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Planned Parenthood v. American Coalition of Activists Advocates For Life

A panel of the 9th Circuit held that the First Amendment protected an anti-abortionist activist website that intimidated abortion providers. The panel vacated a $107 million jury verdict against the website operators. In October 2001, the Court agreed to hear the case en banc.

The 9th Circuit sitting en banc reversed this decision in Planned Parenthood of Columbia v. ACLA 290 F.3d 1058 (9th Cir. May 16, 2002).

Planned Parenthood v. American Coalition of Activists Advocates For Life
9th Circuit Court of Appeals
Filed March 28, 2001

Before: Alex Kozinski and Andrew J. Kleinfeld,
Circuit Judges, and William W Schwarzer, District Judge.**

Opinion by Judge Kozinski


KOZINSKI, Circuit Judge:

Anti-abortion activists intimidated abortion providers by publishing their names and addresses. A jury awarded more than $100 million in actual and punitive damages against the activists, and the district court enjoined their speech. We consider whether such speech is protected by the First Amend- ment.

During a 1995 meeting called to mark the anniversary of Roe v. Wade, 410 U.S. 113 (1973), the American Coalition of Life Activists (ACLA) unveiled a poster listing the names and addresses of the "Deadly Dozen," a group of doctors who per- form abortions. In large print, the poster declared them guilty of "crimes against humanity" and offered $5,000 for informa- tion leading to the "arrest, conviction and revocation of license to practice medicine." The poster was later published in an affiliated magazine, Life Advocate, and distributed at ACLA events.

Later that year, in front of the St. Louis federal courthouse, ACLA presented a second poster, this time targeting Dr. Rob- ert Crist. The poster accused Crist of crimes against humanity and various acts of medical malpractice, including a botched abortion that caused the death of a woman. Like the Deadly Dozen List, the poster included Crist's home and work addresses, and in addition, featured his photograph. The poster offered $500 to "any ACLA organization that success- fully persuades Crist to turn from his child killing through activities within ACLA guidelines" (which prohibit violence).

In January 1996, at its next Roe anniversary event, ACLA unveiled a series of dossiers it had compiled on doctors, clinic employees, politicians, judges and other abortion rights sup- porters. ACLA dubbed these the "Nuremberg Files, " and announced that it had collected the pictures, addresses and other information in the files so that Nuremberg-like war crimes trials could be conducted in "perfectly legal courts once the tide of this nation's opinion turns against the wanton slaughter of God's children." ACLA sent hard copies of the files to Neal Horsley, an anti-abortion activist, who posted the information on a website.1 The website listed the names of doctors and others who provide or support abortion and called on visitors to supply additional names.2 The website marked the names of those already victimized by anti-abortion terror- ists, striking through the names of those who had been mur- dered and graying out the names of the wounded. Although ACLA's name originally appeared on the website, Horsley removed it after the initiation of this lawsuit.

Neither the posters nor the website contained any explicit threats against the doctors. But the doctors knew that similar posters prepared by others had preceded clinic violence in the past. By publishing the names and addresses, ACLA robbed the doctors of their anonymity and gave violent anti-abortion activists the information to find them. The doctors responded to this unwelcome attention by donning bulletproof vests, drawing the curtains on the windows of their homes and accepting the protection of U.S. Marshals.

Some of the doctors went on the offensive. Along with two Portland-based health centers, the doctors sued ACLA, twelve activists and an affiliated organization, alleging that their threatening statements violated state and federal law, includ- ing the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. S 248.3 Because the doctors claimed they were harmed by defendants' speech, the district court instructed the jury that defendants could only be liable if their statements were "true threats" and therefore unprotected by the First Amendment.4 In a special verdict, the jury found that all the statements were true threats and awarded the doctors $107 million in actual and punitive damages.5 The district court then issued an injunction barring defendants from making or distributing the posters, the webpage or anything simi- lar. ACLA and the other defendants appeal, claiming that their statements are protected by the First Amendment….

[1] The First Amendment protects ACLA's statements no less than the statements of the NAACP. Defendants can only be held liable if they "authorized, ratified, or directly threat- ened" violence. 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 First Amendment….

Our guiding light…is Claiborne Hardware. There, Charles Evers expressly threatened violence when he warned the boycott violators that "we're gonna break your damn neck[s]," and that the sheriff could not protect them from retribution. See 458 U.S. at 902. Evers made these statements at a time when there had already been violence against the boycott breakers. Evers did not himself identify specific individuals to be disciplined, but his associates had gathered and published the names, and there's no doubt that the black community in the small Mississippi county where the boycott was taking place knew whom Evers was talking about. The Supreme Court held that, despite his express call for violence, and the context of actual violence, Evers's statements were protected, because they were quintessentially political state- ments made at a public rally, rather than directly to his tar- gets. See id. at 928-29. [4] If Charles Evers's speech was protected by the First Amendment, then ACLA's speech is also protected. 17 Like Evers, ACLA did not communicate privately with its targets; the statements were made in public fora. And, while ACLA named its targets, it said nothing about planning to harm them; indeed, it did not even call on others to do so. This stands in contrast to the words of Charles Evers, who explic- itly warned his targets that they would suffer broken necks and other physical harm. Under the standard of Claiborne Hardware, the jury's verdict cannot stand.18

17 We cannot distinguish this case from Claiborne Hardware on the ground that the speech is aimed at impeding abortions, which are constitu- tionally protected against government interference. The speech in Clai- borne Hardware likewise sought to prevent lawful conduct--black citizens' patronage of white stores--that the government could not ban without violating the Equal Protection Clause. The Constitution protects rights against government interference; it doesn't justify the suppression of private speech that tries to deter people from exercising those rights.

18 For precisely the same reasons, the district court could not enjoin the defendants based upon such protected statements. We must therefore vacate the injunction as well

VACATED and REMANDED with instructions that the district court dissolve the injunction and enter judgment for the defendants on all counts.

School of Journalism and Communication