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With a shuffling of normally predictable ideological allegiances, an en banc panel of the 9th U.S. Circuit Court of Appeals appeared poised Tuesday to affirm an earlier decision holding that provocative statements from the anti-abortion movement are protected speech. At the heart of the case are two anti-abortion “Wanted”-style posters and the so-called Nuremberg Files Web site, which listed abortion doctors’ names in a manner which some felt targeted them for violence. The issue is whether, in the context of a sometimes violent movement, speech that does not expressly call for violence is protected by the First Amendment. “Who was going to do what to whom?” asked a seemingly skeptical Judge Stephen Reinhardt, referring to the absence of explicit threats. In 1999, a Portland, Ore., jury ruled against the defendants, including more than a dozen members of the anti-abortion movement and their organization, the American Coalition of Life Activists. The jury awarded the plaintiffs $107 million, a record judgment against the anti-abortion movement. During Tuesday’s arguments before the 11-member panel, there was an undercurrent of concern by a group of judges that should at least make the case close, if not swing toward affirming the jury’s verdict. Their concern, perhaps best expressed by conservative Pamela Rymer, was that absent faulty jury instructions, great deference should be given to the jury. Paul, Weiss, Rifkind, Wharton & Garrison partner Maria Vullo, with a phalanx of abortion doctors behind her, returned time and again to testimony offered in the jury trial. “I think the testimony and the evidence in this case was very critical,” Vullo said after the hearing. According to doctors present at the hearing, they were notified of the posters by law enforcement authorities and immediately placed under armed guard, and considered them de facto hit lists. Speaking to reporters after the hearing, Boulder, Colo., doctor Warren Hern, who said several attempts have been made on his life, compared the defendants to both the mafia and the Taliban. “The mafia has the decency to keep its hit lists private,” Hern said. And later: “The difference between these people that threatened us and the Taliban is about 10,000 miles.” But Judge Andrew Kleinfeld quoted the material in question, wondering where the exact threat was. He noted that the materials contain calls to put the doctors on trial for “crimes against humanity,” but otherwise mention no violence. In fact, he said, they urge nonviolence. That echoed almost word for word American Catholic Lawyers Association’s Christopher Ferrara, who argued the case for the defense. “They threatened no violence, they called for no violence. They said nothing about violence,” Ferrara said. Judge Michael Daly Hawkins brought up the issue of context, which formed the basis of the jury’s verdict. The plaintiffs introduced extensive evidence of the anti-abortion movement’s violent history, which they say includes more than 1,000 incidents of violence since Roe v. Wade. That suggested a causal link to Hawkins. “You don’t have poster, shooting; poster, shooting; poster, shooting?” he asked. Ferrera said it didn’t, and Kleinfeld came to his defense. But if the context of violence has lent the posters a menacing tone, Rymer asked, “Why is it unreasonable for a doctor who is specifically mentioned … to believe that he, too,” was a target? Reinhard’s apparent First Amendment concerns were echoed by another liberal, Judge Marsha Berzon. “But you’re asking us to ignore what was in the documents,” she told Vullo. The deference question was raised by others besides Rymer, including Judges Johnnie Rawlinson and Kim Wardlaw. Others on the panel included Judges Barry Silverman and Diarmuid O’Scannlain, Chief Judge Mary Schroeder, and the author of the three-judge panel decision in Planned Parenthood v. American Coalition of Life Activists, 99-35320, Judge Alex Kozinski. The much-publicized Web site contained a list of abortion providers in which the names of those injured were faded, and those killed were crossed out. The posters, including one called “The Deadly Dozen,” featured names and personal information about abortion doctors. Several U.S. senators and representatives filed a brief with the 9th Circuit. Uniting them was their support of the Freedom of Access to Clinic Entrances (FACE) Act, which enveloped clinics with a congressionally mandated buffer zone into which abortion protesters may not pass. Sen. Charles Schumer, D-N.Y., the author of FACE, signed the brief. “Among the threats that Congress specifically intended to proscribe under FACE were ‘wanted’ posters, like those at issue in this case, which had preceded the killing of at least one abortion provider at the time FACE was enacted,” the brief read. The case also attracted a rare brief from the American Medical Association. The jury’s award came just months after one of the most infamous attacks — the assassination of Dr. Bernard Slepian while he stood in his upstate New York home. Coincidentally, Slepian’s alleged killer was arrested in France the day after the three-judge panel released its opinion. In the end, one man’s silence may speak volumes about the direction of the case. Normally vocal, Judge Kozinski did not ask a question, nor utter a word, during the hour-long hearing.

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