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Full appeals court to take up 'Nuremberg Files' case

By The Associated Press

10.04.01

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Editor's note: Earlier reports of a judgment of $107 million against anti-abortion activists were later corrected to $109 million. That change has been made in this and other stories.

SAN FRANCISCO — A federal appeals court said yesterday it would reconsider its March ruling that threw out a $107 million verdict against anti-abortion activists.

The 9th U.S. Circuit Court of Appeals, without comment, said the court would hear Planned Parenthood v. American Coalition of Life Activists again with 11 judges. In March, a three-judge panel said that a Web site and wanted posters branding abortion doctors "baby butchers" are protected by the First Amendment.

The three-judge panel, in overturning a Portland, Ore., jury's verdict, said the anti-abortion activists could be held liable only if the material authorized or directly threatened violence.

Two years ago, the Portland jury ordered a dozen abortion foes to pay $109 million in damages to Planned Parenthood and four doctors, who sued under federal racketeering laws and the 1994 federal law that makes it illegal to incite violence against abortion doctors.

Planned Parenthood and the doctors were portrayed in the Old West-style wanted posters as "baby butchers," and a Web site called the Nuremberg Files listed the names and addresses of abortion providers and declared them guilty of crimes against humanity.

Doctors on the list testified that they lived in constant fear, used disguises, bodyguards and bulletproof vests, and instructed their children to crouch in the bathtub if they heard gunfire.

Maria Vullo, Planned Parenthood's attorney, said the "previous decision was wrong as a matter of law."

The anti-abortion activists argued that their posters and Web site were protected under the First Amendment because they were merely a list of doctors and clinics — not a threat.

The appellate court's decision yesterday, based on a request by Planned Parenthood and about three dozen members of Congress to rehear the case, nullifies the earlier ruling's precedent until the case is reheard. The court did not announce when it would rehear the case.

In March, the three-judge panel ruled that the activists' posters and Web site were protected speech.

"If defendants threatened to commit violent acts, by working alone or with others, then their (works) could properly support the verdict," Circuit Judge Alex Kozinski wrote at the time. "But if their (works) merely encouraged unrelated terrorists, then their words are protected by the First Amendment."

The 9th Circuit's move to rehear controversial cases with 11 judges — known as an "en banc panel" — is becoming increasingly commonplace. Last week it reheard a three-judge panel's decision that nullified Reagan-era drug sentencing statutes and earlier reheard the case of whether an FBI sharpshooter could be tried on manslaughter charges for allegedly killing Randy Weaver's wife during the Ruby Ridge standoff.

During the activists' trial, U.S. District Judge Robert Jones instructed the jury to consider the history of violence in the anti-abortion movement, including three doctors killed after their names appeared on the lists.

One was Dr. Barnett Slepian, who was killed by a sniper in 1998 at his home near Buffalo, N.Y. Slepian's name was crossed out on the Nuremberg Files Web site later that same day.

The defendants maintained they were political protesters collecting data on doctors in hopes of one day putting them on trial just as Nazi war criminals were at Nuremberg. The judge called the Web site a "blatant and illegal communication of true threats to kill."

Among the defendants was Michael Bray of Bowie, Md., author of a book that justifies killing doctors to stop abortions. Bray went to prison from 1985 to 1989 for his role in arson attacks and bombings of seven clinics.

Another defendant was Cathy Ramey of Portland, an editor at Life Advocate magazine and author of In Defense of Others, which defends people who refuse to condemn the killing of abortion providers.

Defendant Don Treshman of Baltimore said he has been arrested about 200 times for blockading abortion clinics and was ordered by the jury to pay $8 million as his share of the verdict.

Christopher Ferrara, the lawyer who argued their case, was not available for comment.

Update

Federal appeals court hosts abortion-rights, free-speech showdown
Full 9th Circuit to hear arguments as it reconsiders panel decision backing Nuremberg Files Web site.  12.11.01

Previous

Federal appeals panel: Web site targeting abortion doctors is protected speech
Judges throw out $109 million jury verdict, saying activists who created 'wanted' posters could be held liable only if material authorized or directly threatened violence.  03.29.01

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