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In March, the 9th U.S. Circuit Court of Appeals decided that those who threaten to murder doctors and clinicians providing legal abortion services are immune from liability so long as their threats don’t specifically state that they themselves, or their agents, would carry them out. Abortion rights advocates have denounced the decision and urged the 9th Circuit to reconsider the case en banc. But the startling decision in Planned Parenthood v. American Coalition of Life Activists, O1 C.D.O.S. 2473, is not limited to threats against those providing abortions. It applies to all kinds of threats and terrorism. The free speech clause of the First Amendment does not protect “advocacy directed to inciting or producing imminent lawless action” that “is likely to incite or produce such action;” or “preparing a group for violent action and steeling it to such action.” Where such conduct occurs in the context of constitutionally protected activity, however, 1982′s NAACP v. Claiborne Hardware, 458 U.S. 886, states “precision of regulation is demanded.” In the Freedom of Access to Clinic Entrances Act, Congress provided for the recovery of compensatory and punitive damages, attorneys’ fees and injunctive relief against any person or entity who “by force or threat of force … intentionally injures, intimidates or interferes with any person … providing reproductive health service.” That, combined with the conduct of the defendants taken from the trial court’s findings and described below, would seem to be precision enough. ACLA was formed for the precise reason that its organizers would not commit to the April 1994 renunciation of violence by the national pro-life movement. Seven individual defendants constituted its president, national and regional directors. When Dr. David Gunn was murdered in March 1993, defendant Michael Bray drafted the petition declaring the murder justified and called for the acquittal of the murderer. Seven defendants signed the petition. Another taunted a doctor at the clinic about the murder. When Dr. George Tiller was shot in both arms in August 1993, Bray drafted a petition calling for acquittal of his assailant. Three other defendants signed it, and another supported the assailant on national television. When Dr. John Britton and Jim Barrett were murdered and June Britton wounded in July 1994, six defendants signed a petition calling for the acquittal of the murderer. Bray had previously been convicted of conspiracy to bomb seven abortion clinics and published a book entitled “A Time to Kill.” He displayed a sign reading “execute murderers, abortionists,” wrote of the “fear of the sniper” and spoke of shooting abortion providers. Defendant Charles McMillan stated publicly that Paul Hill, the killer of Britton and Barrett, had “fired the first shots in this war;” that it was justifiable to kill anyone who is involved in the provision of abortion or supports abortion rights including “a pregnant abortion provider” and “the President and justices of the Supreme Court who support abortions.” When Dr. Garson Romalis was shot at by a sniper in November 1994, a defendant described sniping as a superb tactic because the perpetrators escaped. After John Salvi murdered two and wounded five clinicians in Massachusetts in December 1994, he fired shots into a clinic in Norfolk, Va. The president of ACLA was outside the clinic at the time. Such was the background of defendants when they published their Deadly Dozen and Crist posters, and their so-called Nuremberg Files between January 1995 and 1996. The Deadly Dozen poster identified four plaintiff doctors and their addresses, declared them guilty of crimes against humanity and offered $5,000 for information leading to their arrest, conviction and revocation of their licenses. The Crist poster showed the photograph and address of plaintiff Dr. Robert Crist. The Nuremberg files, which were posted on the Internet, provided personal information about the four plaintiff doctors, nine other doctors, officers, employees and owners of the plaintiff clinics. The “files” also listed the names of the doctors and clinicians killed (names stricken through) and wounded (shaded). Immediately after the publication of the Deadly Dozen poster, the U.S. marshals offered plaintiffs and their families 24-hour protection. After publication of the Crist poster, police warned Dr. Crist. After the publication of the Nuremberg files, the FBI advised plaintiffs to take precautions. The plaintiff doctors wore bulletproof vests and drew the curtains of their windows. The 9th Circuit did not dispute that plaintiffs were frightened by the defendants’ publications. Indeed, it observed that defendants had targeted plaintiffs for terrorist attack by singling them out from thousands, calling them to the “unfriendly attention of violent anti-abortion activists,” and “making it easier for any would-be terrorists to carry out their gruesome mission.” The trial judge, who had made all the findings of fact referred to above, concluded that defendants independently and as co-conspirators had prepared, published, and disseminated the posters and files with the malicious and illegal intent to communicate true threats to kill, assault or do bodily harm to plaintiffs with the specific intent to intimidate them from engaging in legal medical practices and procedures. The judge also found that their conduct was not justifiable as free speech. A jury had held ACLA, its coordinate ALM (Advocates for Life Ministries) and 12 individuals liable under FACE for $107 million in compensatory and punitive damages. The trial court, after entering 455 findings of fact and conclusions of law, issued a permanent injunction against defendants. The 9th Circuit reversed the judgment. Referring to the conduct of Charles Evers in Clairborne, Judge Alex Kozinski wrote for the court, “if Charles Evers’ speech is protected by the First Amendment, then ACLA speech is also protected.” Clairborne involved threats against black patrons to intimidate them from patronizing white-owned stores unless segregation practices in Port Gibson, Miss., stopped. Judgment against the NAACP was reversed because it had not “authorized — either actually or apparently — or ratified unlawful conduct.” It had not authorized or considered taking any official action with respect to the boycott, did not supply any financial aid and was not involved in it in any way. Judgment against Charles Evers was also reversed. He had made speeches stating that boycott breakers would be disciplined and that the sheriff could not protect them at night. The trial judge also determined that he had said “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The Supreme Court noted that there was no record of the last statement, that no acts of violence had occurred for three years before Evers’ speeches and none had occurred thereafter. The 3-year-old violence had involved firing shots, heaving a brick through a window, trampling a flower bed, stealing a bottle of whiskey, slashing tires, beating up one man and “spanking” another. No one had been killed or wounded. Clairborne did not compel the result reached in Planned Parenthood. The 9th Circuit reached its result by divorcing the challenged speech from its context and giving it a construction contrary to the manifest intent of defendants. The panel recognized that a threat “may be inferred from the content in which the statements are made” and that “context can make it clear that it is the speaker himself who means to carry out the threat,” but held in the case before it that it could not use the context of defendants’ posters and files to fill out their meaning. It reached that conclusion by disregarding the evidence of defendants’ intent, and the context of their speech. It observed, with disregard of the facts of the case before it, that “context after all, is not of the speaker’s making,” and that “a person who does not intend to threaten harm, nor say anything at all suggesting violence, would risk speaking out in the midst of a highly charged environment.” Judge Kozinski answered the question whether “context can supply the violent message that language alone leaves out” by interpreting the Deadly Dozen and Crist posters, and the Nuremberg Files, as referring only to the hope that in the future the laws would be changed and stated that “none of the statements made by ACLA mention violence at all.” With all due respect, the Deadly Dozen poster was not a contingent message and ACLA’s pictures of dead doctors with their names crossed out and posters identifying other doctors as targets for terrorists to “carry out their gruesome mission” not only mention violence, they advocated and fomented murder, as intended by ACLA, ALM and the individual defendants. Judge Kozinski’s “indirect threat” rule, under which context is disregarded unless the defendant threatens that he, she, or his or her agent will carry out the threat, was not compelled by Clairborne. On the contrary, Clairborne used the context of Evers’ remarks to exculpate him. Without the disputed “we’re gonna break your damn neck” phrase, Evers’ remarks would have been indirect threats according to Judge Kozinski, and, if he relied on that disputed remark for his indirect threat theory, he was mistaken. Under his own analysis such a threat would have been direct. As the jury and the trial judge determined, the context of defendants’ posters and files in Planned Parenthood showed that defendants threatened, encouraged, promoted and facilitated the murder of doctors and clinicians and threatened plaintiffs with a similar fate. Such conduct violated Section 248 of FACE and should not have been protected as free speech. Judge Kozinski’s “indirect threat” immunity doctrine would elevate euphemisms above reality, providing a convenient but erroneous First Amendment cover for domestic and foreign terrorists to have their “gruesome missions” carried out by their followers, whose deeds they applaud while denying they are agents. Such threats of murder are not licensed by the First Amendment, and Planned Parenthood ought to be reversed. Allan Littman is a retired partner of Pillsbury Madison & Sutro (now Pillsbury Winthrop) and a member of the American College of Trial Lawyers.

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