Free Speech - Abortion and Reproduction Law

Anti-abortion WWW Site is Protected Speech - Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, --- F.3d ----, 2001 WL 293260 (9th Cir. 2001)

This is the infamous Nuremberg Files case. The Nuremberg Files is a WWW site run by the American Coalition of Life Activists, an antiabortion group. The site contains personal information about physicians and other health care providers involved in providing abortion services. While the American Coalition of Life Activists denies any violent motives, and does not directly advocate violence on the WWW site, it does urge readers to persuade the providers to change their ways and no longer participate in abortion services. The physicians, fearing violent reprisals, sued under RICO (Racketeer Influences Corrupt Organizations Act), which provides for treble damages and attorney's fees. They alleged that the American Coalition of Life Activists were engaged in a criminal conspiracy to incite violence and intimidate providers of abortion services. A jury found for the plaintiffs' and awarded more than $100 million in real and punitive damages. Defendants appealed, asserting they were engaged in 1st amendment protected speech.

The appeals court began its analysis with a discussion of the importance of political speech and that it is the most protected speech under the constitution. The court then identified the core problem in the jury's verdict - did the jury find for the plaintiffs because the jury believed the plaintiffs were frightened, or did the jury find that the defendants advocated violent action so as to remove them from 1st Amendment protection? There was very credible evidence that the plaintiffs were legitimately frightened:

"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.'"

The court was concerned that the jury instructions given by the trial judge indicated to the jury that they could find for the plaintiffs if they believed that the defendants had intentionally frightened them - sort of an intentional infliction of emotional distress case. Rather than reaching this issue, the court looked at whether the verdict improperly interfered with the defendants' constitutional rights. The court's reasoning was driven by NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), which held that publishing the names of persons engaged in desegregation efforts, and decrying them in public rallies, was protected speech, even if third partied committed violent acts against the named persons. Thus:

"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."

"If Charles Evers's speech was protected by the First Amendment, then ACLA's speech is also protected. 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."

The court vacated and remanded with instructions that the district court dissolve the injunction and enter judgment for the defendants on all counts.