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American Constitutional Law
, Volume Two
Gregg Ivers, American University
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| | Case Problems
Chapter Four: Freedom of Speech, Assembly, and Association
Crossing the Threshold from Free Speech to Imminent Lawlessness
| The Case |
In July 1997, a pro-life organization called Life Above All Else (LAAE) unveiled a web site that featured "wanted" posters for physicians who provided abortions and family planning services. Visitors to the site could identify abortion providers in their local communities by typing in their local zip code. This feature, of course, also allowed site visitors to identify abortion providers anywhere in the United States. The searchable database provided a photograph of registered abortion providers, their home and professional addresses, their license plate numbers and, in some cases, the names of their spouses and children accompanied by a photograph. The banner above each doctor's file read, "Wanted For The Murder of Innocent Children." The LAAE site did not specifically advocate violence against abortion providers. But language on the site referred to abortion as "genocide," described abortion providers as perpetrators of "a Holocaust against the innocent and unborn," and claimed that LAAE was engaged in a "war against evil" that would "be won by any means necessary."
On three separate occasions after the LAAE web site went up, abortion providers in Dallas, Chicago and Boston were beaten near their homes after they returned from work. On another occasion, an abortion provider was shot and killed in the parking lot of the family planning clinic he owned and operated. In each case, the perpetrators were arrested and convicted for their crimes. In the murder case, the perpetrator entered a claim of self-defense, claiming that she was protecting "the innocent and unborn" from the "barbarians." Juries in all four cases convicted the perpetrators unanimously and with little difficulty. During their respective trials, prosecutors introduced uncontested evidence demonstrating that the perpetrators were contributing members of LAAE and had obtained information about the assaulted and murdered doctors from the group's web site.
After the murder case, Family Planning International (FPI) and the National Association of Abortion Providers (NAAP) filed suit against LAAE, claiming that group's "Wanted" feature on its web site encouraged individuals to attack abortion providers. The First Amendment certainly protected the right of LAAE to oppose and actively discourage abortion, the plaintiffs stated, but the "Wanted" feature crossed the threshold from free speech to imminent lawlessness by directly inciting individuals to engage in violence against abortion providers. FPI and NAAP also claimed that LAAE's web site violated the Federal Access to Clinic Entrances Act passed by Congress in 1994. Although the LAAE members accused of engaging in violence against abortion providers were not physically blocking access to the health care facilities defined in the law, FPI and NAAP argued that the intent and purpose of the access law was to reach any behavior that intimidated doctors and patients.
FAAE responded that it could not be held responsible for the actions of individuals who visited its "Wanted" site. It argued that its site was no different than any other advocacy group espousing an unpopular cause, and that the First Amendment was designed precisely to protect the rights of controversial speech. FAAE did not advocate violence against specific individuals, and defended the information it published as essential to communicating more directly with individuals it deemed to be in violation of the law.
Questions
1.Does the First Amendment protect the right of FAAE to post the “Wanted” feature on its web site?
2. Do laws such as the Federal Access to Clinic Entrances Act violate the First Amendment?
3. Is the "imminent lawlessness" standard established in Brandenburg v. Ohio (1969) too restrictive or permissive in dealing with potential conflicts with governmental interests?
4. Is it possible to analyze First Amendment free speech claims without considering the content of the speech in question?
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