The Nuremberg Files and the First Amendment Value of Threats

Abstract

In February 1999, a federal jury in Oregon awarded Planned Parenthood and several other plaintiffs a civil judgment of $107 million against individuals and groups that published two anti-abortion posters and provided information for an anti-abortion website known as The Nuremberg Files. The posters and website included the usual range of anti-abortion expression: immoderate statements opposing the procedure; pictures of bloody fetuses allegedly produced by abortions; references to the satanic impulses of abortion providers; and grandiose statements about the need to prepare for eventual Nuremberg-style trials of all those who provide abortion services or otherwise participate in what the defendants consider the equivalent of mass murder. By now much of this is standard fare in the acrimonious debate over abortion rights. The posters and the Nuremberg Files website went beyond the incendiary rhetoric that characterizes typical anti-abortion militancy, however, by listing the names of individuals who provide support for abortion services-including doctors, clinic workers, police officials, politicians, and judges. Additional personal information was included for some of the individuals, such as their home addresses and telephone numbers. Most notoriously, the operators of the website drew a line through the names of abortion providers who were murdered because of their professional activities. The Oregon jury concluded that the combination of ominous rhetoric and specific identification of individuals constituted a threat to the named individuals, in violation of the federal Freedom of Access to Clinic Entrances Act (FACE).