Chilling whose speech?

Liberals sometimes have their heads shoved so far up their principles that they lose sight of the real world.

Case in point: the very liberal Ninth Circuit Court of Appeals’ recent ruling in Planned Parenthood versus the American Coalition of Life Activists. In the name of protecting free speech, the Ninth Circuit issued a decision that will assist terrorists, encourage threats and, ironically, endanger free speech.

The American Coalition of Life Activists is a group of anti-abortion activists known for creating “wanted”-style posters with the names, photos and home addresses of doctors who perform abortions. Similar posters have preceded the murders of abortion doctors in the past. They also helped create the “Nuremberg Files” Web site, which lists the names and home addresses of pro-choice doctors, clinic workers and activists.

In 1998, a Portland, Ore. court ordered the posters stopped and the Web site taken down. As the Oregon ACLU explained in a brief to the court, although anti-abortion speech is protected by the First Amendment, threats against abortion providers are not.

The Ninth Circuit has now overturned that ruling. Publishing a “wanted” poster is, according to the Ninth Circuit, not explicit enough to qualify as a threat. Furthermore, forbidding such implicit threats “could have a highly chilling effect on public debate on any cause where somebody, somewhere has committed a violent act in connection with that cause.”

The ruling prevented anti-abortion activists from targeting private citizens for violence, but nothing more. Does the Ninth Circuit believe that it is impossible to state anti-abortion views without mentioning the home addresses of pro-choice doctors?

The Ninth Circuit is right to worry about a “chilling effect” on free speech – but they’re concerned about the wrong side. Not being able to threaten private citizens in no way threatens the free speech of anti-abortion activists. Indeed, the vast majority of anti-abortion activists have always made their point without resorting to implied or explicit threats.

However, being denied legal protection against threats puts a severe “chilling effect” on the speech of abortion clinic workers and doctors. A medical clinic worker, seeing her name, address and children’s names on the “Nuremberg Files” Web site, would be inhuman not to worry that exercising her free speech will get her, or her kids, killed. Speech under the burden of death threats – even implied death threats – is not free.

The Ninth Circuit’s wrongheaded decision comes from their simplistic view of the First Amendment’s guarantee of free speech. In this view, the only purpose of the First Amendment is to protect citizens from government censorship. This is free speech for the powerful, who cannot imagine having their right to speech curtailed by forces other than big government. For the judges of the Ninth Circuit Court – most of whom are white, male, well-off and high-status members of their community – lack of government censorship is all the speech protection required.

Unfortunately, not everyone is so lucky. Women and people of color, for example, often have to worry not only about government censorship but also about the private, informal censorship of bigoted news organizations. And for pro-choice advocates, the issue isn’t just government censorship, but the speech-chilling effect of violent threats from anti-abortion extremists.

If the Ninth Circuit had a more inclusive view of free speech, their decision would have acknowledged that the First Amendment exists not only to prevent government censorship, but also to encourage free and open debate on important political issues. Without such free speech, democracy is meaningless; how can we vote on issues if we’re not free to discuss them?

But free and open debate cannot flourish under death threats. The Ninth Circuit Court would have better served the First Amendment by ruling that printing a doctor’s name and address on a “wanted” poster is not an exercise of free speech, but a threat to it.