Many judges say they think abortion foes' speech protected

By The Associated Press

12.12.01

Printer-friendly page

PASADENA, Calif. — Eleven judges of a federal appeals court heard oral arguments in a case testing the free-speech rights of anti-abortion activists versus the rights of doctors to be free from violence and torment.

While the court did not indicate how it would rule in Planned Parenthood v. American Coalition of Life Activists, several judges of the 9th U.S. Circuit Court of Appeals were clearly on the side of anti-abortion protesters yesterday. The abortion foes were sued in federal court in Portland, Ore., by abortion providers who claimed their protests amounted to bodily threats.

A jury hit the activists with a $109 million verdict, finding that a Web site the activists supplied information to and posters they produced listing doctors' personal dossiers "were true threats to kill." (Some news media previously had reported the verdict as $107 million.)

Names of three doctors who were killed appeared crossed out on either the posters or "Nuremberg Files" Web site. Some doctors listed on the Web site or on the posters testified in 1999 that they lived in constant fear, donning disguises, bulletproof vests and telling their children to crouch in the bathtub if they heard gunfire.

But many judges said yesterday that they thought the speech was protected, and if a majority of judges rule that way, the verdict will be wiped out.

Several of the judges said yesterday they did not see any illegal conduct from the defendants, who see themselves as political protesters collecting data on doctors in hopes of one day putting them on trial just as Nazi war criminals were at Nuremberg.

Judge Andrew Kleinfeld, one of the court's conservative voices, told Maria Vullo, the attorney representing the abortion doctors, "I don't get it."

Judge Stephen Reinhardt, one of the San Francisco-based court's most liberal judges, said that just because doctors were being tormented and several killed or injured over the years doesn't mean the activists cannot speak against the doctors.

"Can anyone with the protection of the Constitution make any anti-abortion statements?" he asked. "Everybody knows there's been a lot of violence against abortion providers."

Yesterday's arguments were the second time the case has came before the nation's largest federal appeals court. In March, a three-judge panel of the 9th Circuit threw out the verdict against the anti-abortion activists, ruling that the First Amendment protects the posters and Web site that publishes the "Nuremberg Files."

But in October, the full court set aside the panel's decision and agreed to review it with 11 judges. The are no deadlines as to when the court will rule.

Lawyers for the plaintiffs argued that, even though the abortion foes in the case did not commit violence against the doctors, the defendants have a history of violence within the anti-abortion community, and that their speech should be viewed in that context.

Judge Marsha Berzon wondered aloud whether the anti-abortion activists should have First Amendment free-speech rights curtailed "because they all condoned violence in the past?"

Some of the dozen defendants include 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 is 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.

On the Nuremberg Files Web site, Internet surfers can click an icon "to see the list of baby butcherers and a few of the people who have been killed." The site, which is still online and being run by Neal Horsley of Georgia, notes whether the doctors are "working," "wounded" or a "fatality."

But other appeals court judges appeared sympathetic to the doctors.

Judge Pamela Rymer said doctors may rightfully live in fear because they may be the "target" of the anti-abortion movement.

Christopher Ferrara, a lawyer for the defendants, said the doctors have a right to live without violence, not fear.

After the hearing, abortion doctor Warren Hern of Boulder, Colo., said in an interview that gunfire was directed at his office after his name appeared on one of the posters, which he said was akin to a Mafia-style hit list.

"The Mafia has the decency to keep its hit list private," Hern said.

He said the FBI notified him that he was on the list. Still, federal authorities took no action against the defendants for the conduct alleged in this case.

The doctors said the activists' behavior amounted to extortion to get them to stop performing abortions, and violated federal laws designed to stem violence at abortion clinics.

Update

Abortion foes' wanted posters, Web site are 'true threats'
Federal appeals court rules 6-5 in favor of doctors, clinics in Nuremberg Files case, also orders lower court to reduce $108.5 million punitive damages award.  05.17.02

Previous

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