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In a decision that invokes the American Revolution, John Brown and the violent fringes of the environmental movement, the 9th U.S. Circuit Court of Appeals on Wednesday reversed a multimillion dollar jury verdict against anti-abortion activists who were alleged to have threatened doctors. Victorious attorneys for the American Coalition of Life Activists, which published “wanted” posters with the doctors’ names and addresses, said the decision encases free speech rights in a new layer of legal protection. But lawyers for abortion providers said it leaves their clients, who perceived the posters as a threat and had taken to wearing bulletproof vests, defenseless. “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,” Judge Alex Kozinski wrote. “Unless ACLA threatened that its members would themselves assault the doctors, the First Amendment protects its speech.” Kozinski was joined by Judge Andrew Kleinfeld and Senior Judge William Schwarzer, sitting by designation. ACLA appealed to the 9th Circuit after an anonymous eight-member jury in Portland, Ore., awarded the doctors $107 million and ruled that the posters and a companion Web site, called the Nuremberg Files, constituted a true threat. The judge ordered the Web site shut down. Neither the posters nor the Web site explicitly threatened the doctors. But the trial judge admitted volumes of “contextual” evidence about the climate of violence against doctors. “The court, I think, lays it out precisely right. You can’t control the environment,” said Stephen Safranek, who argued the case on behalf of a majority of the 11 defendants. “This isn’t even in my view a close case.” The trial got underway less than three months after Dr. Bernard Slepian was assassinated in his upstate New York home by a sniper. It was convened under heavy security and jurors’ identities were kept secret. One of the defendants had set fire to 10 clinics on the East Coast. Others had signed the so-called “justifiable homicide” petition in support of Paul Hill, now on death row in Florida for killing an abortion provider. All of this evidence was presented to the jury. Violence against clinics has abated in recent years, which many attribute to the Freedom of Access to Clinic Entrances Act, but supporters of abortion rights were worried that the decision might trigger a new round of violence. “We’re shocked and dismayed by it and we’re worried that it might embolden the extremists,” said Eleanor Smeal, president of the Arlington, Va.-based Feminist Majority Foundation. “We see this decision as a weakening of the FACE Act. “This trial was based on the record of violence,” Smeal said. The record mattered little to the judges, who chose to pass on challenges to the district court’s evidentiary rulings and instead focused on the First Amendment. The court held that the messages from the ACLA did not contain specific threats and that the climate of violence could not change the meaning of the message into a true threat. “Can context supply the violent message that the language alone leaves out? While no case answers this question, we note important theoretical objections to stretching context so far. Context, after all, is not of the speaker’s making,” Kozinski wrote in Planned Parenthood v. ACLA, 01 C.D.O.S. 2473. “If this were a permissible inference, it would 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.” The case turned on the Supreme Court’s decision in NAACP v. Claiborne Hardware, 458 U.S. 886, where a boycott of white-owned businesses turned violent, and in that climate Charles Evers told black patrons — although not directly — that if they were caught entering the stores, their necks would be broken. “If Charles Evers’ speech was protected by the First Amendment, the ACLA’s speech is also protected,” Kozinski concluded. Lawyers who argued the case on behalf of the doctors, clinics and abortion rights advocates expressed a range of emotions at the decision. Shock. Dismay. Depression. One said she was leaving her office and going home. “We are obviously disappointed with the panel’s decision and firmly believe that it is wrong,” said Maria Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, who did her talking through a statement. “We plan to appeal to the full 9th Circuit court and to the Supreme Court if necessary, and to continue in our efforts to protect our clients from intimidation and violence.” The decision also runs counter to the wishes of all but three states in the confines of the 9th Circuit. Six states filed an amicus curiae brief, along with several other states, in support of affirmance. Susan Popik of San Francisco’s Chapman, Popik & White said the message on the ACLA’s posters and the Nuremberg Files Web site — which listed the names of abortion doctors and distinguished them by putting the injured in gray text and crossing out the names of the dead — was clear. “They didn’t contain necessarily threatening words, but the posters, with the doctors’ names and addresses, are saying, ‘We know who you are, and where you are,’” said Popik, who authored an amicus brief on behalf of the Feminist Majority Foundation and several other organizations. Safranek disputed the notion. “There’s nothing that says, ‘Let’s get them, let’s go shoot them,’ ” said Safranek, who now teaches at Ava Maria School of Law in Ann Arbor, Mich. “ It says very clearly they’re wanted for crimes against humanity.” Between 1994 and 1998, six people were killed and attempts were made on the lives of 13 others. Slepian was the last to die. After the trial, most of the defendants were forced to file for bankruptcy, Safranek said. The ACLA has since disbanded. There have been no killings since the jury returned the $107 million verdict.

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