ARE "ABORTION CAM" WEBSITES, WHICH POST PHOTOS OF WOMEN ENTERING ABORTION CLINICS, PRIVACY-VIOLATING OR FIRST AMENDMENT-PROTECTED?

Recently, antiabortion activists have adopted a new tactic: Posting photos of women entering abortion clinics on websites. (Abortioncam.com is one such site).

Are the "abortion cam" websites a legitimate exercise of First Amendment rights? Or are they an improper and threatening violation of privacy that puts the women depicted in danger?

Some legal experts, such as UCLA Law School Professor Eugene Volokh, conclude that posting the photos is constitutionally protected. But in my view, the women depicted have strong claims of privacy invasion - particularly pursuant to the privacy tort of "public disclosure of private facts" - and emotional distress against the sites, and the sites have only a weak First Amendment defense. In court, the women will likely prevail.

The Role of the Internet

The sites' tactic shows one facet of the Internet: it can "out" people, publicizing their identity along with information about them. While the Internet's ability to confer anonymity has been much discussed, its ability to remove it is less often remarked.

This ability, however, is not unique to the Internet. For this reason, while the Internet lowers the costs and difficulty of posting the photos, the fact that these photos are on the Internet does not play a significant role in the legal analysis.

The photos' effect - making women feel threatened and shamed - would be the same if they were published in a flyer or newspaper distributed locally. (Indeed, a local publication flyer might be even more effective than a website, for friends, family and colleagues might be more likely to see it.)

The Nuremberg Files Case Is A Close, But Uncertain Precedent

The analysis courts would apply, then, will simply be traditional First Amendment analysis. The most directly applicable precedent is probably the recent Nuremberg Files case in the Ninth Circuit. However, that case will likely reach the Supreme Court, and its ultimate outcome is therefore uncertain.

The Nuremberg Files website - maintained by the same man who founded Abortioncams.com - featured abortion providers' photos, names and addresses. It also put a strike mark through the name of any provider killed. The providers sued the site; the site asserted a First Amendment defense.

However, on appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the decision. Then, this past week, a larger, en banc panel of the Ninth Circuit disagreed with the three-judge panel and reinstated the injunction. What the Supreme Court will do, if it accepts the case, remains to be seen.

Do the Photos Count As Threats? Probably Not.

If the Abortioncams.com photos were to rise to the level of threats of violence against the women depicted, the sites and the photographers would not enjoy First Amendment protection. But unlike the Nuremberg Files site, the Abortioncam site does not seem to include clear threats or to encourage harm to the women identified. (For instance, it does not have "strike-outs" of the women's names.)

Instead, shame is the weapon of choice. For example, on a section of the site explaining its purpose, it states, "If you were pregnant, would you be more or less likely to go kill your baby if you knew there was a possibility your picture might be published in a place where your friends and family and the whole world might see it."

It May Be Significant To Courts That the Women Are Attempting to Exercise A Right

As a result, the "threat" argument may not work. Nevertheless, there are other reasons First Amendment protection may not extend to the site. The fact that the women are trying to protect not only their privacy, but also their constitutional right to an abortion, established in Roe v. Wade, may be one of them.

After all, the Supreme Court has dealt with clashes between asserted First Amendment rights and the constitutional right to obtain an abortion before - and has done so, in particular, in suits on behalf of women who sought not to be intimidated on their way to the abortion clinic.

For example, in the 1994 case of Madsen v. Women's Health Center, the Court upheld the constitutionality of a 36-foot buffer zone on a public street around an abortion clinic, as well as limited noise restrictions around the clinic. It remarked that "The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests."

It would not be a stretch to say that the Court would find that patients should not have to take Herculean efforts to escape prying cameras outside an abortion clinic, either.

Professor Volokh (on his blog) has compared the Abortion Cam sites and their photographers to "store watchers" in another important Supreme Court case, the 1982 decision in NAACP v. Claiborne Hardware. But the case is inapposite.

In Claiborne Hardware, Volokh writes, '''Store-watchers' stood outside the stores and recorded the names of blacks who weren't complying with [a] boycott [by black consumers of white-owned stores]; the names were then read aloud in church and published in a local newspaper." There, however, the watchers were attempting to vindicate civil rights, not inhibit their exercise. (There is no constitutional "right to shop," after all.)

Moreover, the plaintiffs in the Claiborne Hardware case - who were the white storeowners, not the blacks whose names were read and published - did not and could not bring claims of invasion of privacy or intentional infliction of emotional distress. In contrast, such claims could be brought by women whose photos are published on the abortion cam sites.

Finally, the fact of where one shops is far less private, in any case, than the fact of whether one has had an abortion. The Supreme Court has long recognized that reproductive matters, including abortion, occupy a special zone of privacy protection under the law.

In sum, Claiborne Hardware hardly decides the question of whether abortion cam sites can be shut down consistent with the First Amendment.

The Women Are Not "Fair Game," and Their Abortions Are Not "Newsworthy"

Another common argument in defense of the sites is similarly unpersuasive. Some have said that because the women are on public streets when they are photographed, they are somehow "fair game" for the anti-abortion activists' digital cameras.

This claim is often factually incorrect. For instance, the photographer of the Illinois woman who was suffering from complications from an abortion pushed past hospital workers, who were trying to shield her from cameras, in order to get his shot. What is a woman supposed to do? Take an underground tunnel from her home to the abortion clinic? Most women probably try to make their trips to clinics as private as possible.

And in any case, the "fair game" argument is legally irrelevant if the correct variety of claim is brought. While photographing the woman may not support a claim for certain privacy torts, since the women are in public, it may still support a claim for "public disclosure of private facts" or intentional infliction of distress.

The number of women who get abortions may, on the other hand, arguably be a matter of legitimate public interest, but if all the sites were interested in was a head count, they certainly would not need to use a camera. Alternatively, if they did insist on publishing photos, they could black out identifying features. Of course, they do not, and that is because they are interested in shame and intimidation and deterring women from exercising constitutionally protected rights - not in disseminating news.

Allowing the Women to Be Photographed Would Mean Many Others Could Be, Too

Removing the issue from the emotionally charged context of abortion for a moment, it is worth asking whether we as a society want people posting photos of individuals entering a building for say an Alcoholics Anonymous meeting, or a support group for people with HIV? These trips are not newsworthy. Moreover, the public interest in allowing people to associate with others away from prying eyes, in these cases, outweighs the public interest in "outing" their identities.

The balance of all these arguments militates strongly in favor of privacy, and against a First Amendment right for abortion cam sites. Accordingly, let's hope that these sites find it as difficult to hide behind the protection of the First Amendment, as the women seeking abortions have found it difficult to evade the digital cameras.