ABORTION FOES LOSE RULING ON FREE SPEECH
U.S. SUPREME COURT EXPECTED TO TAKE UP ONLINE-THREAT CASE
By Howard Mintz
Mercury News
A sharply divided federal appeals court on Thursday refused to extend free
speech protections to the most incendiary rhetoric of the abortion debate,
concluding that an Oregon jury was right to punish anti-abortion activists for
threatening doctors on grisly Web sites and Wild West-style ``Wanted'' posters.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruling amounts to
an invitation for the U.S. Supreme Court to wade into a volatile legal conflict
over how far abortion foes can go in their campaign against abortion clinics and
doctors.
Addressing a case that has attracted nationwide attention, the 9th Circuit
restored much of a 1999 verdict against abortion foes who were accused of
inciting violence against abortion doctors, notably on a Web site known as the
``Nuremberg Files.'' While the court ordered a fresh look at whether the $107
million verdict was excessive, it found that the First Amendment was no defense
for the anti-abortion groups.
For three years, the case has zigzagged through the appeals court. Last year a
three-judge 9th Circuit panel set aside the Oregon jury verdict and held that the
online and printed material was protected political speech. But the 9th Circuit
agreed to rehear the case, and on Thursday, in a 6-5 ruling, it overturned last
year's decision.
With so much division in the 9th Circuit, legal experts predict the U.S. Supreme
Court is likely to take up a case that breaks new ground in defining the
boundaries of threatening speech.
In upholding the verdict, the 9th Circuit said the ``Wanted'' posters and some of
the online material did not deserve First Amendment protection because it was
meant to inspire fear, particularly because some targeted doctors were attacked.
``Violence is not a protected value,'' Judge Pamela Rymer wrote for the
majority. ``To the doctor who performs abortions, these posters meant, `You're
wanted or you're guilty; you'll be shot and killed.' ''
Appeal planned
Lawyers for the 14 defendants in the case vowed to appeal to the Supreme
Court. Abortion foes -- who say they were making political statements, not
threats -- decried the decision for stifling harsh public criticism of abortion.
``If this ruling stands, it will be easy precedent to outlaw any speech that goes
contrary to abortionists,'' said Andrew Burnett, a Portland, Ore., man who was
hit with an $8 million judgment as part of the verdict.
However, abortion providers and a variety of groups backing them lauded the
decision, saying it protects clinics and doctors from living in fear. Bay Area
Planned Parenthood organizations, which have watched the case closely, said
the ruling is particularly important because threats continue on a regular basis.
``This kind of craziness is not OK,'' said Dian Harrison, president of the San
Francisco-Golden Gate chapter, which covers San Mateo, San Francisco and
Alameda Counties. ``When you start threatening people, you cross the line.''
Added Linda Williams, head of the Santa Clara chapter: ``When free speech is
explicitly designed to incite violence or the fear of violence, it is really something
quite different.''
The Portland jury slammed anti-abortion activists for their campaign, which
included leaflets equating abortion providers with war criminals. The Nuremberg
Web site listed hundreds of clinics and doctors and noted the names of doctors
whom anti-abortion activists had injured or killed.
A judge also issued an unprecedented injunction barring the abortion foes from
continuing to distribute anti-abortion material. Ironically, the Nuremberg site,
including a list of abortion doctors labeled ``baby butchers,'' remains online,
outside the reach of the injunction because the Web site operator was not a
defendant in the case.
Harrison, the San Francisco Planned Parenthood president, said the site
continues to have repercussions. One San Mateo County clinic doctor listed on
the site received threats in January, she said.
The Oregon jury ordered abortion foes to pay a coalition of doctors and two
Portland-area Planned Parenthood clinics that said they feared they would be
killed because such material was distributed at a time of heightened attacks on
doctors and clinics across the country. Those included high-profile murders of
two clinic workers in Massachusetts in 1994 and a doctor in Buffalo, N.Y., in
1998.
The lawsuit was brought under the 1994 Freedom of Access to Clinic Entrances
Act, which made it illegal to incite violence against abortion doctors and their
patients. While the law has been used against people accused of bombing clinics
or attacking doctors, the Portland case marked the first time it relied on a theory
of inciting violence through printed and online material.
Members of Congress and a number of states, including California, sided with
Planned Parenthood in the case, arguing that the clinic law would be gutted if it
could not be applied to such threats. In the appeal, however, the anti-abortion
coalition argued that the material was never intended to be threatening and was
a form of ``provocative'' political protest.
`Scorecard' a problem
The 9th Circuit disagreed, calling much of the material ``a serious expression of
intent to inflict bodily harm.'' The court said the ``Most Wanted'' posters were
not protected political statements because some of the people identified
eventually were attacked, supporting the abortion providers' argument that the
posters caused real fear of harm. The Nuremberg site is largely protected
speech, the court added, except for a ``scorecard'' of killed and injured doctors.
The five dissenting judges were harshly critical of the decision, particularly Judge
Alex Kozinski, who wrote last year's decision overturning the verdict. He called
the decision ``a vain effort to justify a crushing monetary judgment and a strict
injunction against speech protected by the First Amendment.''
Added Judge Marsha Berzon: ``This case is proof positive that hard cases make
bad law.''
IDEOLOGICAL MIX
The 9th Circuit was deeply divided in the Planned Parenthood case, and not
along strictly ideological lines. Here was the breakdown of judges' votes in the
6-5 decision:
The majority: Judge Pamela Rymer, a Bush appointee and one of the court's
most conservative members, wrote the decision, joined by Chief Judge Mary
Schroeder, a liberal Carter appointee, and four Clinton appointees, Michael
Daly Hawkins, Barry Silverman, Kim Wardlaw and Johnnie Rawlinson.
The dissenters: Judge Alex Kozinski, a conservative Reagan appointee, wrote
the main dissent, joined by fellow conservatives Andrew Kleinfeld and Diarmuid
O'Scannlain. But Kozinski was joined by two of the court's most liberal judges,
Stephen Reinhardt and Marsha Berzon, both Clinton appointees who wrote
separate dissents.
bayarea.com |
