Abortion Foes Lose on First Amendment

9th Circuit, split 6-5, says 'Wanted' posters aimed at doctors aren't protected speech but true threats

The Recorder/May 17, 2002
By Jason Hoppin

A deeply divided en banc panel of the 9th U.S. Circuit Court of Appeals on Thursday upheld an unprecedented jury verdict against anti-abortion activists, saying their protests crossed the line from provocative speech into true threats.

The 118-page decision affirms a 1999 Portland, Ore., jury's verdict against the now-defunct American Coalition of Life Activists, as well as a federal judge's injunction against the display of "Wanted"-style posters featuring the abortion providers and a Web site called the Nuremberg Files, which called for abortion doctors to be put on trial for crimes against humanity.

But the majority sent the case back to the trial court to determine if the $107 million punitive damages award -- the largest ever against the anti-abortion movement -- violated the defendants' due process rights.

On Thursday, a lawyer for the defendants promised to appeal the decision to the U.S. Supreme Court.

What has divided the more than a dozen federal judges who have now reviewed the case is that the posters contain no explicit calls for violence. The defendants argued that their speech -- especially speech made on such a politically charged issue -- should be protected by the First Amendment.

But writing for the 6-5 majority, Judge Pamela Ann Rymer said the evidence before the jury suggested a link between similar posters appearing before the murders of abortion doctors David Gunn, George Patterson and John Britton.

"By replicating the poster pattern that preceded the elimination of Gunn, Patterson and Britton, and by putting [plaintiffs] in an abortionists' File that scores fatalities, ACLA was not staking out a position of debate but of threatened demise. This turns the First Amendment on its head," Rymer wrote.

"Holding ACLA accountable for this conduct does not impinge on legitimate protest or advocacy. Restraining it from continuing to threaten these physicians burdens speech no more than necessary."

The suit was filed in 1995 by a handful of abortion providers: Robert Crist, Warren Hern and Elizabeth and James Newhall. They feared for their lives -- going so far as to train their families as to what to do in the event of a shooting or wearing bulletproof vests -- after being targeted by protesters and named on the Web site.

To prove their case, they showed the jury volumes of evidence about the violent fringes of the anti-abortion movement and killings of other doctors that had been preceded by the display of similar posters. On the Nuremberg site, a list of abortion doctors was denoted by those who were still practicing, those who had been injured and those killed.

Thursday's decision spawned three written dissents among the five dissenting judges -- Stephen Reinhardt, Alex Kozinski (author of the three-judge panel decision), Andrew Kleinfeld, Diarmuid O'Scannlain and Marsha Berzon. All occupy a place on either the left or right wings of the court's ideological spectrum.

The majority -- Rymer, Chief Judge Mary Schroeder, Michael Daly Hawkins, Barry Silverman, Kim Wardlaw and Johnnie Rawlinson -- was formed, largely, by judges considered to be moderates.

A lawyer for the plaintiffs said the decision wasn't a tough one.

"There are many people out there who make threats to kill that don't contain the words 'I will kill you,'" said Paul, Weiss, Rifkind, Wharton & Garrison partner Maria Vullo, who represented the doctors. "There's nothing new about the law of context."

"Threatening to kill doctors and clinic staff just because they perform legal and constitutionally protected abortions is a form of domestic terrorism," said Dr. David Greenberg, executive director of Planned Parenthood of the Columbia/Willamette, a plaintiff in the case.

Christopher Ferrara, chief counsel for the American Catholic Lawyers Association, argued the case for the defense. He said the ruling means that political protesters now need an outside consultant to make sure the form of protest they choose has never before resulted in violence.

"Under this ruling, all of the posters that are out there now are threats," Ferrara said. Regarding the pattern cited by Rymer and discussed at oral argument, Ferrara said that with thousands of posters used by the movement, it was a red herring.

"The pattern exists only for the purposes of this case," Ferrara said.

As for the possibility of a Supreme Court grant of certiorari, Vullo said she would welcome it. "Making this the law of the land is not a bad thing to me," she said.

If the Supreme Court does grant cert, the case will likely occupy a commanding place in the nation's First Amendment jurisprudence. The divisiveness of the issue was underscored by the unusual passion relayed by the dissents.

"Political speech, ugly or frightening as it may sometimes be, lies at the heart of our democratic process. Private threats delivered one-on-one do not," Reinhardt wrote. "The majority's unwillingness to recognize the difference is extremely troublesome."

Kozinski weighed in with the only dissent joined by all five dissenters.

"From the point of view of the victims, it makes little difference whether the violence against them will come from the makers of the posters or from unrelated third parties; bullets kill their victim regardless of who pulls the trigger. But it does make a difference for the purpose of the First Amendment," Kozinski wrote, who went on to draw distinctions between speech communicated directly to its intended target and more generalized speech made as a part of a public protest.

Berzon authored the lengthiest objection in Planned Parenthood v. American Coalition of Life Activists , 02 C.D.O.S. 4198.

"This case is proof positive that hard cases make bad law, and that when the case is very hard -- meaning the competing legal and moral imperatives pull with impressive strength in opposite directions -- there is the distinct danger of making very bad law," Berzon wrote.

She criticized not only the principles the majority relied upon to decide the case, but other issues as well, including the lower court's evidentiary rulings.

In conclusion, she wrote:

"The defendants here pose a special challenge, as they vehemently condone the view that murdering abortion providers -- individuals who are providing medical services protected by the Constitution -- is morally justified.

"But the defendants have not murdered anyone, and for all the reasons I have discussed, neither the advocacy of doing so nor the posters and Web site they published crossed the line into unprotected speech. If we are not willing to provide stringent First Amendment protection and a fair trial to those with whom we as a society disagree ... the First Amendment will become a dead letter."