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NEWS
STORY BY MAUREEN O'HAGAN |
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Did the plaintiffs feel threatened? Jim Newhall wasn't wearing a bullet-proof as a fashion statement.
Although this case focuses on the debate over abortion, Judge Jones has prohibited any testimony detailing the medical procedure. In other words, no pictures of fetuses will be allowed.
Last year, in a case that raised similar issues, the state Court of Appeals refused to uphold an anti-stalking order against abortion foe Paul deParrie because it would violate his right to free speech.
ACLU-Oregon filed a brief in this case saying that free-speech rights can be adequately protected if the jury is asked to consider the defendant's intent rather than just the plaintiff's reaction.
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Which is more powerful: the right to practice a legal medical procedure free from threats and intimidation or the right to free speech, a concept our founding fathers thought was so important they made it the first amendment to the Constitution? That's the question a federal jury in Portland will consider over the next few weeks in a civil trial in which several abortion providers claim they were threatened by anti-abortion zealots. The jurors' answer will depend on whether they view the evidence through a microscope, as the defense asks, or through a panoramic lens, as the plaintiffs request. Whatever they decide, it will shape the ongoing national debate over abortion and free speech. The plaintiffs are several abortion providers, including Portland doctors Elizabeth and James Newhall and two local clinics, who say that although the defendants didn't personally harm them, they've acted like terrorists, creating a climate of fear. The defendants--who include local activists Andrew Burnett, Dawn Stover and Catherine Ramey and the American Coalition of Life Advocates--claim their speech was protected. Much of the discussion at trial will focus on three items publicized by the defendants. First is the "Deadly Dozen" poster, the centerpiece of a campaign by the ACLA to spotlight certain doctors, including the Newhalls, for being guilty of "crimes against humanity"--that is, for providing abortions. Second is a project known as the "Nuremberg Files," an effort by pro-life activists to collect extensive information on abortion providers in preparation for the day abortion becomes illegal and providers can be tried in court for their "crimes." This information, some of which is posted on the Internet, includes some doctors' home addresses, the names of their children and the kinds of cars they drive. Third are petitions, signed by a number of the defendants, calling the murder of abortion doctors justifiable homicide. Lead defense attorney Chris Ferrara wants the jurors to zoom in and look at the evidence piece by piece, as if through a microscope. If they do so, the New Jersey lawyer believes, his clients' conduct will be seen as constitutionally protected free speech. "If you look beneath the surface," Ferraro said in opening arguments last week, "this case unravels almost instantaneously." For example, the Deadly Dozen posters were "presented [by Vullo] as some sort of terrible threat," Ferrara said in court. Yet when looked at closely, they contain no direct threats. Instead, the posters merely ask people to pray for the 12 doctors' salvation and write letters asking them to stop providing abortions. Even U.S. District Court Judge Robert E. Jones, who is presiding over the three-week trial, wrote in an October opinion that "no statement contained in the text of the Deadly Dozen poster...or the Nuremberg Files is expressly threatening." The aim of the campaign, Ferrara said, was to shame and expose abortion providers, not threaten them. Posters like the Deadly Dozen are nothing new in political protest. During the Vietnam War, anti-war activists put out "wanted" posters on people like Robert McNamara--posters that were clearly protected by the First Amendment. Ferrara makes a similar argument about the Nuremberg Files, which likewise contain no expressly threatening language. These documents have some similarities to government-sponsored Internet postings about sex offenders, which include an offender's picture, address, height, weight and car model. The information could make make the men, who have already served their time, easy targets of violence. As for the notion that abortion is a "crime against humanity," Ferrara says that is a constitutionally protected opinion--one that even the mainstream Catholic Church teaches. The same goes for the defendant's contention that killing abortion doctors is justified if it is done in the defense of human life. Several U.S. Supreme Court cases back up Ferrara's points in this area, stating that even the advocacy of violence can't be outlawed if it is done in the abstract. "This is a case about words," Ferrara argued in court. "This is a case about silencing what some people don't want to hear." Despite all that, many expect the free-speech argument to fail. Why? Because the plaintiffs, led by New York lawyer Maria Vullo, are asking the jury to pull back from their microscopes and look at those "non-threatening" words through a bigger lens. Doing so presents a frightening picture. In opening arguments, Vullo detailed a two-year spate of violence leading up to the lawsuit's filing. She began with March 10, 1993, the day Florida abortion doctor David Gunn was murdered by an anti-abortion activist, and continued through a number of other incidents, including the shooting of Kansas abortion doctor George Tiller by Grants Pass resident Shelley Shannon. Vullo explained how in several cases, posters with personal information about the doctors had been distributed prior to the shootings--posters that were similar to the Deadly Dozen and the Nuremberg Files. She went on to describe how, during this shooting spree, the defendants publicized their so-called "Defensive Action Statements." These petitions, signed by several of the defendants, said the killers were morally justified if they acted in defense of the unborn. Finally, she noted that the Deadly Dozen list was released three weeks after John Salvi shot and killed two women at a Massachusetts clinic. "No one who worked at a clinic was safe," Vullo argued. "Capitalizing on the fear, the defendants chose to make their targeting of plaintiffs as public as they could." In order to win the lawsuit, Vullo needs to convince the jury that a reasonable person would have felt threatened in the plaintiff's position. It's hard not to come to that conclusion, particularly considering the reaction of law enforcement officers. Liz Newhall testified that after the Deadly Dozen poster was released, the FBI recommended that she wear a bulletproof vest. The U.S. Marshall's office offered her round-the-clock protection. If they prevail, the plaintiffs will request a financial award, which could cripple the ACLA. That was the tactic Morris Dees used to disable the White Aryan Resistance in the wrongful death case he won against Tom Metzger in Portland. But things will get trickier when it comes to the plaintiffs' request for an injunction that would prevent the defendants from similar conduct in the future. As Ferrara points out in legal filings, the First Amendment makes this difficult. "Do plaintiffs really believe that this court could enjoin, for example, any further expression of the view that the plaintiffs are guilty of crimes against humanity?" he asks. "How about the view that abortion should be considered a war crime?...What about the publication of the names and addresses of any of the plaintiffs...or even a simple request to write, call, ask, persuade and pray for any of the plaintiffs?" Put Ferrara's arguments under a microscope and the answers get awfully murky.
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