Seven Days; Anti Abortion Website; Portland Schools

Wце Hi, I'm Stephanie Fowler and this is Seven Days. Our topics this week, the lawsuit against an anti-abortion website called the Nuremberg

Files and the direction of Portland Public Schools under new superintendent Ben Canada. Let's meet this week's panel. Dana Haynes covers education for the Salem statesman journal, Tony Green covers the courts for the Oregonian. Nan Alexander is an associate editor at the Oregonian and Mark Sussman is the editor of Willamette Week in Portland. Today is the 26th anniversary of the Supreme Court's landmark Roe v. Wade decision which effectively legalized abortion in the United States. There's still a vocal minority of Americans who are opposed to abortion and who actively engage in anti-abortion protests. There's an even smaller minority of protesters who take violent action against doctors and others who provide abortions. The connection between these two kinds of protest is the subject of a civil trial in federal court here in Portland. The case revolves around a website called the Nuremberg Files. The lawsuit filed by Planned Parenthood at a group of doctors claims the website encourages violence against doctors to perform abortions and therefore constitutes an illegal threat to their lives.

The site drew national attention last October when the name of Dr. Barnett Slepian was crossed out after he was killed by a gunman in Buffalo, New York. Indeed when anyone on the alleged hit list is killed, their name is crossed out. If wounded, their name is shaded in gray. Anti-abortion protesters say there's nothing threatening about the list. They're merely exercising their right to free expression. Tony, can you distill for us the basic legal issue in the case? Well the basic legal issue is free speech. Are these not only the Nuremberg Files website but several wanted-style posters that lists the name's addresses and other personal information of doctors, whether those amount to political hyperbole or whether they amount to a threat which would not be protected under the First Amendment? And what makes these things, what would make these things rise to a level of a threat under this Supreme Court's previous rulings? Well basically there needs to be a determination as to whether the person who's the subject

of them would feel threatened legitimately, feel that there was sort of imminent danger for them. But also you need to look at the context and determine whether it was set as whether these remarks were uttered in some sort of political context. And that's really kind of the key issue in this trial is, is the context, the political debate over abortion or is the context a rash of violence against abortion providers over the last couple of years? And that's what the jury is going to have to sort out. The defendants over the last week have made the case that, or tried to make the case that they are controversial anti-abortion protesters who have essentially refused to condemn violence against abortion providers, but that what they're engaging in is free speech. The plaintiffs are trying to make the case that when you look at all the other violence

that has occurred, the timing and the way in which these documents have been presented, it really amounts to a threat which would be illegal. And we've had about two weeks to trial, and I think it's next week we should get into closing arguments. To back up a second, and Tony Cricht me if I'm wrong, aren't the plaintiffs arguing that in essence this violates this federal law that was passed to provide access to abortion clinics that the Nuremberg files and these war crimes posters in essence pose the sort of threat that would keep someone from going to an abortion clinic. And the defense is using First Amendment as superseding that, even if that's in fact the case. Yeah, the act is, it's called face or the freedom of access to clinic entrances act was passed in 1994, and it makes it a felony to, among other things, threaten anyone to try and intimidate them, to prevent them from exercising their rights, either to provide

abortions or to have one. So that's one of the ways that the lawsuit has been filed, and the defendants are not expressly challenging the constitutionality of the law which has been tested, but that the facts as applied don't, that they are free speech essentially under the circumstances. Because all of the previous cases, and the cases that created that act were based on actions performed by anti-abortion protesters as opposed to words. Is that not right? And this is the first time that protestors, and this is the first time where people have claimed that the words themselves and not actions are creating the threat. And the phrasing in that law is force or threat of force. And the plaintiffs are claiming that these posters present a threat of force.

Tell us about the posters. The posters, they have a couple of things, they have a deadly dozen list. I think that came out in 1995, they presented a list of 13 doctors. Two of them are local Dr. Elizabeth Newhall and Dr. James Newhall, and then two other doctors and other parts of the country who are also plaintiffs in the suit. They are on this deadly dozen list. And then they also have what they call wanted posters. And on the wanted posters, they have pictures of the doctors where they can be found. There are addresses, home address, there are office address, phone numbers. And the posters, the wanted posters generally offer a reward of $5,000 for any information that would lead to the revocation of this doctor's license. And they're saying that these kinds of things help create an atmosphere and a suggestion

or a solicitation, actually, it's charged a solicitation to murder. Before I was going to do this show, I always assumed that you can't shout fire in a crowded theater. You can't threaten anybody. Those things are clearly illegal. And find out it's a lot more complicated than simply that. I was talking to some law professors around the state who are saying that the famous case is the Brandon Burg test, which says that a speaker has to utter some speech that directly incites imminent lawless acts. Imminent is really important. You can't say, OK, sometime in the future, you ought to go burn down a church. What you have to say is, OK, man, let's take these torches and go burn down a church. That makes it illegal. Secondly, you have to have a likelihood that the listener will act on it. You can't stand up in the middle of a crowded theater and say, OK, let's go down to burn down a church because everybody will just tell you to shut up. You stand in front of a clan meeting and say that it could be a crime. And I think that one of the things that come up through this case, it seems to me anyway that's been brought up, is that there is a likelihood that some listener, if you

really mind using that term right now, or somebody looking at this web page, web page might act on the information that's in there. In the last 20 years, there's been 39 abortion-clinic bombings, 154 arson cases, 99 acid attacks, 15 attempted murders, and seven successful murders. So there's clearly somebody out there who's predisposed to violence. This person has a likelihood of tapping into this web page, and the web page has got this list of stricken out or grade out names of wounded and dead providers, and their spouses, and their staff, and judges who've ruled one way or another, and politicians. So I don't think anybody is, and Tony, you've been watching this more carefully than anybody. Anybody's under the impression that this trial is going to result in the end of the deep divisions in this country over the issue of abortion. Rather, it's receiving this sort of national and even international attention because of the belief that it's going to create this extraordinarily symbolic decision as it relates to First Amendment issues.

I'm not even sure that that's the case, but nevertheless, that's, I think, why it's receiving all the attention. I found, with interest, the testimony yesterday of the fellow who actually put up the website, his name is Horsley, in which he sat in court, and basically said, I put this website up simply to inform, not to provoke, not to threaten, independent of whether this crosses the line of First Amendment. You cannot go to that website and see the dripping blood and see the pictures of fetuses and see the names of doctors, and not just doctors, but politicians and judges, and see their name crossed out when they've been killed or grade out when they've been wounded, as you said, and believe that this is simply just to inform. And frankly, I think a huge grain of salt has to be taken with the testimony, Mr. Horsley yesterday, that said whether it rises to broach or to an imminent lawless action. Why do you think that wouldn't be significant for the First Amendment, and to clarify that very blurry line about where free speech and controversial political rhetoric constitute

crosses the line and becomes illegal threat? I don't understand the question. Why do I think that? You seem to say you didn't think this was going to be an important First Amendment decision prior to what you said about that. Well, I'll give you a follow-up. I mean, you seem to discount that as well. That if they rule that if they end up finding for the plaintiffs that this will somehow stifle freedom of speech, that's sort of what First Amendment people are saying, why it won't have that impact. Well 10 years ago, there was a trial, a little bit more than 10 years ago, there was a trial in Oregon in which a fellow named Tom Metzger was tried, you know, it's not a perfect analogy, but it's a pretty good one. He was tried for wrongful death because it followed the slaughter of an Ethiopian by a baseball bat by four racist skinheads, and they ended up getting convicted in criminal trial. And then a fellow from Morris D's who runs a Southern Poverty Law Center came to Portland filed suit against Tom Metzger, who was a white Aryan resistance, the leader of white Aryan

resistance, and said, you incited these gentlemen to swing a baseball bat and kill Mollogita Seraa. Well Tom Metzger never said, go kill Mollogita Seraa. He did provide the context in which these wackos went out and slaughtered this Ethiopian. He used the First Amendment defense. It totally failed. He was convicted. I don't feel like my First Amendment rights have been abridged as a consequence. So, again, maybe it's not a perfect analogy, but I think not all trying to predict the outcome of the trial, I don't know that necessarily the outcome of this trial will have the impact. I understand why it's gathering the attention that it has. One of the things that's a little unusual, in fact I think a lot unusual about this case is that typically, and in the Metzger case you had a, in this case it was viewed, the jury decided that an agent of Metzger on a particular night at a, speaking to a group of skinheads, urged them or incited them to go out and commit violence. In the other threats and incitement cases which are a little bit different in the courts,

there's always been, the language has always been expressly threatening. It's been, there's a 1969 Supreme Court decision called Watts in which a protestor said something to the effect of if they make me carry a rifle. The first man I want to get my sights on is LBJ. Now that's, you know, seems like a somewhat threatening remark, but they took the context in the, and they said, well, is it a protest, and he probably wasn't going to do it, and LBJ probably didn't have much to worry about, and so it was just political hyperbole. What's a little unusual about this case is that the, the, the, the, the, the, the, the Nuremberg files, the, the posters, they don't say anywhere, go out and kill these people. And instead there's sort of a reverse analysis going on here where they're saying that, well, given the context, given the fact that, that murders have followed previous posters, that, that, in fact, and given the fact that the number of the defendants have endorsed violence, that this sort of transforms these into threats, implied threats, wink, wink, nod, nod threats, and that's something that the courts really haven't dealt with.

And so I think that's what at least makes it a very interesting case and why, if there is a plaintiffs verdict, I think the courts have, have a lot of thinking to do about exactly where they want to draw the line on implied threats, as opposed to express threats. And I think there's also no question that, that the people in, in this, the defendants clearly want to stop abortion providers from, from providing abortions. There are only, you, in 84% of the counties in this country, you cannot find an abortion provider. And the defendants in some of their conversations back and forth and, and their letters, you know, and, and their efforts have, have said that if they keep up their, their, uh, pressure on, on abortion providers, they will make it more difficult for people to get abortions. I mean, what's the, what's the good for, uh, in having the right to make reproductive choices, if there's no place to go make them, if you, if you have to get on a plane to go

do that, I mean, it really does limit women's access, um, you know, again, I'm getting back to Tony's point, this is sort of like, you know, it smells like a duck, walks like a duck, is the court going to find that, as a consequence, it is a duck, I mean, and that's really, I mean, boiling it down to perhaps it's too simplistic form, to a certain extent, that's what you have here, you cannot look at that website. And if I was one of the people listed, not be threatened, does that mean it, you know, it substitutes the imminent lawless action that the Supreme Court says allows you to broach that first amendment, I don't know. But it's not just an informative website. It is, I mean, to an average, to this average person, uh, I would not want my name on there. And does it have to be, well, even one of the defendants said, well, if, if my name were on it, I'd be frightened. Right. And, um, but, I think, um, we'll go, well, if, assuming the plaintiffs, uh, harp on that mission, which I see, you know, I think that they will, um, that, that's the sort

of thing that jury will have to look at when, when trying to determine the credibility, were the plaintiffs really, uh, scared or, or is this a case of, of, as the, the defense is trying to make it out as sort of a political vendetta, you know, it's planned by Planned Parenthood, it's the sort of, they chose Oregon because it's a pro-choice state, they selected it because it's within the Ninth Circuit Court of Appeals. It's one of the sort of ways that the defense is trying to undermine this case, um, or will the, uh, uh, jury look at the defendants and see some of these TV clips where they say, well, if you believe that the, uh, the, the, the unborn have the same rights as the born, that, that there's nothing that I don't see how you can't think about, uh, trying to save their lives. And if that use requires justifiable force, that, that requires justifiable force. They've got to balance this credibility, the credibility of those two sides. And most of the defendants have also, I can't say that all of them, but most of them have to, have signed the defensive action statement, I believe it is, and in that it says

that whatever is, can be used, whatever force is used to protect the born should be available for the unborn. So, unless you're too evil defense, so even though they will describe themselves as nonviolent, they make a distinction between being nonviolent on the one hand, but using protective force on the other hand, which could include what they consider justifiable homicide. So I would be very afraid of these people. And, and the, and the judge seemed to create the standard for the jury that, um, or the question, what a reasonable person, um, be apprehensive of bodily harm given the context. A little different than that, and there's been actually quite a bit of a, a, a tussle over the exact, standard, because I think that will make all the difference, particularly if it goes, certainly. The, the so far he's indicated that the standard he will apply is, would a reasonable person making the remarks, in this case, uh, realize that the person who is the recipient of them

would feel threatened. So it, it's, uh, it, it does take into consideration who's thinking them, the ACLU has sought a more extensive test in which not only do you need to establish that the plaintiffs would reasonably be afraid, but that the, um, that the speaker intended, not, not that they should have known, which is right now the way that the judge seems to be leaning, but that they intended it, and that's a harder thing to prove, that there, that was their intention, not just that they were sort of, oh, we thought it was, oh, I'm sorry, we won't do it again. It's more, you have to show some sort of intention. Oh, how would a person not feel threatened if the FBI called them up and said, you're on this, you're on this deadly dozen list, you know, they've got a poster out on you, and we'll offer you, you can have 24 hour protection if you want, and you need a bullet proof vest. How would someone not? Exactly. But at the same time, the judge has said that the jury cannot consider what law enforcement has recommended as protective action for, for the, for the plaintiffs.

They can listen to Monica Miller, though, who is a founder of the American Coalition for Life Activists, who said she was frustrated because most of the director's favored violence is a means to protest, um, Michael Dodds, and I'm taking these out of your stories, I use them, I should be saying this, your coverage is sensational, uh, he signed petition supporting defendants. It's not the word you intend to do. Yeah. Very good. Measured objective. Yes. That's what you meant to say, right Dana? Well, when, when will we hear a decision, and that will obviously not be the ultimate decision? This is probably going to go to the Supreme Court, but, um, uh, right now it looked like at the end of today's, uh, that there will be another witness on, um, Monday, and he's a fairly critical witness, although he's not a defendant, his name is Paul DiPari, and he's fairly well known locally, um, uh, involved in a, a magazine called, uh, Life Advocate, which often expresses a lot of the, the controversial views that are kind of in the middle of this trial. Uh, the judge would like to get that finish before the end of the day, Monday, and have the, the plaintiffs make their opening arguments, then, on Tuesday, have open, closing arguments,

then closing arguments, um, by the defense on Tuesday, and then some sort of rebuttal. So presumably by the end of Tuesday, the judge would like the jury to get a hold of it. Uh, I think it's going to probably go through the week, into the following week, again. Okay. So within the next week or two, we'll have at least the initial decision from, from this thing. Right. Okay. Thank you. And so, as you can see, Portland School Superintendent Ben Canada, followed through on at least one of the proposals he made last week in his state of the school's address. He streamlined the top administrative positions in the district to give more attention to instructional needs and less attention to school operations. Canada is considering more proposals to cut the district's budget, but Portland School officials will also be lobbying the legislature to make up a $25 million deficit the district expects to face next year. Mark, why is the Portland School District so desperate for extra money? I would say this session, but it was last session, and well, it's been ever since 1990. All right.

Stop me when I run on. Since 1990. I will. I'll be happy to. Since 1990, the landscape for school funding in this state has changed dramatically. Part of 1990, most of the money for schools came from local areas. Portland funded its schools quite, healthily. Well, in 1990, state started taking responsibility. It started saying we're going to fund schools equally. Well, the schools that are wealthy tend to suffer. Portland has been suffering from what it lived on in 1990 ever since. Right. So as the schools became funded by the income tax through the state instead of the local property tax, the state has tended to bring up the poorer districts to the level of Portland. So Portland hasn't moved much. It's kind of quote, held harmless. It's been exacerbated by the fact that Portland has been backfilling its deficit with local funds. For example, in the last year, the business income tax in Multnomah County was raised. That money was given to the Portland Public School District and the city of Portland and the county of Multnomah both gave, so that I think all three together, they gave 15 plus

million plus. Fourteen plus. Fourteen plus. Fourteen plus. One shot deals. One shot deals. If you combine that with rising expenses, the fact that if you believe schools and I do, the cost of instituting sim and cam, the new school reform standards is more expensive. Portland finds excel and Portland, of course, is the largest school district in the state. Portland finds itself in another financially tough position. Now interestingly, Ben Canada, the new superintendent, has two completely different constituencies he has to speak to. He's got to speak to the legislature, which is not controlled by Portlanders, but in fact, he's controlled by people, some of whom might even be hostile to Portland. And he's got parents who are anything but want anything but hostile. And he's got to demonstrate to the legislature that he's willing to tighten his belt and cut costs and fire administrators and maybe even close schools. And to parents, he's got to say, I don't want to cut schools. And the parents committee has, well, Canada said he was willing to close to her three schools.

And the parents committee just came out and said, well, no, we don't really want, we don't want you to close schools. It may turn out, we want you to rent vacant schools, we want you to rent vacant buildings that are non-school buildings but owned by the district and we're hoping without a lot of real details there that that will make up some of the savings that we might make by closing schools. But ultimately, we might have to close schools. The governor has said he's got a $20 million to stress schools fund, which I guess it basically is aimed towards Portland and but he said he expects some schools to be closed. So where do we end up there? It's a very tight balancing act and right now in Salem, this is all very preliminary. I mean, they're just beginning to move the chess pieces around to get some sense of how much money is available. They don't even have the most, you know, they've got another revenue forecast to come in. I'm sure that the whole charter schools issue is going to be tied up with that if Portland shows support for charter schools, there may be more money coming the way, coming the way

of Portland, if Portland demonstrates that it's willing to do something to tighten its belt, there may be more money coming its way. But I mean, it's a very interesting political game for Ben Kennedy, who's a newcomer to Portland. And he made a remarked and he wants the school board to very clearly announce support for charter schools. Was that for the legislature or the benefit of the legislature? Absolutely. There's some other things facing the district that are bad too. One of which is a new PERS mandate that schools have to kick in more for the public employee retirement system. That's going to cost them 5 million a year. And if that's the kind of thing you can go to the legislature and say, see, this is your mandate. You're forcing us to spend this money. So a lot of legislators might look towards giving some more money towards the Portland because of that, you know, to try and offset that. Also, the other thing that happened in 1990 was a shift in the ordering principle about how money comes to schools. You used to be based on a tax rate, you know, you'd have X number of dollars per thousand excess value. Now it's on per kid. You get money to this per kid.

And Portland has a declining enrollment. Every time a kid, a family moves to the burbs, Portland loses thousands of dollars. That's another thing that they're facing that is trending away from them in a bad way. So what does Portland have to do to get what they want from the legislature? They've never been very persuasive with the legislature or this particular governor about their administrative or financial efficiency. What do they need to do to say, hey, look, you know, we know, you know, may, may a culpa, we're changing, we're going to do things differently. It's cutting two out of four top administrators enough, do they have to do more than that? It's a whole range of things. Remember, this is still a small state where a lot of people know each other. So one small thing is that, is that Portland very intelligently hired a guy named Jim Scherzinger to crunch the numbers. Jim Scherzinger is arguably one of the most respected bureaucrats in Salem. So now anybody in Salem, you go to, they say, we believe the Portland School District and you say, why? And they say because Jim Scherzinger is in charge. So that helps. And they hired Dan Lavy, who is a very important and effective Republican lobbyist and campaign manager and now apparently consultant lobbyist to lobby Republicans.

They hired a Democrat who used to be with the Associated Oregon Industries fellow who's named and is escaping me right now and he's part of their public information office too. I mean, they really have picked up some very, very good players as far as the sailing perspective goes. So how do you think Ben Canade is in terms of being convincing for the legislature? Do you have any fix on that? I'm just curious. No idea yet. I don't have a foggy idea. But I do know this. Once upon a time, superintendents were hired to work inside their district and to deal with parents and to deal with teachers. And today in Oregon, superintendents job is to be a lobbyist in Salem. I've been, spent most of my life writing about suburban schools and now I'm writing about Salem schools and that's what superintendents do now in the wake of ballot measure five. They are lobbyists. He appears to be a very good public speaker and he's being received quite well in part because of his predecessor. Jack Bareworth was not well in Salem. He was virtually despised by the governor and I think Canada walks into a situation which he can't help but be better.

I'm very sure the fact of not being beer worth is a huge advantage for him right now. But what about Canada does have another job which is trying to convince parents that they should expect more out of their students and their schools and their teachers and he seems to be at least falling short so far in persuading them to accept stricter course requirements, more course requirements. Well, he gave two things. He gave a city club speech last week at which he said no more social promotions which three days later was uttered by President Clinton. I don't know who got it first but that's sort of, that's next after charter schools. There's an ocean that too many kids are moved on to the next grade and they point to I guess Atlanta actually his prior district in which they resisted social promotions just automatically moving someone on to the next grade by saying to someone who's about to flunk out, look we want you to go to summer school. And just today, Vera Kat said she would ask the city council to pony up a million dollars to create summer schools so that kids who would normally just pass on to the next grade can attend summer schools.

So he's making some attempt in that area, he's also trying to create merit pay which will be very controversial for the union. And your point is that he did have a meeting last week in which he said I want to raise the standard or require 26 credits instead of 22 and a number of parents said no. So I think he's getting sort of a mixed reaction. Okay, well I'm sure we'll be back again on this seventh up around a time for tonight, Dana Haynes, Tony Green, Dan Alexander, and Mark Sessman. Thanks for joining us this week on seven days, and thank you for watching, good night.