THE LIMITS OF FREE SPEECH | PAGE 1, 2, 3
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Clearly many people have taken these words seriously. As soon as the "Deadly Dozen" poster was released in 1995, the FBI contacted the doctors on the list and told them to seek protection. Two Florida doctors who were featured on the posters, John Britton and David Gunn, were subsequently murdered. (Gunn's son is now on the Nuremberg Files list.) As one lawyer for the plaintiffs, Maria Vullo, said in her closing argument, a pattern has been created: "Poster. Murder. Poster. Murder. Poster. Murder." After Dr. Barnett Slepian was killed in Buffalo last fall, his name was slashed through on the list, along with the names of other abortion providers who have been murdered. The names of people who have been wounded are shaded in gray. A photograph of Dr. Warren Hern, one of the plaintiffs, is currently on the Nuremburg Files site under the heading "Third Trimester Butcher," followed by the address and telephone number of his clinic in Boulder, Colo., and the line, "You might want to share your point of view with this 'doctor.'"

In November 1998, after Slepian's death, a federal task force of ATF and FBI agents, U.S. marshals and local police was formed to focus on anti-abortion activity in New York state. Dr. Robert Crist and Dr. James Newhall, two of the plaintiffs, testified that they felt directly and personally threatened with violence by the words of the defendants. Newhall said the FBI suggested he wear a protective vest and have 24-hour protection, and he wore the vest even while testifying.

The federal government has tried for years, and failed, to make a criminal case out of the evidence used in this trial. There were no clear precedents here. This was apparently the first case in any court in which language that was not expressly and directly threatening was being called an illegal threat based on a social context. That there were no direct threats was not in contention. The words in question contained only the shadow and suggestion of violence along their edges -- only a vague image of retribution and the hint of seething rage in the speakers. In and of itself, this is protected speech. Lawyers observing the case agreed that the onus was on the plaintiffs to make a convincing case, precisely because the words in question are so unpopular. The question of context was essential.

In a 1969 lawsuit, Watts vs. United States, a war protester who had been arrested for threatening the president won on the issue of social context. The defendant had said, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ." The court held that his words, spoken during an anti-war protest, were protected political speech. Context has been used in other cases as well to prove that hateful and dramatic words are in fact rhetoric, spoken in a context of drama or debate, and therefore not "true" threats.

In legal terms, words are not solid objects or unchanging qualities, but malleable and relative. Crying "fire" in a parking lot is not the same as crying "fire" in a crowded theater. In Planned Parenthood vs. American Coalition, for the first time, the context was being drawn to prove the opposite of what it has been used for in the past -- not that dramatic speech is merely rhetoric, but that in certain climates, it cannot be. In a world where doctors on wanted posters are murdered, wanted posters become something more than words.

Some scholars hold that political speech must in some way be politically "effective" to be so defined. Is there "political" power in listing home addresses and the ages of a person's children? "You don't really have a debate if one side bullies the other side," says Ashbel Green of the Oregonian, one of the only reporters to attend the entire trial. Political speech is, at least casually, defined as that which evokes response, debate and dialogue from one's opponents. Speech that effectively silences debate by creating fear doesn't fit this definition. But there is danger here, too -- just as I hesitate to allow anyone else to define "politics" for me, I hesitate to allow others to define "effective." These are evolving and complex qualities best left as broad as possible.

Michael Simon, the ACLU lawyer who filed the friend-of-the-court brief in this case, told me, "The critical issue in this case is to remove violence and the threat of violence from the abortion debate, but to do it in such a way as not to compromise free speech."

N E X T_ P A G E: Defending murder on the witness stand

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