- The Washington Times - Tuesday, May 28, 2002

Which is more dangerous to democracy and the rule of law: punishing speech that celebrates terrorizing opponents while leaving limitless other methods of protest, or permitting that which falls worrisomely close to an assassination order?

You decide, edified by the 6-5 ruling of the U.S. 9th Circuit Court of Appeals in Planned Parenthood of the Columbia/Williamette Inc. vs. American Coalition of Life Activists (ACLA) (May 16, 2002). There, the court held prolife irreconcilables to Roe vs. Wade liable for threatening harm to four named physicians with the effrontery to exercise their rights to perform abortions.

Before examining that case, however, deliberate the following parallels:

• In 1963, a Baptist Church in Birmingham, Ala., is bombed by Klansman because it was the headquarters of black voting rights proponents. Four little black girls die.

Within a year, James Chaney, Andrew Goodman and Mickey Schwerner, three civil rights workers are murdered in Mississippi by Klansman and the Imperial Wizard for championing the 15th Amendment prohibiting racially discriminatory voting laws.

In 1965, Viola Liuzzo is likewise executed by the Klan for the audacity of seeking to register black voters in the South.

In the wake of these villainies, a Klan leader summons his flock to a large public park in Selma, Ala. Many others also attend. He reads the names and addresses of four individuals whom he declares guilty of helping to register qualified black voters. He then rhetorically asks the four before continuing their civil rights heroism to think long and hard about the gruesome fates of their predecessors in 1963, 1964 and 1965. He urges them to renounce their reckless courage.

The quartet are frightened of Klan retaliation, but persist with bulletproof vests. They also successfully bring suit against the KKK preacher for threatening physical harm. The constitutional defense of free speech to expostulate against voting rights for blacks is rejected.

• Next consider this hypothetical snapshot during the Weimar Republic of Germany. Foreign Minister Walter Rathenau, a Jew, is assassinated in 1922.

Within a few years, Adolf Hitler authors "Mein Kampf," teaching the necessity of exterminating Jews to save Aryan civilization. Hitler leads his Nazi followers goose-stepping up and down the streets of Berlin and Munich. He remonstrates against Jews in the civil service, the professions, or businesses of any sort. He praises the blood libel and the "Protocols of the Elders of Zion" for allegedly exposing the malevolence of the Jewish people.

He recruits the notorious "Brownshirts" or SA thugs to guard his safety and wreak havoc against opponents.

Hitler then delivers a speech in a public coliseum to his political myrmidons. He identifies with vileness the names and addresses of four Jewish physicians. He accuses all of the "crime" of treating Aryan patients. He apotheosizes the murderer of Foreign Minister Rathenau. He concludes by praying for the day when Germany will be "Judenfrei" and the Star of David will be superfluous. Hitler is then arrested, prosecuted, and convicted for intimidating or threatening the lives of the named Jews. His defense of free speech to denigrate Jews is denied.

Is there anything materially different from the partially genuine hypotheticals and the facts of ACLA?

On March 10, 1993, Michael Griffin assassinated Dr. David Gunn as the physician entered an abortion clinic in Pensacola, Fla. The crime arrived in the wake of two posters featuring the abortion provider's name, photo, address and other personal information. One accused him of killing children, and being heavily armed and "very dangerous." The individual defendants in ACLA urged Mr. Griffin's acquittal on a theory of justified homicide.

A second edition of the Gunn assassination was written on Aug. 21, 1993. The new victim, Dr. George Patterson, operated the clinic where Gunn had worked. A "wanted" poster had been circulated prior to the crime indicating where Patterson performed abortions.

In July 1994, a third abortion provider, Dr. John Bayard Britton, was murdered after an "unwanted" poster exposed personal identifying information and charged him guilty of crimes against humanity.

Exploiting this grim background, the ACLA defendants touted a Deadly Dozen poster during a Jan. 25, 1995, press conference. Thirteen named abortion providers were pronounced guilty of crimes against humanity.

Personal identifying information against all were disclosed. And, a $5,000 reward was offered "for information leading to the arrest, conviction and revocation of license to practice medicine." The Deadly Dozen poster was reproduced in other media the following year. The FBI, steeped in the Aesopian subtexts of extremists, volunteered protection to the doctors identified in the poster, and advised them to wear bulletproof vests and take other security precautions, which they did.

Also in August 1995, a minor adaptation of the Deadly Dozen poster was unveiled by ACLA providing the home and business addresses of abortion provider Robert Crist and finding him guilty of crimes against humanity.

At its January 1996 conference, ACLA displayed the Deadly Dozen poster, held a "White Rose Banquet" to canonize criminals guilty of anti-abortion violence, and provided a premiere showing of its "Nuremburg Files" website.

It lists 200 (including the named abortion providers in ACLA) labeled as "Abortionists: the shooters." That section bears the chilling legend:

"Black font (working); Greyed-out name (wounded); Strikethrough (fatality)."

The names of Gunn, Patterson, and Britton are struck through.

A jury found the ACLA defendants liable under the Freedom of Access to Clinics Entrances Act. It prohibits threatening force to intimidate any person for providing constitutionally protected reproductive health services. The verdict pivoted on the finding that defendants published the posters and Nuremberg Files with the specific intent of frightening the targeted abortion providers from their occupation.

What seems remarkable is not that the 9th Circuit sustained the verdict, but that five judges insisted that freedom of speech to militate against abortion was transgressed. Does anyone seriously believe the tightly circumscribed ACLA ruling portends a muzzling of the vast panorama of prolife protests and arguments?

The ACLA dissenters fretted over a potential "slippery slope." But all civilized law is a matter of degree. A judge incapable of drawing sensible lines is unfit to judge.

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