Legal Commentary

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.