It might have come down to a simple question mark.
On July 29, 1994 anti-abortion advocate Paul Hill killed Doctor John Britton and his body guard, James Barrett, as they pulled into the parking lot of the Ladies Center in Pensacola, Florida. Hill just calmly walked up to the pick-up truck, took out a shotgun and, aware that the Doctor was wearing a bullet proof vest, shot him in the face. Hill was quickly arrested, tried and convicted. He died by lethal injection on Sept 3, 2003.
Several months before the murders, I was at the White House when President Bill Clinton signed into law the Freedom of Access to Clinic Entrances (FACE) Act. That law prohibited the “use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with …any person who is obtaining reproductive health services or providing…such services.” That law also included language confirming that anti-abortion protestors could exercise their First Amendment rights without fear of prosecution. Of course, how one defined the right to protest was subject to interpretation.
Once the law became effective, pro-choice groups started lobbying the Department of Justice to use it against protestors who were considered particularly dangerous. Paul Hill, because he believed that it was “justifiable homicide” to kill an abortion doctor, was very high on the list.
A long-time presence at the Ladies Center, Hill was known for carrying with him a very large sign that read: “EXECUTE MURDERERS ABORTIONISTS ACCESSORIES?” The sign caught the attention of many in the media, it intimidated patients and it terrified the clinic staff. When the National Coalition of Abortion Providers held a memorial service for Doctor David Gunn at the site of his murder in March, 1994, Paul Hill was quietly walking back and forth with that very sign.
Pro-choice groups were very concerned about Hill (as were some anti-abortion advocates), but the lawyers at the DOJ were not sure what they could do about him. In June, 1994 I had a conversation with one of their attorneys and he said that he had not crossed the Free Speech line because he was not saying out loud “I am going to kill a doctor.” Instead, he was “merely” expressing his views on the issue, i.e., saying that he thought it was “justified” to kill an abortion doctor. When I raised the issue of the sign, the attorney directed me to the question mark at the end of the sentence. I had never noticed it. Paul Hill was “merely” posing the question.
Was Paul Hill really that smart? Did he understand how far he could push the First Amendment? We’ll never know. We do know, however, that Hill was being watched very carefully by the authorities but that sign – and his very ugly speech – was not actionable.
I often wonder what the authorities might have done if there was no question mark on his sign.
I wonder if a case could have been made under the FACE law?
I wonder if the lives of two people could have been saved?