Wednesday, December 12, 2001
Constitution Protects Anti-Abortion Website, Lawyer Tells Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
A website and two posters branding abortion doctors “baby butchers” and criminals are protected by the First Amendment, the lawyer for a pro-life group told a Ninth U.S. Circuit Court of Appeals en banc panel yesterday.
The Portland, Ore. trial resulting in a $109 million jury verdict and an injunction against many of the activities of some of the country’s most outspoken anti-abortion activists was a “multifaceted constitutional debacle,” New Jersey lawyer Christopher Ferrara told the court.
Maria Vullo, a New York attorney representing the abortion providers who filed the suit, responded by saying that the verdict represented an appropriate response to “a carefully orchestrated campaign of terror” against her clients.
The Ninth Circuit granted en banc review following a March decision by a three-judge panel that sided with the defendants. Judges Alex Kozinski and Andrew Kleinfeld and Senior U.S. District Judge William Schwarzer, sitting by designation, said the activists could be held liable only if the material authorized or directly threatened violence.
The panel was right, Ferrara said yesterday. The pro-life movement, he told the en banc court in Pasadena, has the right to be “as obnoxious, as acerbic, as confrontational…as members of other protest groups that this country has seen throughout its history.”
The attorney, who represents the American Coalition of Life Activists and about a dozen individual defendants, rejected the plaintiffs’ efforts to link his clients to attacks on abortion providers, including the murders of three doctors. None of the individuals named on the two posters in question were shot, he noted.
The questioning pointed towards some unusual alliances among the judges.
Kleinfeld, an anti-abortion activist himself before then-President Reagan appointed him to the Ninth Circuit, closely questioned Vullo as to the evidence linking the defendants’ speech to actual violence. So did two of the panel’s more liberal members, Judges Stephen Reinhardt and Marsha Berzon.
Ferrara, meanwhile, drew some tough questions from conservative Judge Pamela Ann Rymer. The Reagan appointee suggested that the court owed some degree of deference to the jury verdict and the “meticulous findings by the district judge,” Robert Jones of the District of Oregon.
Jones called the “Nuremberg Files” website and the Old-West style wanted posters “blatant and illegal communication of true threats to kill.”
Ferrara insisted his clients were political protesters collecting data on doctors in hopes of one day putting them on trial like Nazi war criminals were at Nuremberg. Rymer, however, said there appeared to be a pattern of “implied or subtle” threats, closely linked in time to the shootings of abortion doctors named in the posters or on the website.
Vullo argued that the defendants deliberately “made themselves fearsome to the plaintiffs.” But she may have ventured into dangerous territory when she suggested that the activists could be held liable for having “ratified” previous violent behavior by endorsing it in a context designed to instill fear of further violence.
The argument didn’t appear to sit well with Reinhardt.
“What if I say I agree with the Taliban?”, he asked Vullo. “Have I ratified” their actions?, he queried.
Kleinfeld picked up on the theme, noting that many individuals who had no actual connection with the Black Panthers—a violent African American separatist organization of the 1960s—openly sympathized with the group. Under Vullo’s theory, he suggested, those sympathizers could have been held liable to the Black Panther’s victims.
Vullo contended the issue was a red herring, since—unlike in her case—the sympathizers and the Black Panthers didn’t know each other. The judge and jury in the Portland trial, she said, found on the basis of “overwhelming evidence” that the defendants “were responsible for their own actions.”
One of the plaintiffs, Dr. Warren Hern of Boulder, Colo., told reporters after the arguments that he felt Vullo had done a good job of impressing upon the judges just how dangerous the defendants’ actions were.
“The Mafia…is an upstanding civic organization compared to these people,” the physician, who said he has survived several assassination attempts, said. “The difference between these people…and the Taliban is about 10,000 miles.”
The case is Planned Parenthood v. American Coalition of Life Activists, 99-35405.
Copyright 2001, Metropolitan News Company