28 May 2002

The Wall Street Journal, May 28, 2002

Abortion Protesters Use Cameras,
Raise New Legal Issues, Lawsuits

By YOCHI J. DREAZEN
Staff Reporter of THE WALL STREET JOURNAL

DENVER -- As soon as he saw the blue minivan turning into the parking lot of Planned Parenthood's small abortion clinic here, Kenneth Scott grabbed his digital camera, clambered up his rickety metal ladder and started snapping pictures.

"You'll have nightmares about this day the rest of your life," he bellowed, photographing the blond woman gingerly leaving the minivan. Then he turned his camera to her escort. "Your sin won't be hidden or forgotten," he screamed.

Mr. Scott is doing his best to make sure of that. Within hours of his photo expedition early this month, he was home downloading the pictures onto his computer so he could e-mail them to Neal Horsley, a fellow activist in Carrollton, Ga. Mr. Horsley runs a Web site devoted to deterring "homicidal mothers" from seeking abortions by posting photos of women seen entering abortion clinics. New pictures he gets are often on the Web within days.

The site, Abortioncams.com, which Mr. Horsley claims gets almost two million hits a month, marks a tactical shift by the anti-abortion movement. Increasingly, protesters are targeting women who seek abortions, not just doctors who perform them. The weapon of choice: the camera.

"Shame enough women into realizing that eternal damnation awaits them if they murder their baby and the abortionists won't have any work to do," says Mr. Scott, whose aging brown van bears a small handwritten sign reading "Smile! You're on Christiangallery.com!" (It's another Horsley Web site.)

Mr. Scott and his wife, Jo, are part of a loose-knit network of several dozen activists from 24 states who send photos to Mr. Horsley's and a handful of other Web sites. In Portland, Ore., an affable man named Paul deParrie takes photos of women entering clinics for Mr. Horsley as well as for his own anti-abortion site, Portlandporcupine.com. Mr. Horsley hopes to have contributing photographers in every state by the end of the year. He also says he hopes to start adding the women's names and addresses. Some postings already show license-plate numbers.

The tactic poses difficult legal questions that courts are just beginning to tackle. Last year, an Illinois woman whose photo and medical records were posted online sued the activists who took the photo and the man who ran the Web site, a friend of Mr. Horsley's. Her pending damage suit says the posting violated her privacy and subjected her to humiliation and potential harm.

A "right to privacy" doesn't appear in the Constitution or the Bill of Rights, but for the past 37 years, courts have increasingly held that Americans have a right to keep many details of their lives secret. Among issues the courts could someday have to weigh with regard to this tactic is whether women going in for abortions lose any of this protection because they're in a public place -- or, to the contrary, whether entering a clinic for a medical procedure affords additional privacy protection. Courts may have to consider whether the Web sites implicitly threaten violence against the women. And they'll certainly have to weigh the claim of the activists that they are journalists whose work is protected by the First Amendment right to free speech.

"This is a new area for the law, and there's no easy answer based on past cases that makes this a slam dunk in either direction," says Jonathan Zittrain, co-director of Harvard Law School's Berkman Center for Internet & Society.

In Denver, a Planned Parenthood clinic set in a low-slung gray building in a poor residential area is the site of a strange game of cat and mouse. When protesters first began carrying still and video cameras here last summer, clinic employees strung tall gray curtains alongside the parking lot to block the view from the sidewalk. The protesters brought in ladders. Then Planned Parenthood's volunteer escorts began carrying huge umbrellas to try to shield the women's faces.

Stan Roebuck, Planned Parenthood's security director for the Colorado region, says the presence of the cameras "ratchets up the tension for women who are already under extreme stress." To Kate Michelman, president of the National Abortion and Reproductive Rights Action League, "This is like drawing a bull's-eye on the backs of these women and inviting those who are irrationally zealous to take action." The activists say they're doing nothing to incite or threaten violence.

One California mother of two says she was shocked when she was told by a friend that her photo was on Mr. Horsley's site. "Getting an abortion was the most difficult and personal decision I've ever had to make," says the woman, requesting anonymity because she doesn't want friends and family to know she had one. "I couldn't believe that some stranger had the nerve to share it with the world."

Fighting Back

One woman is fighting back in court. She suffered a cervical tear while a patient at the Hope Clinic in Granite City, Ill., and needed to be rushed to a hospital. As clinic staffers wheeled her toward a waiting minivan, one of a group of antiabortion protesters outside, Daniel Michael of nearby Highland, Ill., saw what was happening and snapped a picture of her. Within days, her picture as well as her medical records -- obtained through an unknown source -- were on a Web site called Missionaries to the Unborn. It didn't name her but included her age, the name of her tiny hometown, the fact that she was married and the age and sex of her only child.

Identified as "Jane Doe" in court papers, the woman alleges the photo and records revealed her identity, violating her privacy and opening her to potential public humiliation and physical violence. She said in a deposition in state court in Edwardsville., Ill., that she feared an extremist could try to track her down and harm her. She declined to comment for this article.

The defendants include Mr. Michael, his wife, Angela, and Stephen Wetzel, who runs the Web site. The suit also names the hospital, recently renamed Gateway Medical Center, for failing to make sure her records stayed confidential. Mr. Michael and Mr. Wetzel say the records came to them anonymously.

The woman is seeking more than $400,000, mostly in punitive damages. State court judge George Moran issued a temporary restraining order last summer ordering removal of her photo and medical records from Missionaries to the Unborn and another Web site. The case is pending.

Mr. Wetzel says the woman has no reason to fear for her safety. "Nobody's going to go after a girl for getting an abortion," he says. "They're as much a victim as the babies are." Mr. Michael says the medical records shouldn't have been put online. He says the woman has a right to privacy but adds that it wasn't violated because the photos were blurry and the records were redacted to exclude her name and address. "This wasn't meant to harm her -- it was just to let the world know what happens at that clinic," he says. The hospital didn't return a call seeking comment.

One tough legal question likely to arise as these tactics continue is whether posting women's photos on a site such as Mr. Horsley's -- which likens abortion to murder and speaks of divine punishment for patients and their doctors -- amounts to a threat against their safety. A person making such a claim could have a high bar to clear. Courts have generally found that plaintiffs alleging threats to their safety must show the defendant directly threatened to do violence against them.

In a 1982 Supreme Court case, NAACP v. Claiborne Hardware, black activists working to enforce a civil-rights boycott against several white-owned businesses in Mississippi stood outside and wrote down the names of blacks who continued to shop there. The names were read aloud at a public meeting and published in a newspaper, leading to several assaults and arsons. Later, an organizer was quoted as saying that if he caught anyone "going in any of them racist stores, we're gonna break your damn neck." The high court said the statement was constitutionally protected because there was no evidence the organizer had authorized a specific act of violence or threatened to commit one himself.

Mr. Zittrain and other legal experts say that current privacy laws don't appear to protect a person from being photographed while in a public place, but that women could potentially sue the photographers or the sites for intentional infliction of emotional stress or illegal intimidation.

A Suit in Oregon

The women could benefit from a recent appellate-court decision that touched on another Web site Mr. Horsley runs, Nuremberg Files, which carries abortion providers' names, addresses and photos and crosses out their names when they've been killed. It was cited in a lawsuit against others -- a group called the American Coalition of Life Activists -- as evidence of intimidation.

Planned Parenthood, several doctors and a clinic in Portland, Ore., filed the suit in federal court in Portland. It alleged the Coalition had incited violence and broken a 1994 federal law that allows doctors and clinic workers to sue antiabortion protesters they believe have tried to intimidate them into no longer doing the procedure.

In 1999, a jury awarded the plaintiffs nearly $107 million, virtually all punitive damages. Two years later, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco overturned the verdict, saying that though the site and some of the group's posters used inflammatory language and imagery, they didn't contain any explicit threats of physical harm to an individual.

But this month the full 9th Circuit reversed that decision and said that the activists had "made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ... intent to harm them." The court said the doctors had begun wearing bulletproof vests as a direct result of the posters and Web site, and concluded the protesters' activities "amounted to a true threat and not protected speech." The activists promise to appeal, and many observers expect the Supreme Court to take the case because of the thorny questions of free speech and abortion access it raises.

Mr. Scott, the picture-taking end of the Scott-Horsley operation, says he had a personal experience with abortion 23 ago, when he got a girlfriend pregnant and paid for her to have an abortion. Later he married, and he says that after his second marriage fell apart he became a born-again Christian. Now he spends much of his free time protesting at abortion clinics across the country. He met his third wife, Jo, at an anti-abortion protest near the 1996 Republican convention in San Diego.

The two, devout Grace Christians, play the part of bad cop and good cop; Mr. Scott screams at the women about hell and damnation, while Mrs. Scott quietly approaches cars pulling into the clinic to offer women ultrasound tests, financial help or advice about adoption.

One afternoon earlier this month in Denver, Mr. Scott yelled at a woman in a green jacket hurriedly walking toward the clinic doors with a tall man in a red T-shirt. "Don't kill your baby," he said. "You'll always wonder if it was a boy or a girl."

His words had the desired effect: The man turned to swear at Mr. Scott and raised his middle finger, while the woman pivoted to see what the commotion was. Mr. Scott, wearing a placard around his neck reading "Life begins at conception and ends at Planned Parenthood," quickly took several photos.

By the end of the day, he had snapped more than 90 pictures in all, the scenes ranging from the confrontational to the prosaic. In one photo, a woman in a green jacket was running toward the facility while her male companion, a tall man with a pony tail and goatee, raised his fist at the camera. In another, two women stepped out of a parked car. The women's faces were all clearly visible.

At home in a suburb of Boulder, Colo., Ms. Scott hooked the camera to a desktop computer in her basement and transferred the photos to an online picture-sharing service called Ofoto. Minutes later, they were on their way to Mr. Horsley in Georgia. There, in a home office cluttered with tripods, guitars, an overflowing bookcase and photos of his college-age children, Mr. Horsley soon began downloading the photos into a computer.

Getting them online takes time. The first step is choosing, sometimes from as many as 500 pictures sent him in a week, he says. Mr. Horsley says he is a journalist trying to tell a story, and wants to avoid using pictures with poses or expressions too similar to others he has posted on the site. He also resizes the photos and edits their color and lighting, though he says the Scotts' photos rarely need much retouching. "They're pros," he says.

"From my point of view," Mr. Horsley says, "this is a news report that has the ability to send a message. I want images that capture the look on a woman's face as she goes to a place where babies are being killed."

After picking the photos, the final step is to make duplicate versions of each photo, including a miniature that will appear on a Web page full of other shots from each state and a full-size image that viewers can access by clicking on the small one. The whole process takes about 15 minutes per picture.

Maintaining the site costs about $10,000 a year. Mr. Horsley pays for much of it through his day job as a computer and Internet consultant. He also gets donations from other anti-abortion activists. He tries to update the site every day, and says he's always looking for new photographers. "Get out there to your local butchertorium with your zoom lenses and get those cameras rolling," he writes on his Web site. "Point and click."

Write to Yochi J. Dreazen at yochi.dreazen@wsj.com

Updated May 28, 2002