(WOMENSENEWS)–Two federal appeals courts in two very different cases recently ruled against the Nuremberg Files Web site or its operator, Neal Horsley.
In the first case, a California panel of federal judges ruled that threats of violence against abortion providers are NOT political speech protected by the First Amendment. In the second case, an Atlanta appeals court ruled a popular television host had not libeled Horsley when he said on the air that he believed Horsley was effectively an “accomplice” in the murder of abortion providers.
In a 6-5 decision, the 9th U.S. Circuit Court of Appeals, based in San Francisco, stated that members of the American Coalition of Life Activists had illegally threatened abortion doctors by publicizing what the doctors called a “hit list.” The group had published detailed dossiers, which included such information as the doctors’ home addresses, on old west-style “WANTED” posters and on the Nuremberg Files Web site.
In the May 16 ruling, the appeals court agreed with a federal jury that the anti-abortion activists’ campaign constituted a “true threat” of violence.
In the minority opinion, Judge Alex Kozinski’s wrote that “the evidence in the record does not support a finding that defendants threatened plaintiffs.” Another dissenter, Judge Marsha Berzon, stated that the defendants “have not murdered anyone” and that “neither their advocacy of doing so nor the posters and Web site they published crossed the line into unprotected speech.”
The case has followed an unusual and dramatic trajectory since its trial in 1999.
Last year, a three-judge panel of the appeals court, headed by Kozinski, unanimously overturned the trial court verdict, arguing that the poster campaign and the Web site were political speech protected by the First Amendment. The plaintiffs appealed, requesting a rare hearing by the full court. While the court was considering its response, the attacks of Sept. 11 made terrorism the most important issue in the country, magnifying the significance of issues in the case. On Oct. 3, the court nullified the decision of its own three-judge panel and ordered a re-hearing of the case before 11 justices.
The two abortion-provider organizations and four doctors sued the anti-abortion group in 1996 under federal racketeering laws and under the Freedom of Access to Clinic Entrances Act of 1994 in response to the American Coalition of Life Activists’ 1995 “DEADLY DOZEN” poster campaign. The Web site based on the posters was called “The Nuremberg Files.” Neal Horsley, the anti-abortion militant who created the site, argued that these doctors should be tried for “crimes against humanity,” just as Nazi war criminals were at Nuremberg.
The plaintiffs in Planned Parenthood v. American Coalition of Life Activists were concerned because many members of the coalition had publicly argued that the murder of abortion providers is “justifiable homicide.” And, in fact, physicians who had been the subject of two previous “WANTED” poster campaigns had been murdered. The name of New York abortion provider Dr. Barnett Slepian was crossed off the Nuremberg Files Web site shortly after a sniper murdered him in 1998. The clinic-entrance act was passed specifically in response to the earlier murders.
Court’s Deliberations Came When Entire Nation Tasted Terror
The case’s unusual and dramatic trajectory since the original trial in 1999 may reflect an equally significant shift in the nation’s attitudes toward anti-abortion violence.
Anthrax attacks on major media outlets and Congress last fall were followed by highly publicized anthrax threats against 550 abortion clinics and abortion-rights organizations. These threats took the form of envelopes full of white powder and threatening letters from the Army of God delivered in two waves: first via U.S. Postal Service in October and by Federal Express in November. Bomb threats were also called into the national offices of the Planned Parenthood Federation of America and the National Abortion Federation, disrupting communications between the organizations and the clinics’ security staff, scrambling to respond to the threats. Clinics were shut down for days at a time and, in some cases, whole city blocks evacuated as law enforcement and public health officials attempted to cope with the onslaught. Even the resolutely anti-abortion Attorney General John Ashcroft described these attacks as terrorism.
Self-described anti-abortion “terrorist” Clayton Waagner, one of the most wanted fugitives in the country, was captured by federal agents on Dec. 5, and confessed to the crimes. His capture made national news.
With the entire nation reeling from these onslaughts, coming as they did after Sept. 11, the appeals court re-heard Planned Parenthood vs. American Coalition of Life Activists on Dec. 11.
Courts Finds Substantial Evidence of Threat
Writing for the majority, Judge Pamela Ann Rymer stated that the court agreed to re-hear the case “because these issues are obviously important.”
“There is substantial evidence,” she wrote, “that these posters were prepared and disseminated to intimidate physicians from providing reproductive health services. Holding [coalition members] accountable for this conduct does not impinge on legitimate protest or advocacy,” Rymer concluded.
Rymer and her colleagues rejected the argument of the three-judge panel that had likened the behavior of the anti-abortion activists to that of a black civil rights group that used threatening language in connection with a boycott of white businesses in Mississippi. The U.S. Supreme Court ruled in a 1982 decision that the civil rights group’s language was a form of political speech and therefore protected by the First Amendment.
The difference in this case, the majority opinion said, was that there was no significant violence before or after the threatening language in the Mississippi boycott. But in the case of abortion providers, there had been a dramatic history of violence, including murders of doctors that had been preceded by “WANTED” posters similar to those in the “DEADLY DOZEN” campaign. Rymer concluded that these anti-abortion activists had gone beyond merely vilifying or ostracizing doctors to intentionally instilling fear to the point that physicians believed they needed to wear bulletproof vests and advised their children what to do if they thought they heard gunshots.
“I think it says for the abortion and non-abortion community, if you threaten to kill somebody, the law is not going to protect you,” said attorney Maria T. Vullo, who argued the case for Planned Parenthood.
Horsley responded by adding Rymer and her colleagues who signed the majority opinion to the Nuremberg Files. Horsley calls them “six baby-butchering justices.” On his Web site he writes that “some changes are going to be made,” but doesn’t elaborate. Since the injunction prohibited only the publication of the “DEADLY DOZEN” data, Horsley is not breaking the law by adding new information. He continues to post data about doctors and clinic administrators in the United States as well as in Australia, the United Kingdom, and Canada who are not covered by the court’s ruling.
Horsley was on the losing end of another federal appeals court case on May 28 in Atlanta. The case stems from a confrontation between Horsley and talk show host Geraldo Rivera four days after the 1998 assassination of Slepian. Rivera charged on his CNBC “Upfront Tonight” show that “in listing these people’s names and their addresses and their Social Security number, what you [Horsley] are doing, in my opinion, is aiding and abetting a homicide.”
Horsley filed a libel and slander suit. Rivera argued that his opinions of Horsley were constitutionally protected. The trial court judge didn’t agree and Rivera appealed. A three-judge panel of the 11th U.S. Circuit Court of Appeals concluded that “a reasonable viewer would have understood Rivera’s comments merely as expressing his belief that Horsley shared in the moral culpability for Dr. Slepian’s death, not as a literal assertion that Horsley had, by his actions, committed a felony.” It is not clear if Horsley will pursue the case.
Frederick Clarkson has written about politics and religion for 20 years. He is the author of “Eternal Hostility: The Struggle Between Theocracy and Democracy.”
For more information:
Also see Women’s Enews, October 11, 2001:
“Appeals Court to Rehear Nuremberg Web Site Case”:
Also see Women’s Enews, March 30, 2001:
“Accused Killer Part of Anti-Abortion Underground”:
Planned Parenthood vs. American Coalition of Life Activists
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