Happy Friday and welcome to the 6th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. This week we don’t actually have a Supreme Court case, as the High Court refused to take up the appeal on this one. It is still part of Professor Balkin’s syllabus and as we look at the details you will see why it is an important First Amendment case. If you are interested in the previous installments of this series you can find them below:

First Amendment Friday 1 – Abrams v US
First Amendment Friday 2 – Gitlow v New York
First Amendment Friday 3 – Whitney v California
First Amendment Friday 4 – Brandenbrug V Ohio
First Amendment Friday 5 – Bridges V California

"Originally posted at Squarestate.net"
The Facts

In 1995, on the anniversary of Roe v. Wade, an anti-reproductive freedom group called the American Coalition of Life Activists produced a poster of 12 doctors who perform abortions. This poster was a styled as a “Wanted” poster with a $5,000 dollar reward for anyone who convinced them to stop performing abortions. This poster included the doctor’s addresses and the addresses of their practices.

The next year the ACLA went further producing an expanded list to include politicians and other pro-reproductive freedom activist as well as more doctors. This was called their “Nuremburg files” and accused the folks on the list, which again included the home addresses and phone numbers of all on the list. This file purported to be indictment of crimes against humanity and was being, in the words of the ACLA kept ready for when “perfectly legal” crimes against humanity trails could be held when the tide of acceptance of abortion had turned the way the group believed it eventually would.

The group also gave this information to a web designer who created a website with all this information and it included a $500 reward for anyone who managed to have a doctor on the list either recognize their crimes and stop performing abortions, or by other means had him or her lose their license to do so.

Planned Parenthood and several Doctors filed suit against the ACLA under the RICO and FACE acts that prevent criminal organizations from using intimidation or extortion. At trail the plaintiffs brought forth eveidnce that they were being extorted because by publishing their home addresses the ACLA, while not directly advocating violence against them was providing this information to 3rd parties who could be reasonably be assumed to want to do the harm. The killing of several abortion providers and attacks on clinics in the early ‘90’s was the reasonable basis for this fear.

The jury was instructed that if they thought these wanted posters and website were “true threats” they could find for the plaintiffs. True threats were defined as different than threats made for hyperbolic or political rhetorical purposes. The example cited by the Court was “If they make me carry a rifle the first man I want in my sights is LBJ”. While it is a threat, it is clearly a statement of political unhappiness with the policy of President Johnson and not a promise of action.

The jury found for the plaintiffs. In total they awarded them over 100 million in commentary and punitive damages. The district court also permanently enjoined the ACLA from publishing the names and addresses of doctors who provide abortions.

The ACLA appealed to the 9th Circuit Court of Appeals on First Amendment grounds.

The Courts Decision:

Judge Kozinski wrote the Opinion

The basic argument of the defendants was that since they in no way, at no time, advocated violence against the Doctors or anyone else, their “Wanted” poster was protected political speech and as such they should not in any way be liable for any third party taking action using the information they provided. The fact the doctors were concerned based on the previous actions of others who shared the ACLA desire to end abortion did not mean the ACLA and these violent others were in fact one group, regardless of the compatibility of their goals.

The ACLA argued the doctors feeling pressured and intimidated by their actions was acceptable politic discourse, as in charged issues there can often be a feeling of intimidation.

The Circuit Court found this argument prusasive. Judge Kozinski writes

Extreme rhetoric and violent action have marked many political movements in American history. Patriots intimidated loyalists in both word and deed as they gathered support for American independence. John Brown and other abolitionists, convinced that God was on their side, committed murder in pursuit of their cause. In more modern times, the labor, anti-war, animal rights and environmental movements all have had their violent fringes. As a result, much of what was said even by nonviolent participants in these movements acquired a tinge of menace.

He then goes on to use the test created by the Supreme Court in the case of NAACP V Claiborne Hardware. In that case the NCAAP decided on a boycott of businesses they felt were racist. As part of this boycott they stationed men outside the stores in black hats. These men took down the names of any black patron of these shops. The names and addresses were later read out at a rally were an NAACP leader said they people would be disciplined. Some were in fact later beaten up.

Judge Kozinski:

The Supreme Court acknowledged that Evers’s statements could be interpreted as inviting violent retaliation, "or at least as intending to create a fear of violence whether or not improper discipline was specifically intended." Nevertheless, it held that the statements were protected because there was insufficient evidence that Evers had "authorized, ratified, or directly threatened acts of violence." Nor was publication of the boycott violators’ names a sufficient basis for liability, even though collecting and publishing the names contributed to the atmosphere of intimidation that had harmed plaintiffs.. While Charles Evers and the defendants in our case pursued very different political goals, the two cases have one key thing in common: Political activists used words in an effort to bend opponents to their will.

The Judge went on to talk about the need for the widest possible latitude being needed in political speech protections less there be in unacceptable chilling of debate on contentious issues in the Untied States. If any political group should be able to be held libel for any violent actions anywhere by anyone who might share their point of view we would quickly litigate the right of political speech and dissent out existence all together.

The Court made a very clear distinction between directly communicated threats, such as a KKK member sending a letter with posters advocating violence against an inter-racial adoption agency and a general communication like the “Wanted” posters and the website. The first can reasonably be construed as a veiled threat, while the latter is unclear given its propose of a general advocating of the end of reproductive freedom. This distinction is where the Court finds the District Court and the jury was in error.

Base on this test and the need for freedom of political speech the Court vacated the injunction and remanded the case back to the District Court with an instruction to enter a judgment for the defendants on all counts.

This is one of those cases where the Dog hates the outcome in the specifics but supports it in the general. The actions of the ACLA are heinous to the Dog and since he is a staunch supporter of reproductive rights their cause is Neanderthal in its conception to him. However, there is the fact this group is very careful not to advocate violence in any of its posters or on the website. So while their speech is something the Dog does not want to hear, because he values his own speech rights so highly they do need to be protected in their right to say any damned fool thing they want, as long as it is not intended to cause violence or intimidation by threat of violence.

It seems clear the ACLA is doing everything it can to skirt right up to crossing this line, but in our system of justice you can do this. It is not illegal to be right on the edge, it is only when a person or groups actions actually cross the line that they incur liability. This group, as perfidious as they are, did not cross the line.

So, there is this weeks case and the Dog’s thoughts on it, what do you think citizens? Should the 9th Circuit have sided with the plaintiff’s who have good, fact based reasons to fear having their home addresses made public or do you think the overall right of free political speech outweighs these concerns?

The floor is yours.