Little-enforced law opens window for suits against extremist groups
Then later that year, ACLA unveiled a second poster, this time targeting Dr. Robert Crist, an abortion provider in Kansas City. The poster listed his home and work addresses and featured his photograph. It offered $500 to “any ACLA organization that successfully persuades Crist to turn from his child killing through activities within ACLA guidelines,” which prohibited violence.
The following January, ACLA created the “Nuremberg Files” — a series of dossiers it had compiled on doctors, clinic employees, politicians, judges and other abortion rights supporters. Dr. George Tiller of Wichita, Kans., who was killed Sunday, was among them. They would be prosecuted, ACLA wrote, “once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.” ACLA sent copies of the dossiers to an anti-abortion activist who posted the information on a website. There, the names of those who had been attacked by “anti-abortion terrorists” — as the court called them — were listed, with a strike through the names of those who had been murdered. The names of those wounded were grayed.
Although neither the posters nor the Website contained explicit threats against the doctors, similar posters had previously been made of other doctors shortly before they were violently attacked; one was murdered. Abortion providers soon took to wearing bulletproof vests, drew the curtains of their home windows and received protection from U.S. Marshals. The strategy had worked.
Eventually, some of the doctors, represented by Planned Parenthood, sued ACLA, twelve activists and an affiliated organization, claiming that their actions violated the federal Freedom of Access to Clinic Entrances Act, or FACE act, among other laws. At trial, a jury found that the statements were “true threats” and therefore not protected by the First Amendment. The doctors won $107 million in damages and an injunction barring the anti-abortion activists from distributing similar information in the future.
Although the anti-abortion protesters appealed, a majority of judges on the Ninth Circuit Court of Appeals affirmed the verdict. Such “WANTED”- style posters, the court ruled, in the context of previous similar threats and subsequent violence, and the lines drawn through the names of doctors who’d been murdered, were not protected by the First Amendment: “ACLA’s conduct amounted to a true threat and is not protected speech.” The Supreme Court declined to review the case, and it remains good law.
Much of the discussion in the wake of Tiller’s slaying has been about criminal prosecution of those who murder abortion doctors. But there’s a growing concern about the anti-abortion extremists — some call them domestic terrorists — who enable and encourage such murders by labeling abortion providers “mass murderers”, Nazis and worse, and implying that violent attacks against them are not only justified, but honorable.
As Rachel Maddow revealed in chilling detail in her MSNBC news show on Monday night, groups such as Rescue America, Prayer and Action News, Army of God and Operation Rescue Founder Randall Terry all appeared to be celebrating Tiller’s murder on Monday. And while extremists who promote violence against abortion providers could be prosecuted under state and federal law — and particularly under the federal Freedom to Access Clinic Entrances (FACE) Act — the federal government in recent years has hardly prosecuted any such cases.
According to statistics provided by the Department of Justice, the Bush administration brought only about two criminal prosecutions per year in the entire country under the FACE Act , and never more than four in any single year. The Clinton administration, in contrast, prosecuted 17 defendants for violations of the FACE Act in 1997 alone, and an average of about 10 per year since the law was enacted in 1994. Those cases included one against a woman in 1996 who yelled through a bullhorn to a doctor, “Robert, remember Dr. Gunn. This could happen to you …”, referring to Dr. David Gunn, the first abortion doctor ever murdered, in 1993. In another case, a man who parked a Ryder truck outside a clinic shortly after the bombing of a federal building in Oklahoma City, where a Ryder truck had been used to carry explosives, was found to have threatened force. Stalking, arson and bomb threats are also illegal.
Whether the dropoff in prosecutions is because the FACE Act successfully deterred crimes after its enactment or because the Bush administration wasn’t interested in prosecuting them is not clear. “The amount of activity really did drop a lot after FACE was enacted and it was beginning to be enforced,” said Cathleen Mahoney, Executive Vice President of the National Abortion Federation who was an attorney in the Justice Department until 2006. “Certainly the political will wasn’t there.”
That’s disappointed Janet Crepps, deputy director of the legal program at the Center for Reproductive Rights. “I don’t think that the government has done enough,” she said, noting that while the Clinton administration had created a task force in the Department of Justice to coordinate responses to clinic threats and violence, during the Bush years, “we’ve heard that providers during that time would call DOJ for help and get no response.”
Justice Department spokesman Alejandro Miyar said Tuesday that the task force still exists, and in a statement released after the fatal shooting of Dr. Tiller, Attorney General Eric Holder said that “[f]ederal law enforcement is coordinating with local law enforcement officials in Kansas on the investigation of this crime.” It remains to be seen, however, whether the government will also investigate the anti-abortion activists who threaten abortion providers and may have worked with the actual murderer.
But as the Planned Parenthood case illustrates, the doctors and clinic workers who are targets of violent threats don’t have to wait for the government to act. The FACE act allows doctors or clinic workers to privately sue the individuals and groups making the threat. And although that’s been challenged on First Amendment grounds, its use has been upheld by the courts in cases where the intent to threaten or intimidate was clear.
The lawyer who represented Planned Parenthood in that case declined to be interviewed for this article, citing the sensitivity surrounding the issues, lack of knowledge of the circumstances of Dr. Tiller’s death and respect for his family. But several lawyers confirmed that the case, last litigated in 2006 when the anti-abortion groups tried to appeal to the Supreme Court, could serve as a model for others.
“It’s very fact-intensive,” said Mahoney, from the National Abortion Foundation. “It really depends on the particular circumstances. We would say that people should not be allowed to threaten anyone for providing legal medical services.” In addition to a private right to sue, state attorneys general can also enforce the law within their states.
Some civil libertarians, however, have concerns. On “The Rachel Maddow Show” Monday, George Washington University Law Professor Jonathan Turley cautioned against prosecution or lawsuits against even those who promote violence. “We have this difficult line to walk between free speech and preventative law enforcement,” he said. “The Supreme Court has said that violent speech is protected … and it is in fact protected to say all abortion doctors should be killed.”
That’s not necessarily true under the FACE Act, however. The law specifically targets whoever “by force or threat of force … intentionally injures, intimidates or interferes with …” anyone who is a provider of abortion services or a patient trying to access them.
That’s not to say that FACE is sufficient or its enforcement is easy. “It’s penalties are significantly lower than many other federal criminal statutes,” said Mahoney, who was involved in criminal prosecutions under FACE in the justice department. The other difficulty, she acknowledged, is the “delicate balance” between protected speech and incitement to violence. While the law does make it a crime to “intimidate or interfere” with provision of abortion services, “there’s a lot of law about what’s a criminally actionable threat” that makes intimidating statements difficult to prosecute. “It’s not so much FACE as that whole body of law that’s the difficulty,” said Mahoney.
Avoiding such politically charged difficulties may be why the federal government appears in recent years to have avoided enforcing the law altogether. The murder of George Tiller, apparently by a known anti-abortion zealot, may begin to change the political equation.