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Suspect Bill

State Legislation Would Curtail Pro-Life Speech

BY MARIA ELENA KENNEDY

A bill that critics say would violate the free speech rights of pro-life activists was in July awaiting a hearing by the state senate appropriations committee before going to the senate floor. The bill, AB 2251, sponsored by Assemblywoman Noreen Evans (D-Santa Rosa), would prohibit the publication of the names, addresses, phone numbers, and images of abortionists or their patients. Additionally, the bill, according to its language, "would authorize a person whose information was publicly posted or displayed on the Internet in violation of any of the named prohibitions to seek injunctive or declaratory relief or, in certain cases, three times the actual damages but in no case less than $4,000."

Anthony Matthews, press secretary for Assemblywoman Evans, told this reporter that the assemblywoman was concerned about violence at abortion clinics. "The Nuremberg Files was a list that kept growing," he said, referring to a now defunct web site that published photos and contact information of various abortion doctors.

The Nuremberg Files web site was the brainchild of Georgia-based pro-life activist, Neil Horsley, who took flyers featuring photos of abortionists with identifying information and posted them on a web site he hosted. The flyers were originally created by a group of pro-life activists who formed the Oregon-based American Coalition of Life Activists. On October 26, 1995, Planned Parenthood filed suit against the American Coalition, saying that the flyers were "wanted" posters, inciting violence against abortionists. But one of the defendants, Cathy Ramey, has denied this. Ramey told this reporter in a July 17 telephone interview that "none of the posters said 'wanted dead or alive;' instead, they said, 'not wanted in this community.'"

Although Horsely posted the flyers on his web site, he was never named in the lawsuit, something Ramey attributes to the fact that the case was filed in Oregon and Horsley lived in Georgia

Although Planned Parenthood prevailed at the trial court, a three-member panel of the ninth circuit court of appeals on March 28, 2001 issued a reversal of the trial court's ruling, saying the web site's content constituted free speech. According to Ramey, Planned Parenthood later had the entire ninth circuit void its earlier decision.

Anthony Matthews of Assemblywoman Evans' office maintains that his boss is concerned about recurring violence against providers. "What made the [Nuremberg Files] web site infamous was the way the providers' names were crossed out when they were killed," said Matthews. "Eight of the twelve providers who were on the web site were killed." When asked if the bill's prohibition against publishing information about abortionists also applied to newspapers, Matthews replied, "no. The bill is very specific; it only applies to web sites; newspaper publishers are exempt. It all boils down to intent, did they intend to incite violence?"

When pressed, however, about whether or not newspapers that also publish stories online could be held liable under the bill for "inciting violence," Matthews admitted, "if a court finds that that is what a newspaper is doing [intending to incite violence], that is the way it is."

Matthews noted that there had been no opposition to the bill while it wound its way through the legislature. He added that the bill's drafters had worked closely with the California Newspaper Publishers Association.

But Tom Newton, general counsel for the California Newspaper Publishers Association, called Evans' bill a "suspect bill." When asked if he was concerned with the language of the bill, he replied, "well, yes. This bill allows someone to control the speech of someone else. We made sure they put in a sentence from the California Evidence Code section 1070, which is the California Shield Law." (The Shield Law forbids courts to hold in contempt journalists who will not disclose unpublished information or the source of their information.) The law proposed by the bill, said Newton, would be "unenforceable; there are constitutional problems because it says that someone cannot speak." When asked if he was confident the bill, if signed into law, would be challenged, he said, "yes. If someone is sued because of this law, the bill's constitutionality will be challenged."

Although the bill has been working its way though the legislature, in July state Republican lawmakers seemed unaware of its existence. Senator Dennis Hollingsworth (R-El Cajon) said he did not know of the bill. "No, this is pretty new to me," he said to this reporter. "Maybe it was gutted and amended," referring to the practice of taking out the language of an existing bill and substituting new language on an entirely different subject in order to avoid opposition. "I think it's blatantly unconstitutional. Most, if not all, Senate Republicans would oppose it." (This reporter spoke to Ryan Flanigan in Pleshia's office, who said he had not heard of the bill. "No, I'll have to look into this," he said, but he never called back. A Ray Haynes staffer also said they would get back to me, but never did.)

Pro-life activists were swift to react to the pending bill. Troy Newman of Operation Rescue West said, "pro-lifers are bold and persistent, and we're not going away. The only thing left for baby killers to do is to attempt to legislate us out of existence."

Terry Francke of Californians Aware, a public policy group that promotes First Amendment as well as other free speech issues, said that there were problems with the bill. "I think the provision that relies on proof of intent is a problem. If you are a smart persecutor of the people who work at these places [abortion clinics], you will make sure that you will certainly avoid statements or sayings or slogans on the web site that say, 'here are these people, go after them.'

"The other part of the bill that allows people to use the court to demand that their information be taken off is blatantly unconstitutional," continued Francke. "The heart of prior restraint [government banning of the publication of materials], which is the heart of the First Amendment, cannot stop someone who publishes public records. For example, because cars can be used for crime, we don't outlaw cars. We go after crime, not cars."

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