In San Francisco, two militant advocates for AIDS patients have been charged with stalking and threatening public-health officials, researchers, and reporters who have made or disseminated what they deem to be objectionable statements about AIDS prevention and the behavior of infected gay men. Naturally, with no apparent sense of irony, they assert a First Amendment defense.
The suspects, David Pasquarelli and Michael Petrelis, have been heldfor over a month, each on $500,000 bail. They admit that they made or encouraged"foul" late-night phone calls to the homes of officials who work at the federalCenters for Disease Control in Atlanta and others they consider the "enemies ofgay people." (The phone calls began in November, after San Francisco initiated asyphilis-awareness campaign inspired by an increase in the disease among gay andbisexual men.) But Pasquarelli and Petrelis deny making the threats of violencethat their targets report receiving.
"They told me they were going to hunt me down, that I was in their sights,"Carl T. Hall, a science writer for the San Francisco Chronicle, alleges. Dr.Jeffrey Klausner, otherwise known on the Net as Dr. K-K-K-Klausner because of hisreferences to quarantining sexually active infected gay men, claims that he andhis family received threatening, obscene calls at home.
Of course, Petrelis and Pasquarelli have an obvious right to offend, unsettle,or denounce their ideological opponents--and a concomitant obligation to toleratebeing offended, unsettled, or denounced. But they have no right to target peoplepurposefully with plausible threats of violence, which hardly advance orencourage public debate. Their prosecution does not present a difficult legalissue so much as a controlling question of fact: Did they or did they not intentionally threaten people?
The Ninth Circuit Court of Appeals, which could eventually hear this case ifit winds up in federal court, has been grappling with a very similar one for thepast two years. In Planned Parenthood v. American Coalition of Life Activists,the Ninth Circuit overturned a verdict by a federal jury that hit the ACLA, agroup of anti-abortion extremists, with a $100-million damage award forthreatening abortion providers. In addition to circulating wanted posters thatfeatured doctors who performed abortions, the appellants had contributed information about doctors and clinic workers to the notorious Nuremberg Filessite on the Internet. That site maintained a hit list of more than 200 abortionproviders, together with photographs and dossiers listing personal identifyinginformation, such as full names, addresses, license plate numbers, and detailsabout the subjects' spouses and children. After three doctors on the list wereslain, a line was put through their names; the names of the wounded were listedin gray.
In overturning this verdict, Judge Alex Kozinski likened the alleged threatsagainst abortion providers to the protected rhetoric of civil-rights activiststhat was at issue in a landmark 1982 Supreme Court case, NAACP v. ClaiborneHardware. It involved a boycott against white-owned businesses in Mississippi;one organizer, Charles Evers, was said to have threatened retaliation againstpeople who broke the boycott: "If we catch any of you going in any of them raciststores, we're gonna break your damn neck," he exclaimed. But the Court held thatthese remarks were protected speech--because Evers had not "directly threatenedacts of violence." (He was making a speech to a crowd, not stalking or otherwisetargeting particular individuals.) Evers was guilty of rhetorical excesses, notthe issuance of intentional, plausible threats. The Court also stressed that hecould not be held to have intentionally incited violence.
Claiborne Hardware was rightly decided, but it is the wrong precedent for theNuremberg Files case. Abortion activists were not sued for inciting violence butfor threatening it--against targeted individuals. And context is essential indetermining whether or not a rhetorical flourish is an actual threat.Anti-abortion activists issued wanted posters and hit lists during a wave ofhomicidal violence against clinics and clinic workers. The threats were quiteplausible (people had been killed), the FBI was offering protection to targeteddoctors, and one defendant, Andrew Burnett, even admitted that the threats werereal: "If I was an abortionist, I would be afraid," he testified.
The ninth circuit's reversal of this verdict inspired apredictable outburst of protests among pro-choicers (and debates amongfree-speech advocates). The full court reheard the case last month, and thetiming was not propitious for anti-abortion extremists. Fear of terrorism is muchstronger these days than respect for speech. The verdict against the ACLA oughtto be restored--not in reaction to September 11, and not to stop violence againstabortion providers, but to punish and perhaps deter deliberate efforts toterrorize people.
If the Ninth Circuit does hold the ACLA liable for issuing actualthreats, it will not be starting down the slippery slope of censorship.Reinstating the verdict against the ACLA won't deter offensive or unpopularpolitical speech, endanger war movies and video games that glorify violence, orrestrict other controversial media. The usual debates about the causal connection between disputed speech and harmful behavior are irrelevant here.Neither the Nuremberg Files case nor the prosecution of AIDS activists in SanFrancisco is based on claims that speech causes violence. The defendants in bothcases are charged not with causing physical harm to people but with intentionallyinstilling fear in them. For freedom's sake, we all have to tolerate beingvilified, embarrassed, or harassed, but freedom will survive if we acknowledge a right not to be terrorized.
