This week's $109 million judgment against radical opponents of abortion raises profound questions that undoubtedly will affect the future of the political fight over abortion and perhaps the freedom of expression in cyberspace.
In the short term, the decision against three anti-abortion organizations and 12 individuals is a big win for abortion-rights advocates. Their goal is to shut down their most radical opponents by hitting them in the pocketbook, much the way civil rights groups have targeted the Ku Klux Klan and other hate groups prone to violence.
But the ruling, which focuses on an Internet site that listed detailed personal information about abortion providers (who were likened to Nazis guilty of "crimes against humanity)," also raises First Amendment questions that are unlikely to be settled until the case reaches the US Supreme Court, as both sides expect.
"The standard which is finally adopted in this case will apply in many future cases," says David Fidanque, executive director of the American Civil Liberties Union of Oregon. It "must be carefully drawn both to safeguard against any chilling effect on free speech, while still preventing the First Amendment from being used as a shield by those who make true threats of violence."
The definition of "true threats of violence" is the nub of the case. Neither "The Nuremberg Files" Web site nor the other documents explicitly advocate physically harming the hundreds of doctors, clinic owners and workers, elected officials favoring abortion rights, judges, law-enforcement officials, and "miscellaneous spouses and other blood flunkies" listed.
The names of those who have been killed are stricken through with a line, however, and those who have been injured are grayed out. Also included are graphic photos of aborted fetuses. The result, says Gloria Feldt, president of Planned Parenthood Federation of America, is "a hit list for terrorists."
Defendants argue that this is well within the bounds of free speech, and courts in the past have held that even overt threats (including some against the president) are not necessarily subject to prosecution.
"We're very solicitous of speech, even the speech we hate," says Herman Schwartz, a First Amendment expert at American University in Washington.
Plaintiffs in the Portland, Ore., civil case included five doctors and a regional office of Planned Parenthood. They argued that the context of the information on the Web site made them fear for their lives. Over the years, seven doctors and other clinic workers have been killed in North America, and there have been some 300 attacks on clinics. On the advice of law-enforcement officials, some abortion providers wear bulletproof vests, outfit their offices with security systems, and teach their children how to respond if they hear gun shots.
Most anti-abortion activists denounce violent tactics, but a small number have come to view the issue as the moral equivalent of war - especially since the 1994 passage of the Freedom of Access to Clinic Entrances Act made it harder to conduct protests and confront abortion providers and women seeking abortions.
The Supreme Court has held that threats to individuals must be likely to cause "imminent lawless action" to be illegal. In this case, Judge Robert Jones told the jury the posters and Web site should be considered threats if a "reasonable person" would find them to be so.
This is "a subtle but important distinction," says Mr. Fidanque. The ACLU filed a friend-of-the-court brief arguing that the posters and Web site could be construed as a "true threat." Nevertheless, he says, "We still believe the jury should have been asked to determine whether the evidence showed that the defendants intended to threaten these abortion providers."
Plaintiffs are expected to ask for an injunction against "The Nuremberg Files" Web site, which remains in operation.
Defendants vow to appeal the case and to continue their activism. They also claim that they will not pay the damages, which range as high as $8 million each. They made themselves "judgment-proof," they said, by transferring their assets to others.