When may the law punish menacing
political speech?
|
"Menacing
Speech, Today and During the Civil Rights Movement"
by
Prof. Eugene Volokh
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 there's
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 nation's opinion turns against the wanton
slaughter of God's 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 site's specially marking the
names of those who had already been murdered or wounded. What's
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
didn't 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 violators' 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 couldn't sleep with boycott violators at night,
and allegedly that "if we catch any of you going in any of them
racist stores, we're gonna break your damn neck." But despite this,
the Supreme Court unanimously held that Evers' speech was constitutionally
protected.
The
Ninth Circuit was thus faced with a controlling precedent. Both
the Nuremberg Files and Evers' speech praised violence and
could be seen as threatening, especially given the context of violence
by others. The Web site included people's addresses, but in the
black community in Claiborne County, where many people knew each
other, listing boycott violators' names was probably tantamount
to including the addresses. And if anything, Evers' speech was somewhat
more explicitly threatening that the Nuremberg Files Web
site.
The
speakers' ideology was different -- but that's 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. What's 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 Court's decision, couldn't fully confront:
Was Claiborne right? Should Evers' 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. It's 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 jury's 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, it's 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 people's blood run hot.
Prof. Eugene Volokh, UCLA School of Law, originally published in slightly
different form in the Wall Street Journal, April 3, 2001
Return
to Freedom Line
Archive
|