Silencing speech only leads to violence, says creator of controversial Web site

Wednesday, March 10, 1999

Neal Horsley...
Neal Horsley

Editor’s note: Earlier reports of a judgment of $107 million against anti-abortion activists were later corrected to $109 million. That change has been made in this and other stories.

NASHVILLE, Tenn. — The creator of the controversial Nuremberg Files Web site, which some have called a hit list targeting doctors who perform abortions, last night warned that restricting anti-abortion speech only would lead to further violence.

Though his Web site played a prominent role in Planned Parenthood’s case against 12 anti-abortion activists, Neal Horsley was not named as a defendant. Planned Parenthood and several abortion providers recently won a $107 million jury verdict in their case, filed in a Portland, Ore., federal court in 1995, two years before Horsley started the Web site.

Horsley spoke out about his Web site and the stifling of anti-abortion speech at the First Amendment Center panel discussion “Expressions of Hate and Free Speech.”

When asked by moderator Ken Paulson, the center’s executive director, whether the content on his Web site constituted hate speech, Horsley responded: “I hate legalized abortion. I am not afraid to use the word (hate), because the dictionary says hate is any strong emotion of repugnance or repulsion, and I am absolutely opposed to legalized abortion and I hate it.

“The Web site is designed to demonstrate that we hate legalized abortion so much that we are doing everything legally that we can to change the law and make this, which is presently legal, illegal even to the extent of bringing the people who are presently making a living killing babies before the bar of justice,” he said.

When pressed later by fellow panelist Tennessee state Sen. Steve Cohen as to what the “bar of justice” was, Horsley responded that it was a “duly sanctioned courtroom authorized by the American people to carry out the law.”

In addition to Horsley’s Web site, the panel discussion last night focused on hate-crime legislation, college campus speech codes, the controversy surrounding the Southern Illinois University Law School graduate denied admission to the Illinois bar for his white-supremacist views and the impact of the Internet on society.

However, Horsley took center stage when he appeared halfway through the program because of a flight delay. The founder of the Creator’s Rights Party, which has a platform focusing on fighting abortion, stressed that he had free-speech rights to convey his anti-abortion messages. “As an American citizen, I have the right to do everything legally to change the law, even publicizing the names of people (abortion providers) who should be the object of law enforcement,” he said.

“No one has ever accused me of ever writing one word that said I either ever advocated, condoned, or encouraged anybody to physically assault, in any manner whatsoever, anybody in the United States of America,” Horsley said.

Horsley said that just as he had been turned into a pariah, he had every right under the Constitution to “turn others into pariahs.”

He warned that silencing his speech likely would lead to further violence. “Now here is the reality: Now that I’ve been silenced, the possibility of violence is greater, because those who are enraged by this process will see silencing me as further evidence that the only way they can express themselves is through violence,” Horsley said. “The paradox is that Planned Parenthood is endangering these doctors.”

Horsley’s torrential stream of comments about abortion prompted panelist Mary Frances Berry, chairwoman of the U.S. Commission on Civil Rights, to comment that “Mr. Horsley is a perfect example of the First Amendment run riot.”

Nadine Strossen...
Nadine Strossen

Panelist Nadine Strossen, president of the American Civil Liberties Union, said she did agree with Horsley on one point. “The plaintiffs (in the Oregon case) don’t feel any safer as a result of this verdict,” she said.

Strossen said there was enough evidence in Planned Parenthood v. American Coalition of Life Activists to take the case to a jury. She argued, as the Oregon ACLU did in its friend-of-the-court brief in the case, that the speech of the defendants and the speech on the Web site were “true threats” and should receive no First Amendment protection.

Paulson asked Strossen if the instructions the judge gave the jury in the Oregon case sufficiently protected offensive speech. Judge Robert Jones had instructed the jury: “You must decide only whether a reasonable person, in the context in which the statement was made, would foresee that the person to whom the statement was communicated would interpret it to be a serious expression of an intent to inflict bodily harm or assault. In other words, the test is not the subjective view of the defendants, but the objective view of a reasonable person.”

Strossen said that the ACLU had advocated and continues to press for a “stricter standard for differentiating between unprotected threats from protected hate speech.” She said the jury should have had to determine whether it thought the defendants had specific intent to cause harm to the plaintiffs.

Though criticizing the jury instructions, Strossen said there was enough evidence in the Planned Parenthood case to merit a finding that the speech constituted a true threat.

Tackling hate with legislation

Before the arrival of Horsley, the other panelists discussed several hate-speech issues.

“Hate speech has an interesting effect on people who believe strongly in First Amendment rights,” causing them at times to question their commitment to the First Amendment, Paulson said.

Strossen said that she and her organization opposed restrictions on hate speech. “We at the ACLU oppose restrictions on hate speech, not because we elevate free speech above equality concerns, but because we believe history shows that freedom of expression, including expression that is very controversial in its time and place and even sometimes considered to be hate speech, is what the civil rights movement, what the women’s rights movement and what the gay-rights movement depended on.”

Group libel laws, for instance, were used against Dr. Martin Luther King Jr. and civil rights demonstrators during the civil rights movement, she said.

However, Berry says that “words do hurt” and we must “be wary” about the “exponential increase” in both hate speech and hate crimes in the United States.

Berry told the audience that people needed to ask themselves the following question: “If we could prove that the more protection we had for hate speech, the more hate crimes occurred, how would we feel about greater protection for hate speech?”

Sen. Steve Cohe...
Sen. Steve Cohen and Mary Frances Berry

She acknowledges that while there may be a correlation between an increase in hate speech and an increase in hate crimes, there is no proof of a cause-and-effect relationship between the two.

Cohen said the solution was not to criminalize hateful speech, but to criminalize hateful conduct through hate-crimes legislation. “We must distinguish between what is speech and what ends up in action,” he said.

Cohen introduced a hate crimes bill last month in the Tennessee Legislature that would provide for longer prison sentences if a criminal offender “intentionally selects a victim” based on the victim’s “race, religion, color, disability, sexual orientation, national origin or ancestry.”

The U.S. Supreme Court upheld a similar penalty-enhancement statute in its 1993 decision Wisconsin v. Mitchell.

First Amendment consensus

The panel also discussed campus speech codes in which college officials outlaw certain forms of speech to create what they say is a more tolerant environment.

However, the panelists argued the codes violate First Amendment free-speech rights. At a college campus, one is supposed to “exercise freedom of thought,” Cohen said. “Restricting speech at a college campus is a mistake.”

Students need to learn about the world and learn about differences, he said, but they also need to realize that harsh words will be said and that these words will help prepare them for the real world.

Strossen noted what she termed the “bedrock principle” of the First Amendment — that government officials cannot punish expression simply because they disagree with or dislike the content of the expression.

The panelists also agreed that white supremacist Matthew Hale should be allowed to practice law. The character committee of the Illinois bar denied Hale a law license even though he obtained a law degree from Southern Illinois University and passed the bar exam.

“His ideas need to be exposed,” Cohen said, and he should be allowed to practice law.

Berry said it was “patently unfair” to deny Hale the chance to practice law because he expresses racist views. “The ACLU ought to defend him.”

Strossen agreed that the bar officials’ rationale was “unpersuasive” and said that the ACLU of Illinois had offered to represent Hale but he had chosen Alan Dershowitz to help fight his legal battle.

Paulson pointed out that the Illinois bar officials had acted inadvertently to convert Hale from just another no-name lawyer into somewhat of a celebrity who had appeared on the “Today” show.

Cohen concluded the discussion of Hale with a note of pragmatism: “I am a proud member of the bar… . However, we can’t say that the legal profession is that clean that Matthew Hale would dirty the waters that much.”