Yesterday, a North Carolina court convicted Philip “Flip” Benham of two counts of criminal stalking and the disruption of domestic tranquility for plastering “Wanted” posters of four abortion providers throughout the doctors’ neighborhoods. Benham, an anti-abortion activist who has headed Operation Rescue and currently runs Operation Save America, was sentenced to two years of probation. He and his associates were also ordered to stay away from the doctors’ homes and offices.
The posters Benham and his associates distributed contained the names, color pictures, and office addresses (and in one case, home address) of abortion providers — all topped by a “Wanted” sign in classic Old West style. “Their specialties are Obstetrics, Gynecology, and Murder,” one poster declares, and says the doctors “harm women and kill babies.” Another reads “Abortionist Dr. [redacted] Kills Babies.” The posters do not explicitly encourage violence against the doctors. Instead, one reads that, “We are asking you to help us expose both [doctors] to the powerful Gospel of Christ, to His love and His mercy, so they can use their wonderful gifts and talents to bring life rather than death. Our desire is that these two men continue bringing babies into the world and stop taking them out.”
“These ‘Wanted’ Posters Are a Call For My Murder”
Abortion providers and pro-choice advocates see the posters as a clear threat to the lives of abortion doctors. They argue that their intent is not to urge doctors to ply their “wonderful gifts and talents” on c-sections, but to encourage someone to take it upon him or herself to permanently remove the doctors and their talents from the world. In a recent interview with CBS, one of the doctors who was targeted by the posters says, “It doesn’t say wanted dead or alive, but the implication is clearly there…These ‘wanted’ posters are a call for my murder.” Because of fears for his safety, the doctor is kept in shadow throughout the interview.
In addition to the suggestion of “dead or alive” and the widespread distribution of doctors’ identifying information and pictures, the posters have an unsavory history that makes their presence feel even more threatening. As noted by NPR and CBS, the last time posters like these were circulated, they were accompanied by a wave of attacks on abortion providers. A few weeks ago, The Rachel Maddow Show did a piece that Maddow called “the scariest thing on our show,” revealing the most recent appearance of these “Wanted” posters in North Carolina. Maddow describes in detail the grim cycle of “Wanted” posters appearing and abortion doctors being killed.
Flip Benham insists that the First Amendment gives him the right to distribute the posters, and that objects to the suggestion that they are threats. His defenders point to the language on the posters that call for prayer, not bullets, and insist that lone-wolf vigilantes shooting abortion providers aren’t connected to Operation Save America’s “advocacy.” These assertions ring very hollow to me after just a few minutes on his website — one of the first articles I came upon begins “Justice demands that when one sheds innocent blood, by man must his own blood be shed…Executing the guilty is a very loving thing to do!” — but intent is a difficult thing to prove.
Still, when pro-choice advocates say the posters are threats and are not protected free speech, they have some legal precedent on their side. While it would be a stretch to consider the posters direct incitement to imminent violence, in 2002 the 9th U.S. Circuit Court of Appeals ruled that “wanted-style” posters and internet hit lists like Operation Rescue’s infamous “Nuremberg Files” scorecard constituted unprotected “true threats.” (For more on what is considered a ‘true threat,’ see the 2003 Supreme Court ruling Viriginia vs. Black.)
Because the Supreme Court never examined the case of the “Wanted” posters, though, the decision classifying them as prosecutable speech doesn’t apply nationally. Even if the case did come before the Roberts court, its outcome is far from certain.
In this case, of course, Benham was tried under state and local laws. In fact, his conviction was the first under a new state law prohibiting targeting individuals at home — if I understand correctly, that’s the “disturing domestic tranquility” part of the conviction. These charges are easier to prove than federal charges, but they also carry much lighter penalities. According to NPR, pro-choice advocates are pushing for federal charges to be filed — presumably for violating the FACE Act, which the 9th Circuit Court ruled “Wanted” posters of abortion providers do.
Living in Fear
though it allows Benham to portray himself as a martyr for his convictions, his short, easy sentence does little to deter those who may want to incite violence against abortion doctors. The murky haze around what it means to incite violence and conspire to kill is in the favor of those distributing the posters. Unless someone actually pulls a trigger, or unwisely says “Everyone, go kill an abortion doctor right now, and I mean it!” on national television, law enforcement seems unable to do more than issue stern warnings.
Benham’s slap on the wrist comes close on the heels of another light punishment for an anti-abortion activist directly, umambiguously threatening a doctor. Dr. Warren Hern is the only remaining doctor in the United States who is generally known to perform late-term abortions, so it’s natural that his is a prime target for anti-abortion extremism. Three weeks after the murder of Dr. Hern’s friend and colleague Dr. George Tiller, Donald Hertz called Dr. Hern’s office and said that two Vietnam veterans were on their way to hurt his family. Hertz was quickly found and arrested, but last week Hertz was sentenced to just 180 days of house arrest and five years of probation for threatening Dr. Warren Hern and his family.
“He terrorized me and my family, and all he got was a slap on the wrist,” Dr. Hern told Time Magazine. When the interviewer asked if he was scared, Hern replied, “I have been committed to this work since I started in 1973. I will continue doing it,” but continues, “it is the clear policy of the American anti-abortion movement to kill every doctor who does abortions. It is not a secret.”
In the segment of her show I linked to above, Rachel Maddow says “[T]here is a lot of anxiety among abortion providers in America right now, because many of them believe there is a network of anti-abortion extremists at work. And as long as that network, they believe, is supporting the murder of abortion doctors, is not dismantled, as long as only the shooter himself is apprehended and identified, they feel that they are just waiting for another murder.” Early the next week, her show aired a documentary in which abortion providers argued that groups like Operation Rescue and Operation Save America are responsible for inciting supposedly “lone wolf” shooters to kill abortion doctors.
For the doctors who were targeted by this most recent spate of “Wanted” posters, the threat is real. Even though they haven’t been bullied into hiding, they are constantly faced with hatred and the threat of violence. They go to work each morning knowing that other abortion providers were targeted by similiar posters, protests, and publicity, refused to be intimidated — and are now dead. They know anti-abortion extremists have their names, their pictures, their addresses, their license plate numbers, and a burning conviction that they are mass murderers. Since these doctors believe an influential man with a ferociously devout following has just painted a target on their backs, knowing he’ll be on probation for a few months is cold comfort.
Photo of Flip Benham "accus[ing] cameraman Mark Lyon of being godless and supporting abortion" (Mr. Lyon's caption) was taken by Mark Lyon. It is found on his flickr here, and reused with thanks under Creative Commons License.