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Feedback From Communitarian Update
Number 46
American Political Science Association Plenary Session IV: Civil Liberties and National Security After September 11
Nadine Strossen, president of the American Civil Liberties Union, and Michael Chertoff, Assistant Attorney General of
the Criminal Division of the United States Department of Justice, will be the guest panelists for the annual APSA Plenary
Session on Civil Liberties and National Security, to take place in Boston on August 31. Panelists will discuss public
safety and individual rights post 9/11, and there will be extensive time for questions from the audience. Dr. Amitai Etzioni,
University Professor and director of the Communitarian Network, will be chairing the session.
"American Society in the Wake of Terrorism: Communitarian Perspectives"
Thursday, September 5, 2:00 p.m.
Zenger Room, The National Press Club, 529 14th Street, NW
Have the terrorist attacks had any lasting effects on American society, and if so, how has it changed? Is American society
more communitarian in its approach to volunteering and collaborating in an effort to prevent future terrorist attacks? Are
Americans less materialistic and more family-focused? David Brooks, Senior Editor for The Weekly Standard; Amitai Etzioni,
University Professor and director of the Communitarian Network, Seema Nayer, Editor of American Demographics; and Alan Wolfe
Director of the Boisi Center for Religion and American Public Life and professor of political science at Boston College will
address these questions. This event is free and open to the public. No registration is required.
Copies of Fish Symposium still available!
What implications, if any, do the September 11 attacks have on the past, present, and future of postmodern thought? Does
being a "postmodernist" or "cultural relativist" mean that you can't condemn terrorism with any moral authority? These are
among the many questions that Richard Rorty, Benjamin Barber, David Novak, Cass Sunstein, William Galston, and others address
in the next issue of The Responsive Community when they respond to Stanley Fish's essay, "Blaming Postmodernism"; Fish presents
a rejoinder. Subscribe to The Responsive Community now by visiting:
http://www.gwu.edu/~ccps/rcq or call us at (800) 245-7460.
FEEDBACK FROM COMMUNITARIAN UPDATE #46
We asked:
An anti-abortion activist, Neal Horsley, runs a Web site called the Nuremberg Files, which carries abortion providers'
names, addresses and photos and crosses out their names when they've been killed. (Others post pictures of women entering
abortion clinics.) Mr. Horsley believes maintaining this site is part of his constitutionally protected right to free speech.
The doctors who are named on the site believe the site not only violates their privacy, but also constitutes an explicit threat.
Should such a site be protected by the First Amendment? (Read more in the Wall Street Journal, 5/28/02)
Here are all the responses we received.
I am familiar with the legal case surrounding this and think your short summary was great, but always believe the more facts, the
better. Not only is the website at issue in the legal case. The defendants, including the American Coalition of Life Activists,
used "Wanted" posters of abortion providers, the same style poster used to depict abortion providers Drs. Britton and Gunn in
Florida before they were fatally shot. Defendants in the case embrace and endorse the use of violence to stop what they believe
is the greater evil of abortion -- logic that is truly terrifying to anyone involved in the struggle for the freedom to choose.
As you noted, the legal question is whether the website and the wanted posters, in the context of the violence experienced by
abortion providers, constitutes a true threat against the plaintiffs. Recall that the First Amendment is not "absolute" despite
what some claim -- indeed, some speech is carved out and criminalized: those who ask competitors to join in a bid rigging scheme;
true threats to kill someone are another example. In my judgment, and given the huge number of arsons, bombings, trespasses,
blockades, threats and several murders, I certainly think that the website and the wanted posters constitute a true threat.
Betsy Cavendish
VP, NARAL Foundation; Legal Director, NARAL
I normally am a pretty strong advocate for protection of speech. But in this case we have to find the underlying *purpose* of
this website. The true objective apparently is not to express a viewpoint on abortion, but rather to establish a not-too-subtle
"hit list" of physicians who perform abortions. By identifying the names and locations of these individuals and "celebrating"
successful attacks, Horsley is tacitly encouraging certain anti-choice zealots who are prone to violent behavior to kill these
people. Thus, this becomes more a form of conduct and less a form of speech.
Here we are asked to consider a range of civil liberties interests: A doctor's rights to perform lawful medical procedures
and to be free from violent, life-threatening behavior. A patient's right to reproductive choice. And Horsley's right to
freedom of expression. On balance, the rights of the doctor and the patient should trump Horsley's right to engage in this
*particular* form of expression. Horsley would remain completely free to express his views on abortion in general, on the
web or anywhere else.
David Yamada
Professor of Law
Suffolk University Law School
Boston, MA
We all know that freedom of speech exists so long as speech remains meaningless. The first amendment is like an invitation
for everyone to come to Hyde Park, everybody gets to say whatever they want, and it is precisely because of that fact, that
all dissenting opinions are marginalized not as a legitimate alternative to the status quo, but as "crazy talk." This case
of course is different. This is a speech that encourages its listeners to a specific practice, namely, the practice of
murder. Freedom of Speech is a tool of marginalization. Because everyone can say whatever they want, none of it matters.
The party line stays strong in the midst of "ridiculous" alternatives. So what happens when a person says something that
encourages individuals or groups to embrace an alternative reality, and with that alternative reality, concrete practices
that ensure the establishment of that reality? The party line is in danger, and a tool that is used to marginalize dissent
and deconstruct creative dialogue becomes.
Tristin Hassell
Postgraduate Student at the University of Edinburgh
I think Horsley is a complete idiot. This isn't a question of Free Speech (which I support unconditionally); it's a matter
of Homicide (which, last time I looked, was still against the law).
Rick Hauptman
CA Democratic Party
San Francisco, CA
Related to the Nuremberg Files is the recent, controversial 6-5 en banc 9th Cir. decision in Planned Parenthood v. American
Coalition of Life Activists (which I think is likely to have cert. granted). Horsley was not a defendant, but the group and
individual defendants used information about the Nuremberg Files as part of the posters used in their protest actions. The 6
person majority (mostly centrists) found that the actions of the defendants constituted "true threats" hence were unprotected
by the 1st amendment. No "actual" threat was made (e.g., the posters didn't suggest that the doctors be attacked or physically
harmed) but the conjunction between the fact that plaintiff doctors were identified as abortionists when, earlier, other doctors
had been and had subsequently been murdered was held to be enough. (There was no showing that the defendants were associated with
any of the murderers of the other doctors or were otherwise involved in those crimes.) Something not mentioned in the majority
opinion is that the defendants claimed that the main purpose (aside from dissuading the doctors from doing abortions) was to
create a list of those involved in "crimes against humanity" when a future Nuremberg like trial was created to punish such persons.
The posters lamented that the lack of such a list after WWII made it impossible to prosecute those who committed Nazi atrocities
other than the party leaders such as Goering. The dissent included two of the most liberal and two of the most conservative members
of the circuit, and regarded the posters as protected by NAACP v. Claiborne Hardware and Brandenberg. The issue of whether the
doctors could sue for invasion of the right to privacy was never raised in the trial court (or in the en banc court of appeals
decision) though Judge Kozinski in the (now vacated) panel opinion noted that its opinion did not deal with whether there such
an action would be viable, or whether there might be a 1st Amendment defense to such an action.
I should also note that in Europe, under the European Court of Human Rights precedents concerning Article 10 (the freedom of
expression provision of the European Convention of Human Rights) I think it likely that a ban on such posters would likely be
upheld. There are no cases that are directly on point, but the general tenor of decisions of the Human Rights Court (and many
national courts, especially in Germany and in France) is that free speech cannot, inter alia, seriously harm or affect another
person. (Article 10(b) sets out twelve different reasons why free speech can be suppressed under appropriate circumstances.)
In other words, free speech is a value, but other values may outweigh it. Germany has banned speeches denying (or even downplaying)
the existence of the Holocaust and France has fined Jean-Marie Le Pen a substantial amount for asserting that the Holocaust is
only a footnote in the history of WWII. The Court of Human Rights has upheld the banning of movies (by Austria and by England)
which offend the religious sensibilities of the public and the confiscation in Switzerland of an exhibition of paintings which
depicted sexual acts (though the paintings were clearly not even close to being "obscene" if judged under American law).
With that preface, as to what I think, first of all, I think one has to look carefully at what is actually being "said"
verbally or on the posters. I think on the facts of the case, the dissent in Planned Parenthood is correct and I think
it is reasonably likely that the Supreme Court will concur. I don't agree with the abortion protesters, but I think it
is a valid public issue and wide range of views should be permitted. In a formal sense, the "posters" were less threatening
than the cry of "we'll break your damn necks" if the boycott was violated in that no actual threat was made in them. Though
I don't think there should be, or ever will be a Nuremberg like trial for abortionists, I cannot say that "preserving evidence"
in the event should be beyond the protection of the 1st Amendment.
The posters gave both names and home and office addresses of the doctors singled out for attention. Is publishing home
addresses over the line? Would the posters have been protected if they had only names. If publishing names is enough to
make the posters actionable, is that tantamount to saying that "evidence" of what the protesters think is a crime which
someday will be punished (just as Nazi's were eventually punished--the analogy the defendants make) is NOT protected by
the 1st Amendment.
The Wall Street Journal article you refer to raises the right of privacy issue as to two groups of people, abortion
providers and abortion seekers. The WSJ had a poll in connection with the article and 3/4ths of the responders thought
it was a violation of the right of privacy as to the women seeking abortion. I agree. As to the abortion providers, I
would be worried that aggressive use of right to privacy claims would have a chilling effect on the 1st Amendment rights
of those who, however wrongheaded, believe that abortions should be banned and those who commit them should be punished.
I realize that I haven't been brief, but the issue (and related case) is of particular interest to me.
Paul L. McKaskle,
Professor of Law,
University of San Francisco.
P.S. I don't know the protocol of "tell[ing you] what [I] think!" So, I just replied to the sender alone, rather than to
"reply all". I trust you can deal with it accordingly. Also, I am a reader of the Economist, and I don't think it is mis-named.
The ant-abortion web page is simply the theater in which one cannot yell fire. In other words, the "speech" cannot be
understood in first amendment protection terms outside of it's context. In this case we know that ant-abortion foes have
targeted doctors for harassment, assault and even murder. We also know that the acts of these individuals are part of a
well orchestrated and co-ordinated campaign. Speech that is designed to further that harassment and identify and target
doctors for assault should not be protected as long as this campaign persists.
Victor Goode
Associate Professor
CUNY Law School
How ironic that someone running a site called the Nuremburg files advocates murder, yet claims free-speech for themselves.
Apparently Mr Horsley does not really know much history. He should consider the actual Nuremburg trial of Julius Streicher.
Streicher killed no one directly. He had no direct involvement in the death camps. He "simply" ran a newspaper (like
Horsley's modern day web site) that promoted fanaticism and murder, filled people with hate and advocated persecution of
people for their beliefs and actions. The Nuremburg court found that the murders in camps (just as modern day murders of
physicians and health workers) "could never have happened had it not been for him and those like him. Without him, the
Kaltenbrunners, the Himmlers ... would have had nobody to carry out their orders."
I am a pro-free speech advocate who, with Voltaire, may disagree with what you say, but will defend to the death your right
to say it. That said, free expression ends, goes the old aphorism, where the other person's nose begins. No one has the
right to advocate, even indirectly, the death of a president. Regular citizens are just as important as politicians. No
matter how indirect it may seem, the Nuremburg files advocates death of identified people. And as such, it advocates hate
crimes, which are crimes against people who are of a certain and identifiable class or group. Medical workers are such a group.
Mr Horsley is in the same moral position as Julius Streicher. The only difference is that I do not believe in the death penalty.
Dr Daniel Jordan
I agree that publicizing information specifically related to abortion providers should be considered threatening behavior.
It seems to me that issues that have strongly polarized the community can often lead to violence, and pointing a finger at
people who might be a target of one side of the issue is dangerous. I don't think it's a privacy issue per se, since taking
a public stand on an issue naturally opens one to the view of others. A recent other example of this is the fellow who
received death threats when he sued to have the pledge of allegiance cleansed of religious terms.
Charles Freifeld
Brookline, MA
January 1943 I received a letter from President Roosevelt informing me that Hitler had built many Murder Mills and was
killing Jews and others as fast as he could. I learned that I, and many others were needed to go to Germany and shut down
this wicked program. So we built a great military force, with guns and explosives, and stopped this terrible slaughter.
Now our USA Murder Mills are outdoing Hitler by more than 4 to 1. Although I am old and nearly worn out, I would like a
similar letter from President Bush.
IN GOD WE TRUST
Jack Dearth
Eugene, OR
Regarding Neal Horsley's Website, I do not believe that the First Amendment was ever intended to protect intimidating,
threatening or harassing speech, such as Horsley's, and that the framers of the Bill of Rights would be dumbfounded by
such a claim, regardless of whether or not they supported abortion rights.
Jim Flechtner
Findlay, OH
It is an unarguable & unhinderable right to oppose abortion if one feels that the law which allows those who choose
to perform or to have abortions is morally wrong. But it is a moral repugnancy of Orwellian magnitude for any person
or group opposed to abortion to ostracize, vilify, or pillory individuals who perform or who have abortions under the
law of the land; it is beyond Orwellian & morally despicable & odious to, either alone or in concert with others,
subject the performers of abortions or their patients to Horsley's sort of barbaric pogroms. The proper avenues of
protest are: the freedoms of speech & of public assembly for the purpose of proclaiming one's, or one's group's,
views; the ballot box; or direct communication with one's elected representatives.
It also seems to me that three simple Kindergarten principles apply: mind your own business; if it isn't yours,
don't touch it; & keep your hands (& your databases & camcorders & websites) to yourself.
I could not, cannot, & never will conceive or bear children. This tends to make me believe that, were I able to
conceive or bear children, I should never even begin to consider having an abortion. But my sense of self & my morality,
so long as they are within the law & within the bounds of common courtesy & respect for the privacy of others (i.e.,
the common good), do not confer upon me the power to persecute persons who exercise their right to freely make personal
choices under the law - even if I believed that the law under which those persons exercise their choice is fundamentally
evil. I would never presume to try to influence the free choice of others under the law, but if I found a law to be
in contravention of my personal beliefs I should exercise my rights of free speech & assembly to change that law -
not the behaviors of people under that law. That is where the line is, & must be, drawn. Let no one cross it except
at swift & certain peril of their liberty.
If we Americans lived under the heel of a totalitarian system in which there were no means of expressing dissent
except to resort to the most extreme measures, from ad hominem attacks all the way to armed rebellion, then I
could understand why the Neal Horsleys of the world act as they do. But we do not live under a totalitarian regime
that brooks no dissent; we live in a free society that allows each of us genuine & unhindered avenues of protest
without anybody's having to resort to trampling on or abrogating the lawful rights of others. Because there are
ample means for the expression of dissent, none of which involve stooping to behave like a member of the
Sturmabteilungen, the Neal Horsleys of the world should feel abjectly ashamed of themselves. Before all that
free people hold sacred I stand ashamed for them & for anybody who mistakes liberty for license.
It also occurs to me, as it should also occur to anybody with their senses in working order, that it is persons
of Horsley's ilk, & groups such as his ilk populate, that routinely oppose sex education & condom distribution.
If the Horsleys of the world must be against the ounce of prevention, then they have nothing but a ton of banana
peels on which to stand when it comes to their claiming the right to lay caltrops & mines & ambushes in the path
of those who, as a result of such Horsley's asses' narrow mindedness, myopia, & bloody minded persecution, then
find it necessary to avail themselves of the pound of cure. The Neal Horsleys of this world want to have their
cake & eat it too while, at the same time, they seek to make others go without cake. It is time to tell & to show
them, in no uncertain terms, that they must choose to eat their cake or to watch it dessicate before their eyes, &
to let others also have cake & to then enjoy the choice to eat it or not.
Our Constitution guarantees each individual the unfettered freedom of worship; it does not guarantee anybody the
liberty, or license, to harass & persecute others who do not share their beliefs. Just as each of us is free,
under our Constitution, to recite The Pledge of Allegiance with the words "under god", or to recite it without
those words, so does the Constitution guarantee each of us absolute personal freedom of reproductive choice. The
Horsleys of this world have every right to worship as they find fit, yet they have no right to presume to stand-in
for their deities in order to impose upon others the punishments they can only presume their deities would impose -
else we should allow & encourage the Horsleys & the Bin Ladens of this world to terrorize others at will.
We live under a government not of men - especially of men who would impose their religious beliefs on others,
but of laws. It is our national duty to guarantee that we will have in our republic no Taliban at liberty to
humiliate, intimidate, or persecute women or men.
Jordynne Olivia Lobo
Mr. Horsley's view of the First Amendment is self serving. The District Court and Ninth Circuit on banc got
the issue right in the litigation against Horsley's cohorts. As I tried to develop in a law review article (
The Nuremberg Files: Testing the Outer Limits of the First Amendment, 61 Ohio State Law Journal 1175 (2000)),
Supreme Court precedent does not support Horsley's claim. Inciting violence may be criminalized when it poses
a meaningful and immediate threat and the person's speech must be viewed in context. Here, we know Horsley's
views about abortion: killing is justified because the lives of "murdered" fetuses outweigh the lives of abortion
providers. His providing personal information about abortion providers seems to be intended to aid people who
want to intimidate or murder abortion providers. The harm threatened by Horsley's speech (the murder of abortion
providers) is real and immediate. The First Amendment is not a shield to protect people who intend to aid criminal
conduct.
Michael Vitiello
Professor of Law
McGeorge School of Law
Sacramento, CA
I would ban/close this website as dangerous, a threat to pubic safety and all the other reasons mentioned.
If this can't be done, I would imprison the author, or compel her by law to close the web site. It is the idea
of forcing you beliefs on other people associated with making or inviting real threats, that makes this activity
so obnoxious.
Dr. Sonja Boehmer-Christiansen
Reader, Department of Geography
Editor, Energy & Environment
University of Hull
Hull UK
Read in context, this internet site does involve an implicit threat, and an invitation to get involved in violent
activity. Given that the message goes beyond the boundaries of ideology, and is as narrowly focused as it is, on
particular individuals, my own view is that even the normal requirement that "speech" generate "imminent" risk of
harm before regulation/prohibition is justified does not apply; this is simply criminal activity, not speech at all.
Thomas B. McAffee
Professor of Law
William S. Boyd School of Law, University of Nevada, Las Vegas
Free speech does not include the right to assault, which is what his threats constitute!
Robert Moffat
At this point in time posting the names of abortionists on a website may be legal. Like so many other decisions
in our society what is legal is not necessarily moral. Abortion for many Americans falls into that category. The
line in this case may well be crossed from immoral to illegal only when someone on the list is killed as a result.
At that point in time Mr. Horsley could be accused of an act tantamount to yelling fire in a crowded theatre
when there is no fire. Someone may get killed as a result of this action and then Mr. Horsley will be held accountable.
Patricia De Grinney
Scarborough, ME
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