Friday, May 17, 2002
Ninth Circuit Rules:
Anti-Abortionists’ Tactics Were Threats, Not Protected by Constitution
From Staff and Wire Service Reports
An anti-abortion group and its members who created Wild West-style posters and a website targeting abortion doctors must pay damages to the physicians because their works were illegal threats and not free speech, the Ninth U.S. Circuit Court of Appeals yesterday ruled en banc.
The 6-5 ruling, contrary to last year’s decision by a three-judge panel, was the result of an unusual split. The majority consisted of Judge Pamela Ann Rymer, a Reagan appointee who wrote the opinion, and five appointees of Democratic presidents—Chief Judge Mary Schroeder and Judges Michael Daly Hawkins, Barry G. Silverman, Kim M. Wardlaw, and Johnnie B. Rawlinson.
Judge Alex Kozinski, like Rymer a Reagan-appointed conservative, dissented, along with conservatives Diarmuid F. O’Scannlain and Andrew J. Kleinfeld and liberals Stephen Reinhardt and Marsha S. Berzon.
Rymer said the posters were “true” threats when understood in context. She noted that three doctors were murdered shortly after similar posters with their names and images appeared, and said the posters read in conjunction with comments on the “Nuremberg Files” website could reasonably be viewed as threatening, even though the website by itself could not.
While upholding the jury’s verdict of liability, the court sent the case back to U.S. District Judge Robert Jones of the District of Oregon for reconsideration of the $108.5 million in punitive damages the jurors awarded to four abortion doctors and two clinics who sued a dozen abortion foes.
Many members of Congress and others had said if the court’s original ruling of last year had stood, the Freedom of Access to Clinic Entrances Act would have been gutted.
Four doctors testified they feared for their lives, and sued under racketeering laws and the 1994 Federal Access to Clinic Entrances, or FACE, Act, which makes it illegal to incite violence against abortion doctors. During trial, targeted doctors who performed abortions testified that they used disguises, bodyguards and bulletproof vests, and instructed their children to crouch in the bathtub if they heard gunfire.
“I think it says for the abortion and non-abortion community, if you threaten to kill somebody, the law is not going to protect you and the First Amendment is not going to protect you,” said Maria Vullo, the attorney who argued for the plaintiffs.
Planned Parenthood, an abortion provider, and the doctors were portrayed on Old West-style “wanted” posters passed out at rallies and on the website which listed abortion providers’ names and addresses and declared them guilty of crimes against humanity.
Jones and the Portland jury found in 1999 that the Web site and some of the posters were “true threats to kill” because the abortion doctors were being tormented and three of them murdered. Once killed, their names were crossed off the list on the Web site.
The name of Dr. Barnett Slepian was crossed out on the site shortly after he was killed by a sniper at his home near Buffalo, N.Y., in 1998.
The anti-abortion activists, under a group named American Coalition of Life Activists, or ACLA, had argued the posters were protected under the First Amendment because they were merely a list of doctors and clinics—not a threat.
They maintained they collected data on doctors in hopes of one day putting them on trial, just as Nazi war criminals were at Nuremberg.
But Rymer wrote that there was substantial evidence the posters were disseminated to intimidate physicians from giving abortions in violation of the 1994 act. “Holding ACLA accountable for this conduct does not impinge on legitimate protest or advocacy,” Rymer wrote.
The jurist distinguished NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), which held that tactics used by the NAACP in boycotting white merchants in a small Mississippi county were protected by the First Amendment.
Those tactics included the use of what the high court called “emotionally charged
Rhetoric,” including a threat to “break [the] damn neck” of any black person who shopped in one of the targeted stores. The major difference between the Claiborne boycott and the ACLA poster campaign, Rymer explained, is that in Claiborne County, no one actually broke, or tried to break, anyone’s neck.
Kozinski wrote in dissent that the record did not support a finding of “true threat” in light of the Claiborne case or Brandenburg v. Ohio, 395 U.S. 444 (1969). The defendants, he said, “said nothing remotely threatening yet they find themselves crucified financially” because their words might spur “unrelated parties” to commit acts of violence.
The anti-abortion activists’ attorney, Christopher Ferrara, said they would ask the U.S. Supreme Court to review the ruling.
“Frankly, I’m stunned,” Ferrara said. “This ruling means that any poster that condemns an abortion doctor by name is a violation.”
Defendant Andrew Burnett, the former publisher of Portland-based Life Advocate Magazine that was shut down after the 1999 verdict, was disappointed with the court’s decision.
“When you think about it from the perspective of people who want to take advantage of the freedom we have in this country to speak out against the status quo, this chills the ability to do that,” he said.
Among the other defendants are Michael Bray of Bowie, Md., author of a book that justifies killing doctors to stop abortions. Bray went to prison from 1985 to 1989 for his role in arson attacks and bombings of seven clinics.
The case was widely seen as a test of a Supreme Court ruling that said a threat must be explicit and likely to cause “imminent lawless action.”
During the trial, Jones had told the jury the posters and Web site should be considered threats if they could be taken as such by a “reasonable person.” Jones also had instructed the jury to consider the history of violence in the anti-abortion movement, including the slayings of Slepian and two other doctors whose names had appeared on the list.
After the jury’s verdict in 1999, the judge called the Web site and wanted posters “blatant and illegal communication of true threats to kill.”
The appeals court ordered Jones to take another look at the punitive damage award in light of the circuit’s November 2001 decision in the Exxon Valdez case, in which the court said a $5 billion punitive damages verdict against the oil company was “excessive.”
In that case, the court found punitive damages that exceeded four times compensatory damages to be “grossly inappropriate.” In the abortion case, the punitive damages were more than eight times the compensatory damages.
But it is unlikely the defendants would ever pay the damages.
Burnett, for example, said the plaintiffs and their lawyers have been seeking the $8 million portion he was originally assessed in punitive damages, but says he is judgment proof because he does not own property.
The case is Planned Parenthood v. American Coalition of Life Activists, 99-35320.
Copyright 2002, Metropolitan News Company