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