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| [1] | UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| [2] | No. 99-35320,, No. 99-35325,, No. 99-35327,, No. 99-35331,, No. 99-35333,,
No. 99-35405 |
| [3] | 2001.C09.0000188 <http://www.versuslaw.com> |
| [4] | March 28, 2001 |
| [5] | PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST
WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH
NEWHALL, M.D.; JAMES NEWHALL, M.D., PLAINTIFFS-APPELLEES, AND KAREN SWEIGERT, M.D., PLAINTIFF, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; MICHAEL B. DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; CHARLES WYSONG, DEFENDANTS, AND MONICA MIGLIORINO MILLER; DONALD TRESHMAN, DEFENDANTS-APPELLANTS. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., PLAINTIFFS-APPELLEES, AND KAREN SWEIGERT, M.D., PLAINTIFF, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; JOSEPH L. FOREMAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, DEFENDANTS, AND MICHAEL DODDS; CHARLES ROY MCMILLAN; BRUCE EVAN MURCH, DEFENDANTS-APPELLANTS. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., PLAINTIFFS-APPELLEES, AND KAREN SWEIGERT, M.D., PLAINTIFF, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; MICHAEL DODDS; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN, DEFENDANTS, AND TIMOTHY PAUL DRESTE; JOSEPH L. FOREMAN; CHARLES WYSONG, DEFENDANTS-APPELLANTS. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., PLAINTIFFS-APPELLEES, AND KAREN SWEIGERT, M.D., PLAINTIFF, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; CATHERINE RAMEY; DAWN MARIE STOVER, DEFENDANTS-APPELLANTS, AND TIMOTHY PAUL DRESTE; MICHAEL DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; STEPHEN P. MEARS; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; DONALD TRESHMAN; CHARLES WYSONG, DEFENDANTS. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D., PLAINTIFFS-APPELLEES, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID A. CRANE; TIMOTHY PAUL DRESTE; MICHAEL B. DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, DEFENDANTS. PAUL DEPARRIE, MOVANT-APPELLANT. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC.; PORTLAND FEMINIST WOMEN'S HEALTH CENTER; ROBERT CRIST, M.D.; WARREN M. HERN, M.D.; ELIZABETH NEWHALL, M.D.; JAMES NEWHALL, M.D.; KAREN SWEIGERT, M.D., INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES, v. AMERICAN COALITION OF LIFE ACTIVISTS; ADVOCATES FOR LIFE MINISTRIES; MICHAEL BRAY; ANDREW BURNETT; DAVID CRANE; TIMOTHY PAUL DRESTE; MICHAEL DODDS; JOSEPH L. FOREMAN; CHARLES ROY MCMILLAN; MONICA MIGLIORINO MILLER; BRUCE EVAN MURCH; CATHERINE RAMEY; DAWN MARIE STOVER; DONALD TRESHMAN; CHARLES WYSONG, DEFENDANTS-APPELLANTS. |
| [6] | D.C. No. CV-95-01671-REJ; D.C. No. CV-95-01671-REJ; D.C. No. CV-95-01671-REJ;
D.C. No. CV-95-01671-REJ; D.C. No. CV-95-01671-REJ; D.C. No. CV-95-01671-REJ;
Appeal from the United States District Court for the District of Oregon
Robert E. Jones, District Judge, Presiding |
| [7] | Counsel Christopher A. Ferrara, American Catholic Lawyers Association
Inc., Ramsey, New Jersey, argued the cause for all Appellants, and submitted
a brief on behalf of appellant Donald J. Treshman. Maria T. Vullo, Paul,
Weiss, Rifkind, Wharton & Garrison, New York, New York, argued the cause
for Appellees. Stephen J. Safranek, Thomas More Center for Law & Justice,
Ann Arbor, Michigan, for Appellants American Coalition of Life Activists,
Advocates for Life Ministries, Andrew Burnett, David Crane, Catherine Ramey,
Michael Bray and Dawn Stover. Robert M. O'Neil, for amicus curiae Thomas
Jefferson Center for the Protection of Free Expression, Charlottesville,
Virginia, in support of reversal. Paul deParrie, Portland, Oregon, amicus
curiae, in support of reversal. Michael H. Simon, Perkins Coie Llp, Portland,
Oregon, for amicus curiae Aclu Foundation of Oregon, Inc., in support of
affirmance. Susan M. Popik, Chapman, Popik & White, San Francisco, California,
for amici curiae Feminist Majority Foundation, Center for Reproductive Law
and Policy, National Abortion and Reproductive Rights Action League and
Naral Foundation, National Abortion Federation, National Coalition of Abortion
Providers, National Organization for Women Foundation, Now Legal Defense
and Education Fund, National Women's Health Foundation, Northwest Women's
Law Center, Physicians for Reproductive Choice and Health, and Women's Law
Project, in support of affirmance. Richard Blumenthal, Attorney General
of Connecticut, for amici curiae Connecticut, Arizona, California, Colorado,
Hawaii, Kansas, Montana, Nevada, New York, Oklahoma, Oregon and Washington,
in support of affirmance. Erwin Chemerinsky, University of Southern California
Law School, Los Angeles, California, for amici curiae AntiDefamation League,
the American Jewish Committee, Hadassah, the Women's Zionist Organization
of America, Inc., in support of affirmance. |
| [8] | Before: Alex Kozinski and Andrew J. Kleinfeld, Circuit Judges, and William
W Schwarzer, District Judge.*fn2 |
| [9] | The opinion of the court was delivered by: Kozinski, Circuit Judge |
| [10] | FOR PUBLICATION |
| [11] | OPINION |
| [12] | Argued September 12, 2000 |
| [13] | Submitted September 15, 2000*fn1 |
| [14] | OPINION |
| [15] | 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
Amendment. |
| [16] | I. |
| [17] | 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 perform abortions. In large print, the poster declared
them guilty of "crimes against humanity" and offered $5,000 for
information 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. |
| [18] | Later that year, in front of the St. Louis federal courthouse, ACLA presented
a second poster, this time targeting Dr. Robert 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 successfully persuades Crist to turn from his child
killing through activities within ACLA guidelines" (which prohibit
violence). |
| [19] | 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 supporters. 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.*fn3
The website listed the names of doctors and others who provide or support
abortion and called on visitors to supply additional names.*fn4
The website marked the names of those already victimized by anti-abortion
terrorists, striking through the names of those who had been murdered 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. |
| [20] | 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. |
| [21] | 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, including the Freedom of Access to Clinic Entrances Act
of 1994 (FACE), 18 U.S.C. S 248.*fn5
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.*fn6
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.*fn7
The district court then issued an injunction barring defendants from making
or distributing the posters, the webpage or anything similar. ACLA and the
other defendants appeal, claiming that their statements are protected by
the First Amendment.*fn8 |
| [22] | II. |
| [23] | A. |
| [24] | 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. |
| [25] | The Supreme Court confronted this problem in NAACP v. Claiborne Hardware
Co., 458 U.S. 886 (1982). There, a group of white-owned businesses sued
the NAACP and others who organized a civil rights boycott against the stores.
To give the boycott teeth, activists wearing black hats stood outside the
stores and wrote down the names of black patrons. 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, Charles Evers, a boycott organizer, threatened that boycott
breakers would be "disciplined" and warned that the sheriff could
not protect them at night. See id. at 902. At another rally, Evers stated,
"If we catch any of you going in any of them racist stores, we're gonna
break your damn neck." See id. The Mississippi courts held the boycott
organizers liable based on Evers's statements and the activities of the
black-hatted activists. |
| [26] | The Supreme Court acknowledged that Evers's statements could be interpreted
as inviting violent retaliation, "or at least as intending to create
a fear of violence whether or not improper discipline was specifically intended."
Id. at 927 (emphasis added). Nevertheless, it held that the statements were
protected because there was insufficient evidence that Evers had "authorized,
ratified, or directly threatened acts of violence." Id. at 929. Nor
was publication of the boycott violators' names a sufficient basis for liability,
even though collecting and publishing the names contributed to the atmosphere
of intimidation that had harmed plaintiffs. See id. at 925-26. While Charles
Evers and the defendants in our case pursued very different political goals,
the two cases have one key thing in common: Political activists used words
in an effort to bend opponents to their will. |
| [27] | [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 threatened " 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. |
| [28] | [2] 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. In Brandenburg v. Ohio, 395 U.S. 444 (1969) (per
curiam), the Supreme Court held that the First Amendment protects speech
that encourages others to commit violence, unless the speech is capable
of "producing imminent lawless action. " Id. at 447. It doesn't
matter if the speech makes future violence more likely; advocating "illegal
action at some indefinite future time" is protected. Hess v. Indiana
, 414 U.S. 105, 108 (1973) (per curiam). If the First Amendment protects
speech advocating violence, then it must also protect speech that does not
advocate violence but still makes it more likely. Unless ACLA threatened
that its members would themselves assault the doctors, the First Amendment
protects its speech.*fn9 |
| [29] | B. |
| [30] | ACLA's speech no doubt frightened the doctors, but the constitutional
question turns on the source of their fear.*fn10
The doctors might have understood the statements as veiled threats that
ACLA's members (or others working with ACLA) would inflict bodily harm on
the doctors unless they stopped performing abortions. So interpreted, the
statements are unprotected by the First Amendment, regardless of whether
the activists had the means or intent to carry out the threats. See United
States v. Orozco-Santillan, 903 F.2d 1262, 1265 n.3 (9th Cir. 1990). So
long as they should have foreseen that the doctors would take the threats
seriously, the speech is unlawful. See id. at 1265.*fn11 |
| [31] | But the statements might also have scared the doctors in another way.
By singling out the plaintiffs from among the thousands across the country
who are involved in delivering abortion services, ACLA called them to the
unfriendly attention of violent anti-abortion activists. And by publishing
the doctors' addresses, ACLA made it easier for any would-be terrorists
to carry out their gruesome mission. *fn12
From the doctors' point of view, such speech may be just as frightening
as a direct threat, but it remains protected under Claiborne Hardware. |
| [32] | The jury would be entitled to hold defendants liable if it understood
the statements as expressing their intention to assault the doctors but
not if it understood the statements as merely encouraging or making it more
likely that others would do so. But the jury instruction was ambiguous on
this critical point. The instruction provided 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 assault." Jury
Instruction No. 10, at 14. This instruction was consistent with our previous
threat cases. See Lovell v. Powell Unified Sch. Dist., 90 F.3d 367, 372
(9th Cir. 1996). But in those previous cases, there was no need to emphasize
that threats must be direct because the speakers themselves made it perfectly
clear that they would be the ones to carry out the threats.*fn13
Under the instruction in this case, the jury could have found the anti-abortion
activists liable based on the fact that, by publishing the doctors' names,
the activists made it more likely that the doctors would be harmed by third
parties. |
| [33] | This is not a fanciful possibility. The record contains much evidence
that the doctors were frightened, at least in part, because they anticipated
that their unwelcome notoriety could expose them to physical attacks from
third parties unrelated to defendants. For example, plaintiff Dr. Elizabeth
Newhall testified, "I feel like my risk comes from being identified
as a target. And . . . all the John Salvis in the world know who I am, and
that's my concern."*fn14
Testimony of Elizabeth Newhall, Planned Parenthood of the Columbia/Willamette,
Inc. v. American Coalition of Life Activists , No. CV 9501671 -JO, at 302
(D. Or. Jan. 8, 1999); see also id. at 290 ("[U]p until January of
`95, I felt relatively diluted by the-you know, in the pool of providers
of abortion services. I didn't feel particularly visible to the people who
were--you know, to the John Salvis of the world, you know. I sort of felt
one of a big, big group."). Likewise, Dr. Warren Martin Hern, another
plaintiff, testified that when he heard he was on the list, "I was
terrified . . . . [I]t's hard to describe the feeling that --that you are
on a list of people to--who have been brought to public attention in this
way. I felt that this was a--a list of doctors to be killed." Testimony
of Warren Martin Hern, Planned Parenthood, No. CV 95-01671-JO, at 625 (Jan.
11, 1999). |
| [34] | Were the instruction taken literally, the jury could have concluded that
ACLA's statements contained "a serious expression of intent to harm,"
not because they authorized or directly threatened violence, but because
they put the doctors in harm's way. However, the First Amendment does not
permit the imposition of liability on that basis. |
| [35] | C. |
| [36] | Although the jury instruction was ambiguous, we need not decide whether
the ambiguity was so great as to require us to set aside the verdict. Even
if the jury drew only the permissible inference, we must evaluate the record
for ourselves to ensure that the judgment did not trespass on the defendants'
First Amendment rights. Specifically, we must determine whether ACLA's statements
could reasonably be construed as saying that ACLA (or its agents) would
physically harm doctors who did not stop performing abortions. Because the
district court rejected the First Amendment claim, we conduct a de novo
review of both the law and the relevant facts. See Lovell, 90 F.3d at 370.
The question therefore is not whether the facts found below are supported
by the record but whether we, looking at the record with fresh eyes, make
the same findings. If we disagree with the district court, our findings
prevail. See Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1252 (9th
Cir. 1997). |
| [37] | We start by noting that none of the statements ACLA is accused of making
mention violence at all. While pungent, even highly offensive, ACLA's statements
carefully avoid threatening the doctors with harm "in the sense that
there are no `quotable quotes' calling for violence against the targeted
providers." Planned Parenthood of the Columbia/Willamette, Inc. v.
American Coalition of Life Activists , 23 F. Supp. 2d 1182, 1186 (D. Or.
1998). Instead, ACLA offers rewards to those who take nonviolent measures
against the doctors, such as seeking the revocation of their medical licenses
and protesting their activities. One poster talks about persuading Crist
to "turn from his child killing," but stops short of suggesting
any violence or other criminal conduct against him. The website seeks to
gather information about abortion supporters and encourages others to do
the same. ACLA also speaks of future "perfectly legal" Nuremberg-like
trials, to be held at a time when public opinion has turned in its favor. |
| [38] | We recognize that the words actually used are not dispositive, because
a threat may be inferred from the context in which the statements are made.*fn15
However, there are at least two kinds of ambiguity that context can resolve.
The first deals with statements that call for violence on their face, but
are unclear as to who is to commit the violent acts--the speaker or a third
party. All cases of which we are aware fall into this category: They hold
that, where the speaker expressly mentions future violence, context can
make it clear that it is the speaker himself who means to carry out the
threat. See note 13 supra. |
| [39] | A more difficult problem arises when the statements, like the ones here,
not only fail to threaten violence by the defendants, but fail to mention
future violence at all. *fn16
Can context supply the violent message that language alone leaves out? While
no case answers this question, we note important theoretical objections
to stretching context so far. Context, after all, is often not of the speaker's
making. For example, the district court in this case admitted evidence of
numerous acts of violence surrounding the abortion controversy, almost none
of them committed by the defendants or anyone connected with them.*fn17
In the jury's eyes, then, defendants' statements were infused with a violent
meaning, at least in part, because of the actions of others. If this were
a permissible inference, it could have a highly chilling effect on public
debate on any cause where somebody, somewhere has committed a violent act
in connection with that cause. A party who does not intend to threaten harm,
nor say anything at all suggesting violence, would risk liability by speaking
out in the midst of a highly charged environment. |
| [40] | In considering whether context could import a violent meaning to ACLA's
non-violent statements, we deem it highly significant that all the statements
were made in the context of public discourse, not in direct personal communications.
Although the First Amendment does not protect all forms of public speech,
such as statements inciting violence or an imminent panic, the public nature
of the speech bears heavily upon whether it could be interpreted as a threat.*fn18
As we held in McCalden v. California Library Ass'n, 955 F.2d 1214 (9th Cir.
1992), "public speeches advocating violence" are given substantially
more leeway under the First Amendment than "privately communicated
threats." Id. at 1222; see also Orozco-Santillan, 903 F.2d at 1265
("Although a threat must be `distinguished from what is constitutionally
protected speech,' this is not a case involving statements with a political
message." (quoting Watts v. United States, 394 U.S. 705, 707 (1969)
(per curiam)). |
| [41] | There are two reasons for this distinction: First, what may be hyperbole
in a public speech may be understood (and intended) as a threat if communicated
directly to the person threatened, whether face-to-face, by telephone or
by letter. In targeting the recipient personally, the speaker leaves no
doubt that he is sending the recipient a message of some sort. In contrast,
typical political statements at rallies or through the media are far more
diffuse in their focus because they are generally intended, at least in
part, to shore up political support for the speaker's position. |
| [42] | [3] Second, and more importantly, speech made through the normal channels
of group communication, and concerning matters of public policy, is given
the maximum level of protection by the Free Speech Clause because it lies
at the core of the First Amendment. See Claiborne Hardware , 458 U.S. at
926-27 ("Since respondents would impose liability on the basis of a
public address--which predominantly contained highly charged political rhetoric
lying at the core of the First Amendment--we approach this suggested basis
of liability with extreme care."). With respect to such speech, we
must defer to the well-recognized principle that political statements are
inherently prone to exaggeration and hyperbole. See Watts, 394 U.S. at 708
("The language of the political arena. . . is often vituperative, abusive,
and inexact. " (citation omitted )). If political discourse is to rally
public opinion and challenge conventional thinking, it cannot be subdued.
Nor may we saddle political speakers with implications their words do not
literally convey but are later "discovered " by judges and juries
with the benefit of hindsight and by reference to facts over which the speaker
has no control. |
| [43] | Our guiding light, once again, 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 statements made at a public rally, rather than
directly to his targets. See id. at 928-29. |
| [44] | [4] If Charles Evers's speech was protected by the First Amendment, then
ACLA's speech is also protected. *fn19
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 explicitly
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.*fn20 |
| [45] | VACATED and REMANDED with instructions that the district court dissolve
the injunction and enter judgment for the defendants on all counts. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [46] | *fn1 Following oral
argument, we deferred submission and encouraged the parties to settle. We
asked the parties to notify us within 48 hours if negotiations were progressing
and more time was needed. Having heard nothing by close of business on September
14, 2000, we ordered the case submitted. |
| [47] | *fn2 The Honorable William W Schwarzer, United States Senior District
Judge for the Northern District of California, sitting by designation. |
| [48] | *fn3 Plaintiffs did
not sue Horsley, but the district court concluded that Horsley was an agent
of ACLA and other defendants as well as a co conspirator. See Planned Parenthood
of the Columbia/Willamette, Inc. v. American Coalition of Life Activists,
41 F. Supp. 2d 1130, 1152 (D. Or. 1999). In addition, the court found that
the defendants came up with the idea for the webpage and sent Horsley much
of its content. See id. at 115253. |
| [49] | *fn4 In addition
to plaintiffs, the Nuremberg Files website identifies dozens of clinic employees
and public figures as abortion supporters (and future war crimes defendants),
including six current members of the Supreme Court, Bill Clinton, Al Gore,
Janet Reno, Jack Kevorkian, C. Everett Koop, Mary Tyler Moore, Whoopi Goldberg
and, for reasons unknown, Retired Justice Byron White. See Roe, 410 U.S.
at 221 (White, J., dissenting). |
| [50] | *fn5 Specifically,
they alleged violations of the Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U.S.C. S 1962, the Oregon Racketeer Influenced and Corrupt
Organizations Act, Or. Rev. Stat. S 166.720, and the state tort of intentional
infliction of emotional distress. The state law claims were abandoned before
trial, and the district court submitted to the jury only the FACE and RICO
claims. |
| [51] | *fn6 We call statements
"true threats" to distinguish them from statements that are threatening
on their face but could only be understood, under the circumstances, as
hyperbole or jokes. For example, in Watts v. United States, 394 U.S. 705
(1969) (per curiam), the Supreme Court held that the defendant's statement
that "[i]f they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.," was not a true threat. Id. at 706, 708
(internal quotation marks and citation omitted). It was instead "political
hyperbole . . . a kind of very crude offensive method of stating a political
opposition to the President." Id. at 708 (internal quotation marks
omitted). |
| [52] | *fn7 The jury held
that defendants Michael Bray and Donald Treshman were not liable under RICO.
Although the district court had previously found Bray in default because
of his refusal to comply with discovery orders, the court later set aside
the default and entered judgment against Bray on the FACE claim based on
the verdict. |
| [53] | *fn8 In No. 99-35333,
Paul deParrie, a non-party, moves to intervene in the appeal because he
was enjoined as an employee and agent of one of the defendant organizations,
the Advocates for Life Ministries (ALM). See Fed. R. Civ. P. 65(d). DeParrie
relies on Keith v. Volpe, 118 F.3d 1386, 1391 (9th Cir. 1997), but that
case dealt with a situation where a non-party sought to appeal a judgment
that would not otherwise have been appealed by the parties. The question
then was whether someone who is not a party might take the legally operative
step of filing a notice of appeal. Here, all of the losing parties have
appealed and deParrie's proposed participation is in the nature of an amicus.
We therefore construe deParrie's motion as one to participate as an amicus
curiae and grant it. In No. 99-35320 and No. 99-35405, a former defendant,
Monica Migliorino Miller, filed a notice of appeal of the injunction with
which the district court ordered she be served. At plaintiffs' request,
the district court had dismissed Miller from the suit before trial and so
she was not herself enjoined. The injunction applies to her only insofar
as she is an agent or employee of defendants, and so she has no independent
standing to appeal. Her notice of appeal is therefore ordered stricken. |
| [54] | *fn9 If such statements
were unprotected threats, newspapers might face liability for publishing
stories that increased the likelihood that readers would harm particular
persons, for example by disclosing the identity of mobsters in hiding or
convicted child molesters. This would permit the imposition of liability
for the mere publication of news, dramatically undercutting the freedom
constitutionally accorded to the press. Cf. New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964) (recognizing the need to protect our "profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open"). |
| [55] | *fn10 It is not
unlawful to say things that frighten other people. A doctor who discloses
an adverse prognosis often instills fear in the patient and his family;
predicting a future event--"That bus is about to hit your child!"--can
cause the listener intense apprehension. Yet such statements are not (and
cannot be made) unlawful. Nor does it matter that the speaker makes the
statement for the very purpose of causing fear. Let's say your malicious
neighbor sees your house is burning. He calls you at work and announces:
"Your house is on fire!" This may scare you--it may have no other
purpose--yet it is lawful because it is speech and does not fall within
one of the narrow categories the Supreme Court has held is unprotected under
the First Amendment. The matter is more complicated where the speech is
intended to intimidate the listener into changing his conduct. Blackmail
and extortion--the threat that the speaker will say or do something unpleasant
unless you take, or refrain from taking, certain actions--are not constitutionally
protected. See, e.g., Watts, 394 U.S. 705. On the other hand, the statement,
"If you smoke cigarettes you will die of lung cancer," is protected,
even though its purpose is to scare you into quitting smoking. So is, "If
you mess around with Tom's girlfriend, he'll break your legs," unless
the speaker is sent by Tom. The difference is this: In the case of blackmail
and extortion, you are given to understand that, unless you do what's asked
of you, the speaker himself (or someone acting on his behalf) will bring
about that which you abhor; in the other examples, the speaker has no control
over the adverse consequences and merely predicts what is likely to happen
if you act (or refrain from acting) in a particular way. |
| [56] | *fn11 Our case
law has not been entirely consistent as to whether a speaker may be penalized
for negligently uttering a threat or whether he must have specifically intended
to threaten. Compare Orozco-Santillan, 903 F.2d at 1265 ("Whether a
particular statement may properly be considered to be a threat is governed
by an objective standard--whether a reasonable person would foresee that
the statement would be interpreted by those to whom the maker communicates
the statement as a serious expression of intent to harm or assault."),
with United States v. Gilbert (Gilbert I), 813 F.2d 1523, 1529 (9th Cir.
1987) ("[Gilbert] correctly identifies the element of intent specified
in section 3631 as the determinative factor separating protected expression
from unprotected criminal behavior . . . . [T]he statute' s requirement
of intent to intimidate serves to insulate the statute from unconstitutional
application to protected speech. " (citation omitted)). While we believe
that Gilbert I states the correct rule, the result here is the same under
either standard. We therefore presume that the less speechprotective standard
of Orozco-Santillan applies. |
| [57] | *fn12 We need not
decide here whether the First Amendment would protect defendants from a
suit for invasion of privacy, because plaintiffs do not claim damages based
solely on the publication of private facts, namely their addresses and telephone
numbers. Cf. Anderson v. Fisher Broadcasting Cos., 712 P.2d 803, 807 (Or.
1986) (recognizing a tort for invasion of privacy when the tortfeasor has
the specific intent to cause plaintiff severe mental or emotional distress
and such conduct exceeds "the farthest reach of socially tolerable
behavior"). |
| [58] | *fn13 See, e.g.,
Lovell, 90 F.3d at 369 (student told administrator, "I'm going to shoot
you"); Melugin v. Hames, 38 F.3d 1478, 1481 (9th Cir. 1994) (civil
defendant sent letter to judge threatening to kill him); OrozcoSantillan,
903 F.2d at 1264 (arrestee threatened INS agent at his arrest and during
subsequent phone calls); United States v. Gilbert (Gilbert II), 884 F.2d
454, 455-56 (9th Cir. 1989) (white supremacist mailed a letter to the head
of an inter-racial adoption agency, condemning her occupation and enclosing
posters suggesting he would commit violence against interracial couples
and ethnic minorities); United States v. Mitchell, 812 F.2d 1250, 1252 (9th
Cir. 1987) (defendant told Secret Service agents he was going to kill them
and the President); Roy v. United States, 416 F.2d 874, 875 (9th Cir. 1969)
(marine called the White House and said he was going to kill the President).
The instruction continues to be good law in cases where the source of the
threatened violence is not an issue. |
| [59] | *fn14 In December
1994, John Salvi killed two clinic workers and wounded five others in attacks
on two clinics in Brookline, Massachusetts; Salvi later fired shots at a
clinic in Norfolk, Virginia before he was apprehended. Salvi is not a defendant
in this case. |
| [60] | *fn15 See, e.g.,
Orozco-Santillan, 903 F.2d at 1265 ("Alleged threats should be considered
in light of their entire factual context, including the surrounding events
and reaction of the listeners."); Gilbert II, 884 F.2d at 457 ("The
fact that a threat is subtle does not make it less of a threat.").
Other courts have also recognized that ambiguous language may still constitute
a threat. See United States v. Dinwiddie , 76 F.3d 913, 925 (8th Cir. 1996)
(holding that an anti-abortion activist, who had previously used force against
clinic personnel, threatened Dr. Crist when she screamed at him on numerous
occasions that he could be killed if he kept on committing abortions); United
States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994) (finding a threat where defendant
sent letters to a federal appellate judge suggesting he would use force
against the panel unless it reversed its decision); United States v. Khorrami,
895 F.2d 1186, 1193 (7th Cir. 1990) (holding that defendant made a threat
by repeatedly making anti-Semitic phone calls to a Jewish organization and
sending it letters calling for the deaths of Israeli leaders). |
| [61] | *fn16 The defendants
come closest to suggesting violence on the webpage, where the names of the
murdered doctors are stricken and the wounded ones are grayed. We read the
striketype and graying as the equivalent of marking "killed" or
"wounded" next to the names. This clearly reports past violent
acts and may connote approval. But it 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. |
| [62] | *fn17 Defendants
objected to admission of much of this evidence and press their objections
on appeal. Given our ruling on the merits, we need not pass on this issue.
Nothing we say, therefore, should be construed as approving the district
court's evidentiary rulings. |
| [63] | *fn18 The doctors
do not claim that ACLA's speech amounted to incitement. To rise to incitement,
the speech must be capable of "producing imminent lawless action."
Brandenburg, 395 U.S. at 447. Here, the statements were made at public rallies,
far away from the doctors, and before an audience that included members
of the press. ACLA offered rewards to those who stopped the doctors at "some
indefinite future time," Hess, 414 U.S. at 108, and the ambiguous message
was hardly what one would say to incite others to immediately break the
law. Finally, the statements were not in fact followed by acts of violence.
See Claiborne Hardware, 458 U.S. at 928 ("[H]ad [the speech] been followed
by acts of violence, a substantial question would be presented" as
to incitement, but "[w]hen such appeals do not incite lawless action,
they must be regarded as protected speech."). |
| [64] | *fn19 We cannot
distinguish this case from Claiborne Hardware on the ground that the speech
is aimed at impeding abortions, which are constitutionally protected against
government interference. The speech in Claiborne 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. |
| [65] | *fn20 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. |
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