ABORTION INDUSTRY IN MELBOURNE, FLORIDA
THE WALL STREET JOURNAL, February 10, 1999
ACLU Backs Free Speech for All Except Pro-lifers
By ROBYN E. BLUMNER
"I disapprove of what you say, but I will defend to the death your right to say it."
What Voltaire said more than 200 years ago could easily serve as the motto of the American Civil Liberties Union. The right to express unpopular opinions, advocate despised ideas and display graphic images is something the ACLU has steadfastly defended for all of its nearly 80-year history.
But the ACLU, a group for which I proudly worked as executive director of the Florida and Utah affiliates for more than 10 years, has developed a blind spot when it comes to defending anti-abortion protesters. The organization that once defended the right of a neo-Nazi group to demonstrate in heavily Jewish Skokie, Ill., now cheers a Portland, Ore., jury that charged a group of anti-abortion activists with $107 million in damages for expressing their views. Gushed the ACLU's press release: "We view the jury's verdict as a clarion call to remove violence and the threat of violence from the political debate over abortion."
Were the anti-abortion activists on trial accused of violence? No. Did they threaten violence? Not as the ACLU or Supreme Court usually defines it, when in the context of a call for social change.
The activists posted a Web site dripping with animated blood and titled "The Nuremberg Files," after the German city where the Nazis were tried for their crimes. Comparing abortion to Nazi atrocities, the site collected dossiers on abortion doctors, whom they called "baby butchers." The authors claimed their purpose was to prepare evidence for the future when, they hope, the law will reflect their view that abortion is murder. Murdered doctors had their names crossed out with a black line. The site also featured Old West-style "Wanted" posters that listed the names and addresses of abortion doctors, some offering cash rewards for anyone preventing abortions "through activities within [the group's] guidelines."
This is ugly, scary stuff. But it is no worse than neo-Nazi calls for the annihilation of the Jewish people, or a college student posting his rape fantasies about a fellow coed on the Web, both of which the ACLU has defended in the past.
None of the anti-abortion group's intimidating writings explicitly threatened violence. Still, the ACLU of Oregon refused to support the defendants' First Amendment claims. Instead, it submitted a friend-of-the-court brief taking no one's side but arguing that speech constitutes a physical threat only when the speaker intends his statement to be taken as one.
The judge rejected the ACLU's standard, instructing the jury instead to find a threat whenever "a reasonable person" could foresee that the words could be taken as threatening. This is a much looser definition of a threat, in which the listener's potential reaction controls the speaker, forcing the speaker to guess at how his words will be construed. He risks bankruptcy if wrong. A verdict based on this faulty standard should be challenged, not cheered.
Before anti-abortion zealots started getting sued, the ACLU had much more tolerance for menacing speech. Few of the 20th century's great social movements were entirely peaceable. The labor, civil-rights, antiwar, environmental and black-power movements were an amalgam of violence, civil disobedience and highly charged rhetoric. But to gag fiery speakers who call for harm to the establishment because others in the movement pursue their political goals with fists, guns or bombs would do terrible damage to strong, emotive pleas tot social change. It is something neither the ACLU nor, thankfully, the courts have countenanced in the past.
That's why in 1969 the ACLU helped defend a Ku Klux Klan member who had called for violence against the president, Congress and the Supreme Court. At the ACLU's urging, the Supreme Court ruled that speech advocating violence was constitutionally protected unless it incited imminent lawless action and was likely to produce such action. This case was later used to defend the speech of black militants.
The ACLU also applauded a 1982 Supreme Court decision that found that speeches promising violent reprisals were protected by the First Amendment. During the civil-rights movement, a leader of the NAACP called for "breaking the necks" of blacks who violated a boycott of white-owned businesses in Mississippi, and published a list of those who did. Some of the boycott violators were beaten. The court ruled that despite the atmosphere of fear, all the speeches and lists were part of a debate on a public issue that needed to be "uninhibited, robust, and wide-open."
Interestingly, the ACLU was more concerned with the free-speech rights of anti-abortion activists before a real case cropped up. Thus, when the Freedom of Access to Clinic Entrances Act was being considered in Congress, the national ACLU, a supporter of the bill, nonetheless warned that the bill could compromise free-speech rights unless its provisions on threats and intimidation were narrowly construed. In a 1993 letter to Sen. Edward Kennedy, the ACLU's executive and legislative directors wrote that the bill's legislative history should make clear that "only 'true' or meaningful threats of force are subject to prosecution," limited to cases in which "the speaker 'utter[ed] the words in an apparent determination to carry out the threat.'"
That definition of a threat is substantially more protective of free speech than the one offered by the Oregon ACLU. And the Oregon case is not the only one in which the ACLU has been reluctant to defend the rights of anti-abortion activists.
When the National Organization for Women creatively used the Racketeer Influenced and Corrupt Organizations Act against anti-abortion groups for their clinic blockades, the ACLU failed to object to the law's use against political advocacy groups. Yet the ACLU had vehemently objected to RICO's broad reach when the bill was first under consideration in Congress.
Then, in 1995, the national ACLU joined its New York affiliate in defending an injunction against anti-abortion protesters, arguing that the imposition of a moving buffer zone that kept protesters 15 feet away from people entering and leaving abortion clinics did not violate the First Amendment.
When the issue reached the Supreme Court, three ACLU affiliates (including the Florida affiliate, where I was executive director), were so appalled by the national organization's stance that we filed a brief opposing it. Our brief challenged the constitutionality of the floating buffer zones, which prohibited most protesters' from getting close enough to hand patients a leaflet or engage them in a conversation. The Supreme Court agreed the floating buffer zone violated free speech and struck it down.
While there have been occasions when ACLU affiliates around the country have represented anti-abortion protesters, the groups' commitment to abortion rights has tended to get in the way of their doing so. They see the anti-abortion-protester issue as a clash of two constitutional rights, free speech vs. reproductive freedom. This, however, is a misleading way of looking at the issue.
The right to choose abortion is constitutionally protected against governmental interference, not against interference by an activist. When Operation Rescue blocks entrances to abortion clinics, it is not violating the constitutional rights of patients; it is violating trespass law. The clash of interests at abortion clinics is between the First Amendment rights of protesters and the government's interest in protecting the public's health and safety. Throughout its history, the ACLU has routinely come out on the First Amendment side of that equation. Until now, that is.
Ms. Blumner is a columnist and editorial board member of the St. Petersburq Times.
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