Annie Daley

Civil Liberties
11-23-15
Nuremberg File Case Opinion
The American Coalition of Life Activists runs a website called Nuremburg Files:
Visualize Abortionists on Trial that advocates pro-life opinions. The group also
displayed Wanted style posters featuring the images of abortion providers, along with
providers personal information, such as names, address, family details, phone numbers,
and records, in addition to images. All information was obtained from public records. The
posters were decorated with the image of dripping blood and proclaimed that the abortion
providers were GUILTY of crimes against humanity. Names of dead abortion
providers were crossed out; those who were injured were greyed out. Although ACLA
does not advocate violence, it provides several links on its website, including links to
other groups arguing that the murder of abortion providers is justifiable. Planned
Parenthood claims that this expression constitutes a threat; ACLA counters that it is
protected speech. Since 1977, 10 abortion providers have been killed, and there have
been 16 other attempted murders, 100 acid attacks, 200 arson incidents and bombings,
and 650 anthrax letters. ACLA has never been linked to violence. The essential question
the court must answer is whether speech that could potentially lead to violence is
protected by the first amendment, even if no intent of violence is acknowledged.
Speech that is directed to incite or facilitate illegal or dangerous action or could easily
incite or facilitate illegal or dangerous action in a reasonable person is within the
governments right to restrict, as is speech that is intended to or could easily produce
imminent lawless action in a normal person. Both the Dennis and Schenk tests hit on
important factors in the decision to restrict speech; the ruling in Schenk focused on the
imminence of lawless action incited by the speech, while Dennis concentrated on the intent
of those people inciting illegal action. In the Brandenburg ruling, the court ruled that
imminence, intent, and likelihood must all be present. I argue that all three ought to be
considered factors, but a restriction should never require all three. The problem with the
Dennis and Schenk tests are that they are too focused, requiring evidence only of intent or
imminence to restrict speech. Brandenburg is too specific, requiring intent and imminence
and likelihood before a restriction can be made. Every case is different, but two, or even one
of those factors alone should warrant restriction in cases in which the court pragmatically
decides that the benefit of restricting speech outweighs the cons.
The actions of the ACLA qualify for a restriction of speech to prevent incitement of
illegal action under the categories of intent, and imminence. Records may be public, but
ACLA is pulling focus to personal information about abortion providers and drawing
attention to groups that justify killing providers. Both actions could incite or facilitate illegal
action, in this case, assault or murder. Furthermore, it is clear to the court that the image of
dripping blood juxtaposed with personal information is intended to push someone on the
brink into action. In Schenk, the court asserted that the question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that the United States Congress
has a right to prevent. It is a question of proximity and degree. Murder and assault are
certainly substantive evils, and facilitating either creates a definite clear and present
danger. ACLA is putting anti-abortion protesters with potentially violent thoughts to, as the
court said in Dennis, strike when the time [is] right by creating an ease of access to
information that would aid one tempted to attack. The court in Brandenburg declared that
"the constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action." What would be the purpose of the
distribution of angry, bounty-style posters and personal information if not to incite action?
What else does ACLA expect pro-life advocates to do with this personal information? Send
holiday cards?
Threats that could potentially be taken seriously by reasonable person, however thinly
veiled and unlikely they might seem, ought to be restricted so as to ensure the safety and
mental wellbeing potential victims. Similar to their shortcomings in regard to the incitement
of illegal action, the Schenk, Dennis, and Brandenburg cases all fall short of correctly
identifying instances of true threats in which free speech may be restricted. Intent,
imminence, and likelihood should all be considered should not have to all be present for a
restriction on free speech. Likelihood is important, and intent doesnt equal result.
Imminence is difficult to predict. A person may say something and mean for one thing to
happen, but if something else dangerous is likely to happen as a result of their speech, they
ought to be stopped. Like the decision process for incitement of illegal action, intent,
imminence, and likelihood should all be considered equally. Every case is different, and
again, the court will have to weigh the advantages of restricting speechpotentially for
safetywith the disadvantages of restricting the freedom of speech of which the United
States of America is so proud.
The actions of ACLA pose a very likely threat to the mental wellbeing of abortion
providers in addition to a potential threat to their physical wellbeing. The ACLA was not
threatening to commit violence itself, but by providing personal information could easily
have ended up facilitating violence. Their list of abortion providers is not only a
psychological weapon, but an indicator of a desire for further violence, even if the group
itself were not to commit is. ACLA took no trouble to hide its distribute of personal
informationthey wanted abortion providers to be scared. The list on which names of dead
and injured abortion providers are ticked off sends a clear message: that anti-abortion groups
are picking off providers. Though the ACLA has not been linked directly to violence,
abortion providers have been killed and injured. There is every possibility that it could
happen again, and that possibility increases with ACLAs distribution of personal
information. Physically, this information would aid an attack, and psychologically, the
websites to which ACLA provides links that argue murder is justified could push someone
contemplating violence into attack. Additionally, constant fear for their safety and that of
their loved ones could seriously impact the mental wellbeing of abortion providers in a
negative way. It is clear to the court that the actions of the ACLA present a clear and present
danger in line with the courts ruling in Schenk. The intentas seen in Dennisto aid in
potential attacks on abortion providers is also clear to the court. The protection of the safety
and mental wellbeing of abortion providers falls into the category of a substantial enough
interest for the Government to limit speech as outlined in Dennis.
ACLAs speech is not protected under the first amendment. Restricting their actions is
not restricting speech; they are free to protest in a way which would not pose a true threat or
incite illegal action that might jeopardize someones safety. As with all Constitutional
concerns, the court must weigh the pros and cons of restricting speech. In this case, the court
decides that a combination of intent, likelihood, and imminence of a threat to personal or
public safety is cause for restricting, not speech itself, but this particular vehicle by which
ACLA has chosen to deliver its message.