Thursday, October 4, 2001
En Banc Ninth Circuit to Hear Case of Threats Against Abortion Doctors
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday agreed to decide en banc whether a Web site and wanted posters branding abortion doctors “baby butchers” and criminals are protected by the First Amendment.
The order by a majority of the court’s 25 active judges vacates a three-judge panel’s March decision to throw out a record $109 million verdict by a federal jury in Portland, Ore. against some of the country’s most outspoken anti-abortion activists. The panel said the activists could be held liable only if the material authorized or directly threatened violence.
The ruling came two years after the District of Oregon jury found in favor of the local Planned Parenthood affiliate and four doctors. Jurors concluded that a dozen abortion foes violated federal racketeering law and the 1994 federal law that makes it illegal to incite violence against abortion doctors.
The case has been widely seen as a test of a Supreme Court ruling that said a threat must be explicit and likely to cause “imminent lawless action.”
Judge Alex Kozinski, writing for the panel in March, said encouraging lawless action by others is constitutionally protected absent a relationship between the speaker and those who act.
“If defendants threatened to commit violent acts, by working alone or with others, then their statements could properly support the verdict,” Kozinski wrote. “But if their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment.”
Kozinski was joined in the opinion by Judge Andrew M. Kleinfeld—an anti-abortion activist himself before then-President Reagan appointed him to the Ninth Circuit—and Senior District Judge William Schwarzer of the Northern District of California, sitting by designation.
Planned Parenthood and the doctors were portrayed in the Old West-style wanted posters as “baby butchers,” and a Web site called the “Nuremberg Files” listed the names and addresses of abortion providers and declared them guilty of crimes against humanity.
The anti-abortion activists said their posters and Web site were protected under the First Amendment because they were merely a list of doctors and clinics—not a threat.
“I think its a great relief that our posters are just as protected by the First Amendment as the posters of any other movement,” Christopher A. Ferrara, the attorney who represented the activists, said at the time of the ruling. Ferrara is with the New Jersey-based American Catholic Lawyers Association.
USC law professor Erwin Chemerinsky, who authored a brief in support of the plaintiffs on behalf of several Jewish organizations and urged the court to take the case en banc, said the three-judge panel failed to properly draw the line between speech and intimidation.
The test, he said, ought to be whether “a reasonable person is made to feel in danger of his or her life or safety.” Chemerinsky suggested that “nobody has the right to make somebody else feel endangered.”
That’s the test U.S. District Judge Robert Jones applied at the trial, and that has been applied by other courts around the country, the professor said.
The situation, he opined, is analogous to one in which a criminal defense lawyer tells a possible prosecution witness he will be in physical danger if he testifies.
That’s obstruction of justice under the prevailing view, Chemerinsky said. But “Kozinski’s opinion would require you to show that the defense lawyer is the one that’s going to carry out the threat,” he reasoned.
During the trial, Jones instructed the jury to consider the history of violence in the anti-abortion movement, including three doctors killed after their names appeared on the lists.
One was Dr. Barnett Slepian, who was killed by a sniper in 1998 at his home near Buffalo, N.Y.
Slepian’s name was crossed out on “The Nuremberg Files” Web site later that same day.
Doctors who were on the list testified that they lived in constant fear, used disguises, bodyguards and bulletproof vests, and instructed their children to crouch in the bathtub if they heard gunfire.
The defendants maintained they were political protesters collecting data on doctors in hopes of one day putting them on trial like Nazi war criminals were at Nuremberg. After the jury’s verdict, the judge called the Web site and the wanted posters “blatant and illegal communication of true threats to kill.”
The man who ran the Nuremberg Web site was not a defendant in the lawsuit, but his Internet provider pulled the plug on the site after the verdict.
Among the defendants was 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.
Another defendant was Cathy Ramey of Portland, an editor at Life Advocate magazine and author of “In Defense of Others,” which defends people who refuse to condemn the killing of abortion providers.
The case is Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 99-35320.
Copyright 2001, Metropolitan News Company