti-abortion beliefs. The website consisted of anti-abortion information; rather graphic simulated blood dripping from fetus parts; and the names and personal information, including addresses and phone numbers, of abortion providers. When one of the abortion providers was killed, his name was crossed out in red. When an abortion provider was wounded, his name was displayed in gray. The wanted posters proclaim the abortion providers guilty of crimes against humanity and offer a $5,000 reward for the abortion providers.

Planned Parenthood along with several of the abortion providers mentioned on the website and the wanted posters filed suit in federal court in the District of Oregon, alleging that these posters were threatening. The plaintiffs claimed that the website and wanted posters violate the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248 (1994) and Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (1994) and sued under the civil provisions of those acts.

District Court Judge Robert E. Jones instructed the jury that the controversy surrounding abortion is not at issue in this case. Instead, he instructed the jury to consider whether the plaintiffs had proven the following elements necessary to prevail under FACE:

Judge Jones provided the jury with the following definition of a threat:

Judge Jones then provided the jury that the plaintiffs must prevail under the RICO claim if the following elements are met:

Property, Judge Jones instructed, is broadly defined as including "a plaintiff's protected right to provide abortion services free from wrongful threats, violence, coercion or fear" and "may also include money plaintiffs contend they were required to spend on security measures as a result of defendants' alleged threats."

The jury returned with a $107 million verdict against the defendants, evidencing a belief that the website and wanted posters constituted a true threat. The impact of the jury verdict may be mostly symbolic and as a deterrent, because the defendants do not have the funds for the plaintiffs to collect. After the verdict, defendant Catherine Ramey vowed she would not pay the amount ordered by the jury. "I have no intention of giving money to people who kill children," she said. "That would be like asking Martin Luther King Jr. to pay money to the Ku Klux Klan. I mean you just don't do it." $100 million verdict against anti-abortion activists, CNN, ¶ 2 (Feb. 2, 1999) < http://www.cnn.com/US/9902/02/abortion.web.verdict.03/> Furthermore, the defendants said they had previously transferred their assets to make themselves judgment-proof. Id. ¶ 3. However, the plaintiffs were able to recover some of the award. Planned Parenthood was able to seize some assets, including computers from Operation Rescue and frequent-flier miles from the group’s leader. Creators of Anti-Abortion Web Site Told to Pay Millions, N.Y. TIMES, ¶ 10 (Feb. 3, 1999) <http://www.nytimes.com/library/tech/99/02/biztech/articles/03abortion.html>.

The plaintiffs also won an injunction against the defendants from publishing, reproducing, or transmitting the website or posters. Planned Parenthood, Inc. v. American Coalition of Life Activists, No. 95-1671-JO (D. Ore. Feb. 25, 1999). Judge Jones acknowledged that a higher standard is required for an injunction than for an award of damages. Madsen v. Women’s Health Center, 512 U.S. 753 (1994). After concluding that the restrictions on abortion protests did not constituted a content-based restriction on speech, id. at 762, the Court in Madsen held that strict scrutiny did not apply to content-neutral injunctions, but rather applied the time, place, manner restriction analysis. Id. at 765. Pursuant to FACE, 18 U.S.C. § 248(c)(2)(B), Judge Jones granted a permanent injunction against the defendants. In his ruling, Judge Jones found that the website and wanted posters did constitute a true threat. He defined a true threat as:

Planned Parenthood, Inc., No. 95-1671-JO, fn.2.

This definition of a "true threat" is interesting because it differs from the definition of true threat which he gave to the jury. In his jury instructions, the judge specifically said that "the test is not the subjective view of the defendants, but the objective view of a reasonable person." Planned Parenthood, Inc. v. American Coalition of Life Activists, No. 95-1671-JO (D. Ore. Feb. 25, 1999). The plaintiffs have stated that they plan to appeal the jury verdict, pointing to some experts who claim that the Supreme Court requires that the threat must cause imminent lawless action. $100 million verdict against anti-abortion activists, CNN, ¶ 10 (Feb. 2, 1999) <http://www.cnn.com/US/9902/02/abortion.web.verdict.03/>.

Despite the jury verdict finding that the website and wanted posters constitute a true threat, some have continued to speculate whether these works do constitute a true threat. This may be more than mere idle speculation on a settled issue, however, because the implications and bounds of this decision may have a profound impact on the limits of protected speech.

Defendants, such as Catherine Ramey, have continued to assert that their website and posters do not constitute a threat. Id. Yet at the same time, defendant Charles Wysong, simultaneously asserts that the website and posters do not constitute a threat while stating that "When people disobey God, like killing babies, they have a reason to be afraid." Id. ¶ 19. In his instructions to the jury, Judge Jones attempted to categorize such veiled threat as threats. He stated, "Even a statement that is ambiguous, subtle or conditional can amount to a threat in light of the factual context in which the statement was made." Planned Parenthood, Inc. v. American Coalition of Life Activists, No. 95-1671-JO (D. Ore. Feb. 25, 1999).

The issue thus becomes framed as a tension between rights. Gloria Feldt, President of Planned Parenthood Federation of America, said the jury’s decision helped to protect "our constitutional right to provide important health services and information, free from fear." Creators of Anti-Abortion Web Site Told to Pay Millions, N.Y. TIMES, ¶ 17 (Feb. 3, 1999) <http://www.nytimes.com/library/tech/99/02/biztech/articles/03abortion.html>. On the other side, anti-abortion activists assert that they have a right to protest and express their beliefs, rights which they believe have been compromised by this jury verdict. Defense attorney Chris Ferrara said, "[i]f these posters are threatening, when they contain no threatening language whatsoever, then virtually any document that criticizes an abortionist by name could be construed a threat." $100 million verdict against anti-abortion activists, CNN, ¶ 9 (Feb. 2, 1999) <http://www.cnn.com/US/9902/02/abortion.web.verdict.03/>.

In determining how the line between a threat and protected speech will be drawn, Feldt asserted that "[w]hether these threats are posted on trees or on the Internet, their intent and impact is the same: to threaten the lives of doctors who courageously serve women seeking to exercise their right to choose abortion." Creators of Anti-Abortion Web Site Told to Pay Millions, N.Y. TIMES, ¶ 16 (Feb. 3, 1999) <http://www.nytimes.com/library/tech/99/02/biztech/articles/03abortion.html>. However, the unique medium of the Internet can impact the analysis, even if it does not change the underlying test.

First, the Internet is a global means of communication, readily accessible by millions at very little cost to the speaker. The instantaneous nature of the Internet, along with the wide audience it reaches, can play a role in the determination of whether speech is threatening. In this case, the website was able to reach many anti-abortion activists, a limited number of whom have reacted violently to abortion providers. The National Abortion Federation purport that there have been 7 killings, 15 attempted murders, 99 acid attacks, 154 arsons, and 39 bombings involving abortion clinics or workers in the last two decades. Free Speech Debated in Suit Over Anti-Abortion Web Site, N.Y. TIMES, ¶ 7 (Jan. 13, 1999) <http://search.nytimes.com/search/daily/bin/fastweb?getdoc+site+site+69145+3+wAAA+%22Nuremberg%7EFiles%22>. It is plausible that many perpetrators of such acts could be instigated by the website. In this way, the medium of the Internet is substantially different from a written communication which may have difficulty reaching such extremists.

Second, the liability of the Internet Service Provider is not as well-established in our law as liability for traditional publishers. Currently, the Communications Decency Act exempts the ISP from liability when the ISP did not provide the content at issue. 47 U.S.C. § 230 (1996). However, given the rapid change in the law in this developing arena, the CDA may not be the final word on ISP liability. Here, the defendant’s ISP, Mindspring, removed the material after the jury returned its verdict, but before Judge Jones issued the injunction. Anti-Abortion Site Is Back Online, N.Y. TIMES, ¶ 3 (Feb. 22, 1999) <http://search.nytimes.com/search/daily/bin/fastweb?getdoc+site+site+69401+0+wAAA+%22Nuremberg%7EFiles%22>.

Finally, U.S. rulings are limited to U.S. jurisdiction. The Internet is global in nature, and thus once material appears online, it may be effectively unreachable by U.S. courts. While the Nuremberg Files website has been offline in the U.S. after Mindspring removed the material, the website reappeared overseas. Although the U.S. courts have jurisdiction over the defendants, they do not have jurisdiction over foreigners, such as Karin Spaink, a citizen of the Netherlands. Spaink, a self-described "left-wing, atheist, cursing, slightly perverted, sex-loving, smoking, drugs-promoting, pro-abortion, bisexual, free speech advocate," created a mirror site of the Nuremberg Files website onto her own server in the Netherlands. In this way, the website remained online and U.S. courts could not effect its removal. Ultimately, Spaink removed the mirrored site of her own accord.

In conclusion, the Internet is a substantially different medium than traditional print media. Accordingly, speech on the Internet may be more threatening in that it can be reached instantaneously by millions and it can be untouchable by U.S. courts once the material is placed online. While there are strong free speech rights in protecting offensive speech, as articulated by Spaink in her explanation of her mirrored site, such speech interests must be tempered against the rights of doctors to practice their vocation and the rights of women to seek abortions. When the goal of the speech is to end a legal activity through violence, the speech has moved out of First Amendment protection and into the realm of threatening speech.

Links:

Jury instructions in the case

Planned Parenthood’s Press Release

Wanted Posters

(a) Prohibited activities.--Whoever--

(a) (1) (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;

(a) (2) (2) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or

(a) (3) (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship, shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor.

(b) Penalties.--Whoever violates this section shall--

(b) (1) (1) in the case of a first offense, be fined in accordance with this title, or imprisoned not more than one year, or both; and

(b) (2) (2) in the case of a second or subsequent offense after a prior conviction under this section, be fined in accordance with this title, or imprisoned not more than 3 years, or both; except that for an offense involving exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be not more than six months, or both, for the first offense; and the fine shall, notwithstanding section 3571, be not more than $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; and except that if bodily injury results, the length of imprisonment shall be not more than 10 years, and if death results, it shall be for any term of years or for life.

(c) Civil remedies.--

(c) (1) (1) Right of action.--

(c) (1) (A) (A) In general.--Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action for the relief set forth in subparagraph (B), except that such an action may be brought under subsection (a)(1) only by a person involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services, and such an action may be brought under subsection (a)(2) only by a person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship or by the entity that owns or operates such place of religious worship.

(c) (1) (B) (B) Relief.--In any action under subparagraph (A), the court may award appropriate relief, including temporary, preliminary or permanent injunctive relief and compensatory and punitive damages, as well as the costs of suit and reasonable fees for attorneys and expert witnesses. With respect to compensatory damages, the plaintiff may elect, at any time prior to the rendering of final judgment, to recover, in lieu of actual damages, an award of statutory damages in the amount of $5,000 per violation.

(c) (2) (2) Action by Attorney General of the United States.--

(c) (2) (A) (A) In general.--If the Attorney General of the United States has reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation of this section, the Attorney General may commence a civil action in any appropriate United States District Court.

(c) (2) (B) (B) Relief.--In any action under subparagraph (A), the court may award appropriate relief, including temporary, preliminary or permanent injunctive relief, and compensatory damages to persons aggrieved as described in paragraph (1)(B). The court, to vindicate the public interest, may also assess a civil penalty against each respondent--

(c) (2) (B) (i) (i) in an amount not exceeding $10,000 for a nonviolent physical obstruction and $15,000 for other first violations; and

(c) (2) (B) (ii) (ii) in an amount not exceeding $15,000 for a nonviolent physical obstruction and $25,000 for any other subsequent violation.

(c) (3) (3) Actions by State Attorneys General.--

(c) (3) (A) (A) In general.--If the Attorney General of a State has reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation of this section, such Attorney General may commence a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State, in any appropriate United States District Court.

(c) (3) (B) (B) Relief.--In any action under subparagraph (A), the court may award appropriate relief, including temporary, preliminary or permanent injunctive relief, compensatory damages, and civil penalties as described in paragraph (2)(B).

(d) Rules of construction.--Nothing in this section shall be construed--

(d) (1) (1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;

(d) (2) (2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, occurring outside a facility, regardless of the point of view expressed, or to limit any existing legal remedies for such interference;

(d) (3) (3) to provide exclusive criminal penalties or civil remedies with respect to the conduct prohibited by this section, or to preempt State or local laws that may provide such penalties or remedies; or

(d) (4) (4) to interfere with the enforcement of State or local laws regulating the performance of abortions or other reproductive health services.

(e) Definitions.--As used in this section:

(e) (1) (1) Facility.--The term "facility" includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located.

(e) (2) (2) Interfere with.--The term "interfere with" means to restrict a person's freedom of movement.

(e) (3) (3) Intimidate.--The term "intimidate" means to place a person in reasonable apprehension of bodily harm to him- or herself or to another.

(e) (4) (4) Physical obstruction.--The term "physical obstruction" means rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous.

(e) (5) (5) Reproductive health services.--The term "reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.

(e) (6) (6) State.--The term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.