Attorney Kathryn Kolbert, known for her defense of abortion rights, appeared on 60 Minutes defending the First Amendment rights of a notorious anti-abortion group. So we asked her to explain her thinking in a telephone conversation.
Several years back, an anti-abortion group, the American Coalition of Life Advocates, created posters identifying what it called the dirty dozen, 12 physicians who provide abortion services. Each poster had the picture of a doctor with the words, Wanted, $500 reward for crimes against humanity.
The anti-abortion group distributed the posters outside clinics and put them up on telephone poles and trees in the home neighborhoods of these physicians.
In addition, the group held a press conference during which it released the posters and urged the public to look at its Web site, The Nuremberg Files, which had detailed personal information about these doctors and others who perform abortions. Surrounded by pictures of dripping blood, the Web site crossed out the names of abortion doctors who were murdered or for other reasons stopped performing the procedure.
The targeted doctors received calls from the FBI notifying them of the groups actions. Given the spate of bombings and the recent murders of doctors, they took additional steps to protect themselves.
But they went even further. They sued the anti-abortion group, claiming that these publications were nothing less than a hit list, an illegal threat, and they won a jury verdict of $109 million dollars.
My 25 years of experience representing abortion providers have convinced me that these dedicated doctors are often doing the Lords work. Within an extraordinarily hostile environment, they continue to provide essential medical services and demonstrate a deep commitment to the women they serve.
Nevertheless, I am concerned that this enormous judgment against the anti-abortion group for hostile speech is a dangerous precedent.
Let me give you an example about why this is important. Imagine that an environmental group printed a list of 12 corporations whom it considered to be the dirty dozen, held a press conference, decried the activities of the corporations as a crime against humanity and published a Web site with detailed information about the corporate officers and even their families. The environmentalists were fully aware of a pattern of violence kidnapping of corporate officers, for example, by people outside of this group but they did little if anything to decry the violence. The corporate officers would clearly feel threatened by the groups actions. Do we want the speech of the environmental group to be considered a threat, making them susceptible to million-dollar judgments? I dont think so.
I urge the U.S. Court of Appeals for the Ninth Circuit to create a stringent standard to distinguish speech that is truly a threat from speech that is hostile and offensive yet protected speech. The intent of the speakers and the potential of imminent harm are two factors courts might use to distinguish protected from unprotected words. The fact that the targets were fearful and considered the words a threat should not be sufficient. All of us who are fighting against injustice may say things that others find threatening even though we never intended such a result and there was no real likelihood of imminent harm. Courts must use standards on the bad guys that will not come back to haunt us or make illegal our own actions when the tables are turned.
Kathryn Kolbert is a senior research administrator at the Annenberg Public Policy Center and the executive producer of the radio show Justice Talking. A debate on the Nuremberg Files litigation can be heard on the Justice Talking Web site, www.justicetalking.org.
Originally published on March 23, 2000