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The 9th U.S. Circuit Court of Appeals decided Wednesday to rehear en banc a case that could outline the limits of provocative speech under the First Amendment. The case was brought by abortion providers who were depicted by anti-abortion activists on “Wanted”-style posters and a “Nuremberg Files” Web site that accused them of crimes against humanity. The key issue is whether context can be used to judge whether such speech crosses the line from provocative into a threat. In light of a climate of violence over the abortion issue, the abortion providers charge the Web site and posters are an incitement not protected by the Constitution. A unanimous three-judge panel disagreed in March. In demanding rehearing, the plaintiffs were joined by several congressional representatives and the American Medical Association, who filed amici curiae briefs urging reversal. “I’m obviously very pleased on behalf of my clients with regard to the 9th Circuit’s decision,” said Maria Vullo, a partner at New York’s Paul, Weiss, Rifkin, Wharton & Garrison who represents Planned Parenthood and the other plaintiffs. In 1998, a jury in Portland, Ore. awarded the doctors and clinicians $107 million, the largest-ever judgment against the anti-abortion movement. But to reach its decision, the jury considered not just the speech itself, which contained no direct threats against the doctors, but the context in which the speech was made. That, wrote Judge Alex Kozinski for the 9th Circuit panel, should not have been done. “Can context supply the violent message that the language alone leaves out?” Kozinski asked. “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 a highly charged environment.” Kozinski was joined by Judge Andrew Kleinfeld and U.S. District Senior Judge William Schwarzer, sitting by designation. Politically, the decision was unpopular. Attorneys general in six of the nine states in the 9th Circuit had urged the court to uphold the verdict. Senators decried the decision, and dozens of politicians, led by Sen. Charles Schumer, D-N.Y., filed a brief with the court urging it to reconsider. Abortion rights activists called the decision a weakening of the Freedom of Access to Clinic Entrances Act, which Schumer wrote. Supporters of the doctors were quick to point out that several of the defendants, members of the now-defunct American Coalition of Life Activists, had been closely tied to violence. One was convicted of conspiring to bomb several clinics, and several others signed a petition supporting Florida death row inmate Paul Hill’s murder of clinic workers as justifiable homicide. Also at issue in the case was a Web site called the Nuremberg Files, which listed abortion doctors’ names, distinguishing each one by whether the doctor was still practicing, had been injured or had been killed. Vullo argues that settled law is on her side. In much the same way that shouting “Fire!” is fine in an open field but not a crowded theater, she hopes that the epidemic of violent attacks on doctors and clinics — the context in which the speech was spoken — won’t be brushed aside by the 11 judges sitting en banc. “The law is that you consider the context of the speech made, and you don’t look at the speech in isolation,” Vullo said. Several of the defendants filed for bankruptcy protection after the $107 million judgment. Vullo said she has pursued them into the bankruptcy courts, and all of the bankruptcy judges to decide the issue have refused to discharge the debt. Lawyers for the activists say Planned Parenthood v. American Coalition of Life Activists, 99-35320, is a simple First Amendment case. “This isn’t even in my view a close case,” said Stephen Safranek, a professor at Ave Maria School of Law in Ann Arbor, Mich., when the decision was announced in March. The plaintiffs in the case had taken to wearing bulletproof vests and some spoke with their children about what to do in case of gunfire. The 1998 trial got underway less than three months after Dr. Barnett Slepian, an abortion doctor, was assassinated while in his upstate New York home. Ironically, a suspect was arrested in France for Slepian’s killing within hours after the release of the 9th Circuit’s decision. Although anti-abortion violence has ebbed considerably since 1998, Vullo said she did not think jurors would decide the case “any differently today than they did then.” No date has been set for the hearing.

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