Recently, the 9th U.S. Circuit Court of Appeals, in a 6-5 en banc decision, let it be known that it fears certain ideas; that it does not trust the people with such ideas; and that therefore those who give voice to such ideas must be silenced and punished by overwhelming damage awards. The case, decided May 16, is Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition for Life Activists. The ruling is short-sighted, though it has long-range implications.
The facts are not really in dispute in this case. The plaintiffs are four physicians who perform abortions and two health clinics and a women’s health center that also provide abortion services. The defendants are two anti-abortion organizations and various individuals. The anti-abortion expression in dispute concerns “Old West” style wanted posters and an anti-abortion Web site (called the Nuremberg Files), all of which contained the names and addresses of abortion providers. Three people (doctors who performed abortions and whose names had appeared on the posters and Web site) were murdered by individuals not parties to the case. The plaintiffs brought suit under the Freedom of Access to Clinics Entrances Act (FACE), which provides a cause of action against anyone who by “threat of force . . . intentionally . . . intimidates . . . any person because that person is or has been . . . providing reproductive health services” (§ 248(a)(1) and (c)(1)(A)).