Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The First Amendment respects no ideology. Those it defends today it offends tomorrow. The same constitutional guarantee that permits the NAACP to conduct store boycotts also enables the Ku Klux Klan to spread its hateful message. Those who invoke it for themselves but deny it for others disregard a basic tenet of our Madisonian democracy — only the people, and not the government, may decide which ideas are acceptable. Recently, the 9th U.S. Circuit Court of Appeals, in a 6-5 en banc decision, let it be known that it fears certain ideas; that it does not trust the people with such ideas; and that therefore those who give voice to such ideas must be silenced and punished by overwhelming damage awards. The case, decided May 16, is Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition for Life Activists. The ruling is short-sighted, though it has long-range implications. The facts are not really in dispute in this case. The plaintiffs are four physicians who perform abortions and two health clinics and a women’s health center that also provide abortion services. The defendants are two anti-abortion organizations and various individuals. The anti-abortion expression in dispute concerns Old West “Wanted”-style posters and an anti-abortion Web site (called the Nuremberg Files), all of which contained the names and addresses of abortion providers. Three people (doctors who performed abortions and whose names had appeared on the posters and Web site) were murdered by individuals not parties to the case. The plaintiffs brought suit under the Freedom of Access to Clinics Entrances Act (FACE), which provides a cause of action against anyone who by “threat of force … intentionally … intimidates … any person because that person is or has been … providing reproductive health services” (18 U.S.C. � 248(a)(1) and (c)(1)(A)). In 1999, a Portland, Ore., jury awarded $107.9 million in punitive damages, and the federal district judge in the case enjoined the further display of the wanted posters and certain anti-abortion messages displayed on the Nuremberg Files site. Subsequently, in an opinion by Judge Alex Kozinski, a three-judge 9th Circuit panel reversed on the grounds that the judgment violated the First and 14th Amendments. Last month, the 9th Circuit, sitting en banc, reinstated the trial court judgment. (It also vacated the punitive damages award and remanded the matter to the trial court.) The en banc majority opinion was written by Judge Pamela Ann Rymer. There were three dissents, one authored by Judge Kozinski, another by Judge Stephen Reinhardt, and a third by Judge Marsha Berzon. Essentially, the 118 pages of conflicting opinions quarrel over the question of whether the facts in the case constituted actual “threats” under FACE, when interpreting that statute consistently with the First Amendment. Despite their differences, the majority and the dissenters agree that none of the posters contained “any language that is overtly threatening” (as the majority opinion states); nor did the creators of the wanted posters indicate that they intended any violence. Instead, the dispute was whether, when viewed in their entire context, the posters would be interpreted by a reasonable person as a serious expression of intent to inflict bodily harm by the defendants. In the majority’s view, the critical factor is neither what the protesters intended by the wanted posters, nor even the actual words on the posters. According to the majority, “differences in caption or words are immaterial because the language itself is not what is threatening.” Rather, the majority held that the “poster pattern” — i.e., the wanted poster format that preceded murder by third parties — transformed the posters into something of a symbolic threat. The opinion even suggests that the same posters might not have constituted threats at an earlier point, before the murders. CIVIL RIGHTS SPEECH For the dissenters, particularly Judge Kozinski, the majority fails adequately to explain why its test would not apply equally to Charles Evers’ inflammatory pro-civil rights rhetoric that the Supreme Court held was protected speech in NAACP v. Claiborne Hardware Co. (1982). There, Evers publicly warned that black residents of Claiborne County “who traded with white merchants would be answerable to him” and that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” Organizers collected the names of those who violated the boycott and publicized them in the local newspaper and elsewhere. In fact, violence was committed against some who refused to join the boycott. Nevertheless, the Court held that neither Evers nor the NAACP could be enjoined or held liable for speaking. The Court explained that “[s]ince respondents would impose liability on the basis of a public address — which predominately contained highly charged political rhetoric lying at the core of the First Amendment — we approach this suggested basis for liability with extreme care.” And it concluded that “[s]peech does not lose its protected character … simply because it may embarrass others or coerces them into action.” Judge Berzon’s dissent points out that the speech at issue in Planned Parenthood is, “on its face, clearly, indubitably, and quintessentially the kind of communication that is fully protected by the First Amendment,” and “to perceive a threat, one must disregard the actual language used and rely on context to negate the ordinary meaning of the communication.” Although all the judges agree that the context in which speech occurs is a significant factor, Judge Berzon expresses concern about the dampening effect on free debate where courts rely “only on surrounding context” in order “to overcome the literal import of the words spoken.” While the rhetoric of the anti-abortion protesters in Planned Parenthood was often harsh and their tactics sometimes repugnant, both the actual words used and the surrounding context indicate that the protesters were engaged in political speech. Many of the posters were presented at political rallies and offered to protest the rule of Roe v. Wade. One poster was presented at a “rally held on the steps of the St. Louis federal courthouse, where the Dred Scott decision was handed down, in order” — in the words of Judge Kozinski’s dissent — “to draw a parallel between ‘blacks being declared property and unborn children being denied their right to live.’ ” Many — including the authors of this article — may disagree with the message, but it is nonetheless indisputably political. THREAT OR INCITEMENT? The Planned Parenthood majority opinion is troublesome for a variety of reasons. For one thing, it blurs the line between threats (which the Court addressed in Watts v. United States (1969)) and incitement (addressed in Brandenburg v. Ohio (1969)), both of which are unprotected by the First Amendment. The former warns of unequivocal, unconditional violence or other specific harm against a particular person or persons. Such threatened action must also be within the control of the speaker. The latter, by contrast, involves situations concerning expression likely to incite or produce imminent lawless action in others. Thus for liability to flow from the actions of third parties, the Brandenburg incitement test, which requires a specific call to violent action and the imminent likelihood of producing such action, must be satisfied. Basically, the Planned Parenthood opinion conflates threat analysis with incitement analysis in a way that dispenses with the key requirements of both. For the majority, a threat need not include any indication that the speakers themselves will engage in some kind of criminal behavior. It thereby invites speculative and open-ended contextual investigation that trades the plain meaning of words for their purported “coded meaning.” This approach creates a weird kind of “guilt by association” for speech: Words are not “guilty” in themselves, but become so because of some relationship to events beyond the speaker’s expressed intent or control. The focus of such analysis is on the possible criminal behavior of third parties, not the speakers, and without the safeguards of the incitement test — that the speech in question must be intended to produce imminent lawless action, and that it is likely to have that effect. Accordingly, the majority opinion denigrates Claiborne Hardware. The majority’s attempt to distinguish Claiborne by pointing out that it did not arise under a “threats” statute is small comfort when the constitutional rule laid down by the Supreme Court would support adopting such a law. The Planned Parenthood holding allows for legal culpability whenever statements “reasonably” generate fear in others, notwithstanding the fact that much vigorous political speech often does precisely that. In its zeal to silence what it deems to be the abhorrent expression of anti-abortion activists, the majority opinion chills the future of expression of all speech — abhorrent or not. Ronald K.L. Collins is a scholar at the First Amendment Center in Arlington, Va., and the co-author of “The Trials of Lenny Bruce” (Sourcebooks, 2002). Robert Corn-Revere is a partner in the D.C. office of Hogan & Hartson and practices First Amendment and communications law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.