Thursday, March 29, 2001
Free-Speech Ruling Boon for Abortion Foes
By HENRY WEINSTEIN, Times Legal Affairs Writer
In a major victory for militant abortion foes, a federal appeals
court Wednesday declared that an Internet Web site and Wild West-style
"wanted" posters identifying abortion providers as "baby butchers" who
should be punished are free speech under the 1st Amendment.
In its unanimous decision, the U.S. 9th Circuit Court of Appeals in
San Francisco threw out a $107-million Portland jury verdict that had
found the posters and Web site were a real threat to the doctors and the
clinics where they worked.
Wednesday's ruling effectively limits the reach of a 1994 federal law
designed to protect access to abortion clinics. Anti-abortion activists
hailed it, saying it protected their right to speak out vigorously.
Doctors and pro-choice groups predicted that the decision would lead to a
surge of violence against abortion providers.
"Defendants can only be held liable if they authorized, ratified or
directly threatened violence," Circuit Judge Alex Kozinski wrote for the
three-judge panel. "If defendants threatened to commit violent acts, by
working alone or with others, then their statements could properly
support the verdict.
"But if their statements merely encouraged unrelated terrorists, then
their words are protected by the 1st Amendment," Kozinski said.
Legal scholars had been following the case closely as a window into
how far anti-abortion activists can go. The decision, binding in nine
Western states including California, lifts a legal and financial cloud
from some of the nation's staunchest anti-abortion activists.
The plaintiffs in the Oregon case--four doctors, Planned Parenthood
and a feminist clinic in Portland--were the first to win a jury verdict
under the 1994 Freedom of Access to Clinic Entrances Act, which bars the
use of force or threats of force to prevent access to reproductive health
The doctors and Planned Parenthood were portrayed on the wanted
posters and on the Web site as "baby butchers."
The Portland jury rendered the huge award--$526,336 in compensatory
damages and $106.5 million in punitive damages--against two anti-abortion
groups, the American Coalition of Life Activists and Advocates for Life
Ministries, and 13 individuals.
In addition, U.S. District Judge Robert E. Jones, who was appointed by
President George Bush in 1990 and presided over the Portland case, issued
a separate injunction saying that the posters and the Web site were "a
blatant and illegal communication of true threats to kill, assault or do
bodily harm." The 9th Circuit on Wednesday voided that injunction as
A day after the jury verdict was rendered in February 1999, an
Internet service provider in Atlanta shut down the Web site--called "The
Nuremberg Files"-- which contained a list of doctors who provide
abortions, including in some instances their photos, addresses, car
license numbers and names of family members.
Nearly 20 Internet service providers have since refused to host the
site. But the operator, Neal Horsley, a Carrollton, Ga., computer
programmer, has managed to keep it online, and now uses a server in South
Widely Varied Reaction
"Hallelujah," Horsley proclaimed Wednesday when told of the decision.
He was not a named defendant in the Portland case but has been involved
in related litigation.
The ruling was hailed by defendant Dawn Stover, a Portland homemaker
who described herself as a longtime opponent of "legalized child
killing." "This is great news. The Constitution still stands."
Also lauding the decision was defendant Michael Bray, a Bowie, Md.,
Lutheran minister who has served 46 months in prison in connection with
bombings of abortion clinics. In his 1993 book, "A Time to Kill," Bray
defended the actions of several anti-abortionists who had committed
murders and arsons.
On the other hand, Dr. Warren M. Hern of Boulder, Colo., one of the
plaintiffs, said he was "shocked, disappointed and alarmed" by the
ruling. "This decision is clearly a green light to the most violent and
radical anti-abortion fanatics in the country that they can get away with
it and not worry," said Hern, who has performed abortions since 1973.
Hern, who was the target of an assassination attempt in 1988 and
sometimes wears a bulletproof vest, said he was very frightened. "I can't
wear a tank."
Both Katherine Spillar, national coordinator of the Feminist Majority
Foundation in Los Angeles, and Vicki Saporta, executive director of the
National Abortion Federation in Washington, offered similarly dire
predictions. Saporta said there had been seven slayings of doctors who
provided abortions in the last 10 years--including three of the
physicians on wanted posters--and another 17 attempted slayings.
New York attorney Maria T. Vullo, the lead lawyer for the plaintiffs,
said she firmly believes that the 9th Circuit ruling is wrong. She said
she would ask for a rehearing by a larger panel of 9th Circuit judges and
failing that, would seek review by the U.S. Supreme Court. "We will
continue in our efforts to protect our clients from intimidation and
violence," she said.
Attorneys Stephen J. Safranek of Ann Arbor, Mich., and Christopher A.
Ferrara of Ramsey, N.J., who represented the defendants, said they were
not surprised by the decision.
"This is a reaffirmance of 1st Amendment liberty," said Ferrara of the
American Catholic Lawyers Assn. "The posters simply do not contain any
threats and, in comparison to what we see in other protest movements,
they are rather tame. . . . I have seen posters of President Clinton with
a bull's-eye on them," Ferrara said.
In their opinion, the judges agreed with the arguments of Safranek, a
professor at Ave Maria Law School, that the case was governed by a 1982
U.S. Supreme Court decision, NAACP vs. Claiborne Hardware Co.
In that case, cited repeatedly by Kozinski, a group of white-owned
businesses sued the NAACP and others who organized a civil rights boycott
against certain stores in Mississippi.
"To give the boycott teeth, activists wearing black hats stood outside
the stores and wrote down the names of black patrons," Kozinski wrote.
"After these names were read aloud at meetings and published in a
newspaper, sporadic acts of violence were committed against the persons
and property of those on the list."
At one public rally, Kozinski said, boycott organizer Charles Evers
said, "If we catch any of you going in any of them racist stores, we're
gonna break your damn neck."
The high court acknowledged that Evers' statements could be
interpreted as inviting violent action, "or at least as intending to
create a fear of violence," but held that the statements were
constitutionally protected because there was insufficient evidence that
Evers had "authorized, ratified, or directly threatened acts of
"While Charles Evers and the defendants in our cases pursued very
different political goals, the two cases have one thing in common:
Political activists used words in an effort to bend opponents to their
will," Kozinski wrote.
"The 1st Amendment protects ACLA's [American Coalition of Life
Activists] statements no less than the statements of the NAACP," said
Kozinski, who was appointed by President Ronald Reagan. Judges Andrew J.
Kleinfeld, an appointee of President George Bush, and William W.
Schwarzer, an appointee of Gerald Ford, joined in the decision--Planned
Parenthood of the Columbia/Willamette Inc. et al. vs. American Coalition
of Life Advocates et al. 99-35320.
Trial Judge Criticized
Kozinski said the trial judge's instructions were ambiguous on the key
point of what constituted a real threat. Judge Jones said that a
statement is a "true threat when a reasonable person making the statement
would foresee that the statement would be interpreted by those to whom it
is communicated as a serious expression of an intent to bodily harm or
If the instruction was taken literally, Kozinski said, the jury could
have found that ACLA's statements were liable although they didn't
directly threaten violence--in violation of the 1st Amendment. Kozinski
said the defendants "come closet to suggesting violence on the Web page,
where the names of murdered doctors are stricken and the wounded ones are
grayed." He said that though these markings "may connote approval," they
"cannot fairly be read as calling for future violence against the several
hundred other doctors, politicians, judges and celebrities on the list;
otherwise any statement approving past violence could automatically be
construed as calling for future violence."
During the trial, the jury heard considerable evidence about violence
against abortion providers, including incidents that did not involve any
of the defendants. Judge Jones said that evidence was context that the
jury could hear to understand the issues.
"Ordinary citizens who served on the jury could see these terrorists
for what they are and the threats for what they are," said the Feminist
Majority's Spillar, who called Wednesday's ruling shocking.
* * *
Excerpts from the opinion of Circuit Judge Alex Kozinski:
"Extreme rhetoric and violent action have marked many political
movements in American history. Patriots intimidated loyalists in both
word and deed as they gathered support for American independence. John
Brown and other abolitionists, convinced that God was on their side,
committed murder in pursuit of their cause. In more modern times, the
labor, antiwar, animal rights and environmental movements all have had
their violent fringes. As a result, much of what was said, even by
nonviolent participants in these movements, acquired a tinge of menace."
"Political speech may not be punished just because it makes it more
likely that someone will be harmed at some unknown time in the future by
an unrelated third party."
© 2001 Los Angeles Times