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In November 1998, Dr. Barnett Slepian was standing in the kitchen of his upstate New York home when a sniper’s bullet ripped through the window and found its mark. Slepian’s assassination capped a string of attacks by abortion opponents, and the violence it symbolized would loom over a controversial suit that got under way less than three months later, even though the defendants had no role in his murder. Almost 2,700 miles away in Portland, Ore., an anonymous eight-person jury was convened in January 1999 under heavy security in a case that would test the limits of the First Amendment — and that will be argued in an appeal before the 9th U.S. Circuit Court of Appeals today. The case could quiet the rancor of the anti-abortion movement or establish new standards for the protection of political speech in the 9th Circuit. The eight men and women returned an astounding judgment — more than $107 million, by far the largest civil judgment ever levied against the anti-abortion movement. The defendants were found to have violated federal racketeering statutes and the Freedom of Access to Clinic Entrances Act of 1994. A dozen anti-abortion activists and the American Coalition of Life Activists and the Advocates for Life Ministries, two anti-abortion groups, are appealing the verdict. They were accused by abortion providers in the Portland area, including Planned Parenthood and Dr. Elizabeth Newhall, of producing de facto “hit lists” of abortion doctors — despite the fact that the two “wanted”-style posters and a Web site in question contained no explicit calls to violence. In what has emerged as a controversy in the case, the trial judge instructed the jury that a lower standard than one of specific intent applied in finding whether defendants’ speech constituted threats to the doctors. And in doing so, U.S. District Judge Robert E. Jones allowed volumes of evidence of violence against the abortion providers, helping to establish a context for the speech, which the jury found crossed the line from political rhetoric and into true threats. “The issues presented in this First Amendment case concern whether or not virtually unlimited context — context that would not be allowed as evidence in any other case — can change the actual words used, and the actual context in which they were delivered, into unprotected speech,” wrote a defense attorney with the Thomas More Center for Law & Justice, Stephen Safranek, in court briefs. The Web site, called the Nuremberg Files, purports to collect information on doctors for future trials on their alleged crimes against humanity. One page lists the names of the doctors, categorized three ways: practicing, injured (with names shaded in grey) or deceased (with those names crossed out). Slepian’s, of course, is crossed out. Nevertheless, the defendants argue, there is nothing threatening about the material. “The three communications at issue do not contain a single threatening word or phrase, nor was any threat specified in the 3,000-word trial record,” wrote American Catholic Lawyers Association attorney Christopher Ferrara in court briefs. However, plaintiffs argue that the district court applied the correct standards for threats and context — that a jury need only find that the defendants should have known the messages would be taken as a threat. The four doctors who joined Planned Parenthood and another clinic in filing the suit reportedly bought bulletproof vests and disguises and were provided with the protection of federal marshals after their names appeared in the material. One even instructed his young son to hide in the bathtub if he heard gunfire. “The truth is that this case is not about the First Amendment,” wrote plaintiffs’ lawyer Maria Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York. “Threats of force have never been deemed protected speech and there exists a uniform and extensive body of law that so holds. The fact that abortion is a controversial subject does not grant its opponents the right to threaten the professionals who provide women with a medical procedure that is their constitutional right.” ACLU WEIGHS IN After the ruling, many First Amendment advocates leaped to the defense of the anti-abortion movement. The American Civil Liberties Union did not. Instead, the ACLU is arguing in an amicus curiae brief that the judgment should be upheld but Jones’ jury instruction should be overturned. “When you talk about the reasonable person standard, that’s simply negligence,” said Michael Simon, a partner at Portland’s Perkins Coie, who wrote the ACLU brief. “We feel that is an inadequate standard — that’s too low.” Nevertheless, Simon doesn’t feel the jury’s decision should be overturned. “They couldn’t have answered some of the questions they did without finding specific intent.” But plaintiffs’ lawyers, naturally, are saying that Jones was right, and that the ACLU is urging the court to follow law that simply doesn’t exist. “What the ACLU seems to be suggesting is that, because the 9th Circuit has never expressly rejected the argument that political threats should be evaluated under a subjective standard, the court now should adopt the subjective standard test for future political threats cases and overrule 30 years of precedent in doing so,” wrote Vullo. “No such justification exists here. The fact that a threat emerges in a political context does not make it any less of a threat and does not call for a special leniency that the 9th Circuit has never afforded.” CONSERVATIVE JUDGES While the jury instruction, the context issue and their relationship to the First Amendment are expected to be fodder for today’s Portland hearing, the defendants have also briefed the court on a host of alleged reversible trial errors. “The jury’s decision, … which imposed a total of $107 million in damages after a trial fraught with prejudicial legal errors, is a poster child for just how fact-finders may inhibit free expression,” Safranek wrote. The panel of judges hearing the appeal consist of Andrew Kleinfeld, Alex Kozinski and Senior U.S. District Judge William Schwarzer, sitting by designation. Kozinski and Kleinfeld are viewed as two of the court’s staunchest conservatives, albeit with libertarian leanings. But for all the alleged trial errors, those may succumb as mere technicalities to the overarching First Amendment issues in Planned Parenthood v. Miller, 99-35320, entrenched as they are in a political debate that stretches from coast to coast. Safranek seized on the issue in his brief. “These ‘posters’ used specific words, were delivered in a highly political context and had a clearly articulated political message,” he wrote. Defense lawyers are also upset that Jones allowed evidence of other incidents of violence by the anti-abortion movement to place the alleged threat in context. Only one named defendant has been convicted of abortion violence, for bombing clinics in the mid-1980s.
US Supreme Court: Year in Review. Free Program. September 11-26.

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