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Wednesday, January 14, 2009

Personal information as true threat

Richard posts about a map that same-sex-marriage advocates have created showing names, addresses, and locations of people who donated to the Prop 8 campaign, and points to some discussion about whether this somehow constitutes a threat. The purpose of the map presumably is to enable some type of public shaming, or protest, or boycott against those who supported Prop 8.

The obvious comparison is the Nuremberg Files, a web site run by an anti-abortion group that called for Nuremberg-style tribunals for choice advocates. One feature of the site provided names and home addresses of doctors who perform abortions. The en banc Ninth Circuit upheld a massive judgment under the Free Access to Clinic Entrances Act against the American Coalition of Life Advocates, holding that the site constituted an unprotected true threat.

Now first off, Planned Parenthood was among the worst free-speech decisions of the decade. And although SCOTUS denied cert there, I am not sure it would let the Ninth Circuit expand the threats in a web-based, attempted-public-shaming/boycott/protest case a second time, if it used that case against this map. What is interesting, of course, is that the broad political valences are reversed. Pro-choice groups celebrated that decision, so the irony of it being used against a fellow-liberal cause is plain. So this could be another demonstration to the Left of the folly of abandoning broad conceptions of the First Amendment when the speaker is on the other side politically--it frequently comes back to bite you.

The cases are different, however. The Nuremberg Files site did more than give addresses. It also displayed "Wanted" posters with the names of abortion providers and others. And in listing the names on the site, it crossed out those providers and advocates who had been killed and grayed out those who had been wounded. The latter element, considered in the context of anti-abortion violence (that is, so far, absent in the same-sex marriage debate) was the key and may serve to distinguish that web site from this map, which thus far seems to only provide information.

Posted by Howard Wasserman on January 14, 2009 at 10:12 AM in Current Affairs, First Amendment, Law and Politics | Permalink

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Comments

Actually, in light of this article:

http://www.chicagotribune.com/news/nationworld/sns-ap-gay-marriage-fundraising,0,1044532.story

... my point that the Prop 8 maps do not facilitate retributory violence may have been premature.

Posted by: Dave | Jan 15, 2009 3:03:53 PM

I like the analogy and the distinction. To expand on the former, it seems to me that the salient difference between the Nuremburg Files site and the Prop 8 site is that they both theoretically enable intimidation by making it easier to find the targets of those threats. But the Nuremburg Files site went a step farther by constituting a threat on its own terms. It would have been impossible to read the site and not construe it as suggesting that the listed doctors were targeted for violence. The same cannot be said for the Prop 8 site, which may merely serve to facilitate peaceful boycotts or protests (perhaps problematic for other reasons, but nothing like the imminent threat of bodily harm that the Nuremburg Files site expressed).

It also bears noting that the context from which each site emerged was radically different. The NF site happened at an unprecedented upsurge in violence at abortion clinics, when many clinics were subjected to threats of--and much actual--violence. However much one may think that supporters of gay marriage have been discourteous or unreasonable, nothing they've done is in that same league. This fact too seems to set the two sites, and the message each communicates, dramatically apart. If gay marriage activists were to start executing (or advocating the execution of) donors to the Prop 8 campaign, then it would be more of an apples-to-apples comparison.

Posted by: Dave | Jan 15, 2009 12:49:55 AM

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