"Menacing Speech, Today and During the Civil Rights Movement"
by Prof. Eugene Volokh, UCLA School of Law,
originally published in slightly different form
in the Wall Street Journal, April 3, 2001
The Nuremberg Files case, decided Wednesday by the U.S. Court of Appeals for the Ninth Circuit, has been reported as a victory for pro-life advocates. But the broader question the case raises -- when may the law punish menacing political speech? -- means thereís much more at stake here than this one particular movement
In the mid-1990s, the American Coalition of Life Activists posted on the Web dossiers on abortion providers, pro-choice politicians, and other abortion rights supporters. This site, called the Nuremberg Files, contained much strident anti-abortion advocacy, plus photographs and home and work addresses of people whom the ACLA believed to be "war criminals." This information, the ACLA said, would be used in future war crimes trials in "perfectly legal courts once the tide of this nationís opinion turns against the wanton slaughter of Godís children."
Naturally, the people listed on the site felt threatened by it, given the past attacks on abortion clinics and assassinations of abortion providers. And the menace was exacerbated by the siteís specially marking the names of those who had already been murdered or wounded. Whatís more, past anti-abortion violence had sometimes been preceded by similar posters prepared by others.
The abortion providers therefore sued, claiming the Web site and related print materials were constitutionally unprotected threats, and a jury awarded them over $100 million. This is the award the Ninth Circuit reversed (in an opinion by Judge Alex Kozinski, for whom I clerked eight years ago).
Many U.S. political movements -- for instance, the abolitionist, labor, civil rights, anti-war, animal rights, and environmentalist campaigns -- have had violent fringes. And in each movement, even those who didnít themselves stoop to violence have often condemned their enemies in harsh, militant terms. When such words are said against a backdrop of violence by others, they may easily carry an implied message of threat.
In fact, twenty years ago, the U.S. Supreme Court confronted a case, NAACP v. Claiborne Hardware, involving this very question. In Claiborne, civil rights leader Charles Evers helped organize a black boycott of white stores, aimed at securing equal treatment for black Claiborne County citizens; but while the boycott was mostly peaceful, it was not entirely so.
There was some violence: shots were fired through boycott violatorsí windows, violators were beaten up, and others had their property vandalized. There was public disclosure of boycott violators; "store-watchers" recorded which blacks shopped at white-owned stores, and published the names in a local newspaper and announced them in church.
And there was speech that, especially set against the backdrop of violence, was threatening: Evers said that boycott violators would be "disciplined," that the Sheriff couldnít sleep with boycott violators at night, and allegedly that "if we catch any of you going in any of them racist stores, weíre gonna break your damn neck." But despite this, the Supreme Court unanimously held that Eversí speech was constitutionally protected.
The Ninth Circuit was thus faced with a controlling precedent. Both the Nuremberg Files and Eversí speech praised violence and could be seen as threatening, especially given the context of violence by others. The Web site included peopleís addresses, but in the black community in Claiborne County, where many people knew each other, listing boycott violatorsí names was probably tantamount to including the addresses. And if anything, Eversí speech was somewhat more explicitly threatening that the Nuremberg Files Web site.
The speakersí ideology was different -- but thatís one distinction the First Amendment prohibits the government from drawing. Pro-civil-rights violence is just as punishable as pro-life violence; but pro-life speech must be just as protected as pro-civil-rights speech.
So the Ninth Circuit had to decide the case in favor of the speakers; and this is one of the great advantages of our precedent-based legal system. Whatís sauce for the goose is sauce for the gander, and this helps keep judges honest: They know the rules they create, whether speech-protective or speech-restrictive, will ultimately cover both those with whose message the judges sympathize and those whose message they loathe. Protection for civil rights protesters led to protection for pro-life protesters; likewise, the Ninth Circuit decision here will eventually be cited to protect still other political movements.
But the tougher questions are the ones the Ninth Circuit, which was bound by the Supreme Courtís decision, couldnít fully confront: Was Claiborne right? Should Eversí talk of "necks being broken" have been protected, or should the law protect victims of threatening speech more, and speakers less?
This is a genuinely difficult issue, but I think Claiborne got it basically right, because the alternative is so restrictive. Whenever words are said against a backdrop of violence, listeners can plausibly read an element of threat into the statements. Harshly condemning strikebreakers or polluters a few months after the shooting of a strikebreaker or an eco-terrorist attack may be reasonably seen by many as an implied threat.
But such statements are an inevitable part of political debate, especially when the speakers see the issue as literally a matter of life and death. Itís important for us to hear this speech, partly because some aspects of it may be right, and partly because the very fact that people feel so strongly about an issue is itself important matter to know. If a juryís finding that the speech is implicitly threatening can lead to a $100 million verdict, many people (except perhaps the most irresponsible) would be unwilling to express their honest views on such matters. We need to punish the violence, but protect the speech.
There are, of course, necessary limits on all speech, and courts recognize that some threats are constitutionally unprotected. As the Ninth Circuit pointed out, explicit threats that the speaker or his associates will perform violent acts are indeed punishable.
But as with all First Amendment exceptions, itís important to keep this one narrowly limited. When statements made in public discourse contain no explicit threat of violence -- or merely warn about the risk of violence by unrelated third parties -- the Ninth Circuit held they must be protected. A harsh rule, but necessary, not just for the protection of pro-life speech but of speech on all topics that make peopleís blood run hot.
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The Nuremberg Files case, which is officially titled Planned Parenthood v. American Coalition of Life Activists, is available online athttp://laws.findlaw.com/9th/9935320.html.
NAACP v. Claiborne Hardware, 458 U.S. 886 (1982), is available online athttp://laws.findlaw.com/us/458/886.html.