NPR, Planned Parenthood, and Legal Ignorance

Legal issues are in the news a lot these days, which is frustrating for a lot of lawyers because most people know squat about the law. It’s additionally frustrating because a lot of the people talking about the law on the news should be better informed than their statements reveal them to be.

To wit, yesterday, on the Diane Rehm show, guest host Indira Lakshmanan led a panel discussion about the recent indictment of two anti-abortion activists for tampering with government documents (they allegedly forged drivers’ licences which they presented to PP representatives as identification) and one of them with attempting to purchase human organs.

A listener rang in and said the following:

Donna: I just want to say that I believe that the altered tapes led pretty directly to the terrorist attack on the Planned Parenthood in Colorado. And it seems to me that inciting a criminal attack should have some legal repercussion. And I’ll take your response off line.

I hope that your reaction to reading that was similar to mine upon hearing it. Something like “Oh hell no.” But perhaps you and Donna are confused about the concepts of “incitement” and “free speech,” and you could be excused for thinking “Hmmm. That’s a good point.”

If, however, you were a journalist operating in the United States and therefore protected by the First Amendment, probably the strongest legal protection for a free press anywhere in the world, you would have no excuse for not politely but firmly informing Donna that she was wronger’n white after Labor Day.

So you can imagine my surprise when Julie Rovner, health care reporter for Kaiser Health News, said this:

Rovner: Abortion clinic violence is unfortunately also not a new thing. And there are questions about, you know, whether or not they are incited and by what. I’m not sure that has been, you know, probed legally, whether you could actually draw a line from here to there. But there certainly is an element of people who are willing to end abortion by any means necessary, including murdering abortion providers. 

This is astonishingly wrong. What sort of conduct can be considered “incitement” has been “probed legally,” and this type of conduct ain’t it. Ken White wrote a very clear analysis of incitement over on Popehat recently, dealing with a much closer case. Ken knows vastly more about this stuff than I do, and he’s generally funnier, so you should definitely go read it, but the key part for our purposes is this rule from Brandenburg v. Ohio:

[A]dvocacy of the use of force or of law violation [may not be prohibited] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Whatever you think of the undercover videos, they are not “advocacy of the use of force.” They may be misleadingly edited propaganda designed to mislead and confuse in order to generate support for restricting women’s rights to reproductive freedom, but they don’t contain any advocacy of violence towards PP. Even if they were, it’s hard to see how they would be “directed to inciting or producing imminent lawless action.” Although Donna thinks that the videos “led pretty directly” to the attack in Colorado, nothing in the videos called for violence and the attack occurred months later.

In short, it’s clear that the makers of the undercover videos could not be successfully prosecuted for inciting the attack in Colorado, and it’s disturbing that a journalist would suggest that it was an unsettled question of law. Perhaps Ms. Rovner meant something slightly different; not that it was an open question of law, but just that she didn’t know if the question was settled or not. Unfortunately, that’s not much better.

Imagine if a caller had said something like “Can makers of vaccines be prosecuted for giving kids autism?” And Julie Rovner, instead of mocking him soundly, responded, “I’m not sure if that has been, you know, probed legally.” You would implode into a white-hot ball of confused rage, because not only is it completely settled that vaccines don’t cause autism, but you would expect someone on the radio talking about the issue to know that. It’s not forgivable ignorance.

The same principle applies here. That these videos do not meet the legal threshold of incitement to violence should be as obvious as the fact that vaccines don’t cause autism. But if some poor souls out there labour under the misapprehension that they do, then journalists should be well-informed enough to correct them. NPR and Julie Rovner were not, and that’s a damned shame.