John Leo
I have been reading the federal appeals court decision in the Nuremberg Files case, trying to figure out which side I'm on. Normally I come down on the free-speech side of any First Amendment case, but this time I believe the 9th Circuit Appeals Court was right when it ruled 6-5 for Planned Parenthood against militant anti-abortionists, the American Coalition of Life Activists. This is a very hard case. It is headed for the Supreme Court, where (I think) the free-speech argument of the anti-abortionists is likely to prevail.

The Nuremberg Files Web site denounces abortion doctors as murderers bound for hell. The site shows images of these doctors, giving their names and addresses. Sometimes the site gives the Social Security numbers and license plate numbers of doctors, along with their home phone numbers and the names and ages of their children.

Sponsors of the site have also printed Wild West-style "wanted" posters showing abortion doctors. Three doctors murdered by anti-abortion radicals are in the posters, too, marked in black to indicate they are no longer wanted. Abortion-rights advocates argue that this implicitly identifies the other abortion doctors as the next targets. However, the site and the posters never call for violence, only for the doctors to be brought under surveillance and "brought to justice" in Nuremberg-like trials for crimes against humanity.

Is this obnoxious, coercive and intimidating political commentary (all allowable under the First Amendment), or a series of true threats and therefore not allowable? A three-judge federal panel overturned a jury verdict in a civil suit against the anti-abortionists, ruling that the Nuremberg site had no explicit threats of harm. Now the full court has ruled the other way, saying in effect that the "wanted" posters acted as true death threats, even without explicitly threatening language.

One problem with the court ruling is a similar 1982 Supreme Court case that went in the free-speech direction, NAACP v. Claiborne Hardware. To enforce a civil rights boycott starting in 1966 against white-owned stores in Mississippi, Charles Evers and other black activists took names of shoppers and published them in a newspaper. (In the same vein, the Nuremberg site names mothers who've had abortions and says it's training "abortioncams" at "baby butchertoriums.") Shots were fired into a shopper's home, and there were several assaults.

John Leo

John Leo is editor of and a former contributing editor at U.S. News and World Report.

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