Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists

[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source (PDF format) for the full opinion.]

Circuit Judge Rymer

For the first time we construe what the Freedom of Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248, means by "threat of force." FACE gives aggrieved persons a right of action against whoever 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). This requires that we define "threat of force" in a way that comports with the First Amendment, and it raises the question whether the conduct that occurred here falls within the category of unprotected speech.

Four physicians, Dr. Robert Crist, Dr. Warren M. Hern, Dr. Elizabeth Newhall, and Dr. James Newhall, and two health clinics that provide medical services to women including abortions, Planned Parenthood of the Columbia/ Willamette, Inc. (PPCW) and the Portland Feminist Women's Health Center (PFWHC), brought suit under FACE claiming that they were targeted with threats by the American Coalition of Life Activists (ACLA), Advocates for Life Ministries (ALM), and numerous individuals. Three threats remain at issue: the Deadly Dozen "GUILTY" poster which identifies Hern and the Newhalls among ten others; the Crist "GUILTY" poster with Crist's name, addresses and photograph; and the "Nuremberg Files," which is a compilation about those whom the ACLA anticipated one day might be put on trial for crimes against humanity. The "GUILTY" posters identifying specific physicians were circulated in the wake of a series of "WANTED" and "unWANTED" posters that had identified other doctors who performed abortions before they were murdered.

Although the posters do not contain a threat on their face, the district court held that context could be considered. It defined a threat under FACE in accordance with our "true threat" jurisprudence, as a statement made when "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm." Applying this definition, the court denied ACLA's motion for summary judgment in a published opinion. Planned Parenthood of the Columbia/ Willamette, Inc. v. ACLA (PPCW II), 23 F. Supp. 2d 1182 (D. Or. 1998). The jury returned a verdict in physicians' favor, and the court enjoined ACLA from publishing the posters or providing other materials with the specific intent to threaten Crist, Hern, Elizabeth Newhall, James Newhall, PPCW, or the Health Center. Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA (PPCW III), 41 F. Supp. 2d 1130 (D. Or. 1999). ACLA timely appealed.

A panel of this court reversed. In its view, the standard adopted by the district court allowed the jury to find ACLA liable for putting the doctors in harm's way by singling them out for the attention of unrelated but violent third parties, conduct which is protected by the First Amendment, rather than for authorizing or directly threatening harm itself, which is not. Planned Parenthood of the Columbia/ Willamette, Inc. v. ACLA (PPCW IV), 244 F. 3d 1007 (9th Cir.), reh'g en banc granted, 268 F. 3d 908 (9th Cir. 2001). The panel decided that it should evaluate the record independently to determine whether ACLA's statements could reasonably be construed as saying that ACLA, or its agents, would physically harm doctors who did not stop performing abortions. Having done so, the panel found that the jury's verdict could not stand.

We reheard the case en banc because these issues are obviously important. We now conclude that it was proper for the district court to adopt our long-standing law on "true threats" to define a "threat" for purposes of FACE. FACE itself requires that the threat of force be made with the intent to intimidate. Thus, the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA's intent to harm them because they provided reproductive health services. Construing the facts in the light most favorable to physicians, the verdict is supported by substantial evidence. ACLA was aware that a "wanted"-type poster would likely be interpreted as a serious threat of death or bodily harm by a doctor in the reproductive health services community who was identified on one, given the previous pattern of "WANTED" posters identifying a specific physician followed by that physician's murder. The same is true of the posting about these physicians on that part of the "Nuremberg Files" where lines were drawn through the names of doctors who provided abortion services and who had been killed or wounded. We are independently satisfied that to this limited extent, ACLA's conduct amounted to a true threat and is not protected speech. As we see no reversible error on liability or in the equitable relief that was granted, we affirm. However, we remand for consideration of whether the punitive damages award comports with due process.

I

4 On the FACE claims, the jury awarded $39,656 to Crist, $14,429 to Hern, $15,797.98 to Elizabeth Newhall, $375 to James Newhall, $405,834.86 to PPCW, and $50,243 to PFWHC from each defendant as compensatory damages and $14.5 million to Crist, $13 million to Hern, $14 million to Elizabeth Newhall, $14 million to James Newhall, $29.5 million to PPCW, and $23.5 million to PFWHC in punitive damages. On the RICO claims (after trebling), Crist was awarded $892,260; Hern, $324,657; Elizabeth Newhall, $355,454; James Newhall, $8,442; PPCW $9,131,280; and PFWHC, $1,130,466.

joined by Circuit Judges Reinhardt, O'Scannlain, Kleinfeld, and Berzon

The majority writes a lengthy opinion in a vain effort to justify a crushing monetary judgment and a strict injunction against speech protected by the First Amendment. The apparent thoroughness of the opinion, addressing a variety of issues that are not in serious dispute, masks the fact that the majority utterly fails to apply its own definition of a threat, and affirms the verdict and injunction when the evidence in the record does not support a finding that defendants threatened plaintiffs. After meticulously canvassing the caselaw, the majority correctly distills the following definition of a true threat: "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person." (emphasis added).n2 The emphasized language is crucial, because it is not illegal--and cannot be made so--merely to say things that would frighten or intimidate the listener. For example, when a doctor says, "You have cancer and will die within six months," it is not a threat, even though you almost certainly will be frightened. Similarly, "Get out of the way of that bus" is not a threat, even though it is said in order to scare you into changing your behavior. By contrast, "If you don't stop performing abortions, I'll kill you" is a true threat and surely illegal.

The difference between a true threat and protected expression is this: A true threat warns of violence or other harm that the speaker controls. Thus, when a doctor tells a patient, "Stop smoking or you'll die of lung cancer," that is not a threat because the doctor obviously can't cause the harm to come about. Similarly, "If you walk in that neighborhood late at night, you're going to get mugged" is not a threat, unless it is clear that the speaker himself (or one of his associates) will be doing the mugging.

In this case, none of the statements on which liability was premised were overtly threatening. On the contrary, the two posters and the web page, by their explicit terms, foreswore the use of violence and advocated lawful means of persuading plaintiffs to stop performing abortions or punishing them for continuing to do so. Nevertheless, because context matters, the statements could reasonably be interpreted as an effort to intimidate plaintiffs into ceasing their abortion-related activities. If that were enough to strip the speech of First Amendment protection, there would be nothing left to decide. But the Supreme Court has told us that "[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (emphasis added). In other words, some forms of intimidation enjoy constitutional protection.

Only a year after Claiborne Hardware, we incorporated this principle into our circuit's true threat jurisprudence. Striking down as overbroad a Montana statute that made it a crime to communicate to another "a threat to . . . commit a criminal offense," we stated: "The mere fact that communication induces or 'coerces' action in others does not remove it from first amendment protection." Wurtz v. Risley, 719 F. 2d 1438, 1441 (9th Cir. 1983) (quoting Claiborne Hardware, 458 U.S. at 911). . . . Claiborne Hardware and Wurtz hold that statements that are intimidating, even coercive, are protected by the First Amendment, so long as the speaker does not threaten that he, or someone acting in concert with him, will resort to violence if the warning is not heeded.

The majority recognizes that this is the standard it must apply, yet when it undertakes the critical task of canvassing the record for evidence that defendants made a true threat--a task the majority acknowledges we must perform de novo--its opinion fails to come up with any proof that defendants communicated an intent to inflict bodily harm upon plaintiffs. . . . The majority does not point to any statement by defendants that they intended to inflict bodily harm on plaintiffs, nor is there any evidence that defendants took any steps whatsoever to plan or carry out physical violence against anyone. . . .

The record reveals one instance where an individual--Paul Hill, who is not a defendant in this case--participated in the preparation of the poster depicting a physician, Dr. Britton, and then murdered him. All others who helped to make that poster, as well as those who prepared the other posters, did not resort to violence. There is therefore no pattern showing that people who prepare wanted-type posters then engage in physical violence. To the extent the posters indicate a pattern, it is that almost all people engaged in poster-making were non-violent.n3

. . .

Plaintiffs themselves explained that the fear they felt came, not from defendants, but from being singled out for attention by abortion protesters across the country. . . .

From the point of view of the victims, it makes little difference whether the violence against them will come from the makers of the posters or from unrelated third parties; bullets kill their victims regardless of who pulls the trigger. But it makes a difference for the purpose of the First Amendment. Speech--especially political speech, as this clearly was--may not be punished or enjoined unless it falls into one of the narrow categories of unprotected speech recognized by the Supreme Court: true threat, Watts v. United States, 394 U.S. 705, 707 (1969), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), conspiracy to commit criminal acts, Scales v. United States, 367 U.S. 203, 229 (1961), fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942), etc.

Even assuming that one could somehow distill a true threat from the posters themselves, the majority opinion is still fatally defective because it contradicts the central holding of Claiborne Hardware: Where the speaker is engaged in public political speech, the public statements themselves cannot be the sole proof that they were true threats, unless the speech directly threatens actual injury to identifiable individuals. Absent such an unmistakable, specific threat, there must be evidence aside from the political statements themselves showing that the public speaker would himself or in conspiracy with others inflict unlawful harm. 458 U.S. at 932-34. The majority cites not a scintilla of evidence--other than the posters themselves--that plaintiffs or someone associated with them would carry out the threatened harm.

Given this lack of evidence, the posters can be viewed, at most, as a call to arms for other abortion protesters to harm plaintiffs. However, the Supreme Court made it clear that under Brandenburg, encouragement or even advocacy of violence is protected by the First Amendment: "[M]ere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment." Claiborne Hardware, 458 U.S. at 927 (citing Brandenburg, 395 U.S. at 447) (emphasis in the original).n5 Claiborne Hardware in fact goes much farther; it cautions that where liability is premised on "politically motivated" activities, we must "examine critically the basis on which liability was imposed." Id. at 915. As the Court explained, "Since respondents would impose liability on the basis of a public address--which predominantly contained highly charged political rhetoric lying at the core of the First Amendment--we approach this suggested basis for liability with extreme care." Id. at 926-27. This is precisely what the majority does not do; were it to do so, it would have no choice but to reverse.

The activities for which the district court held defendants liable were unquestionably of a political nature. . . .

. . .

While set in a different time and place, and involving a very different political cause, Claiborne Hardware bears remarkable similarities to our case:

• Like Claiborne Hardware, this case involves a concerted effort by a variety of groups and individuals in pursuit of a common political cause. Some of the activities were lawful, others were not. In both cases, there was evidence that the various players communicated with each other and, at times, engaged in concerted action. The Supreme Court, however, held that mere association with groups or individuals who pursue unlawful conduct is an insufficient basis for the imposition of liability, unless it is shown that the defendants actually participated in or authorized the illegal conduct.

• Both here and in Claiborne Hardware, there were instances of actual violence that followed heated rhetoric. The Court made clear, however, that unless the violence follows promptly after the speeches, thus meeting the stringent Brandenburg standard for incitement, no liability could be imposed on account of the speech.

• The statements on which liability was premised in both cases were made during the course of political rallies and had a coercive effect on the intended targets. Yet the Supreme Court held in Claiborne Hardware that coercion alone could not serve as the basis for liability, because it had not been shown--by evidence aside from the political speeches themselves--that defendants or their agents were involved in or authorized actual violence.

• In Claiborne Hardware, the boycott organizers gathered facts--the identity of those who violated the boycott--and publicized them to the community by way of speeches and a newspaper. As in our case, this ostentatious gathering of information, and publication thereof, were intended to put pressure on those whose names were publicized, and perhaps put them in fear that they will become objects of violence by members of the community. Yet the Supreme Court held that this could not form the basis for liability.n7

To the extent Claiborne Hardware differs from our case, the difference makes ours a far weaker case for the imposition of liability. To begin with, Charles Evers's speeches in Clairborne Hardware explicitly threatened physical violence. . . . In our case, the defendants never called for violence at all, and certainly said nothing suggesting that they personally would be involved in any violence against the plaintiffs.

Another difference between the two cases is that the record in Claiborne Hardware showed a concerted action between the boycott organizers, all of whom operated within close physical proximity in a small Mississippi county. By contrast, there is virtually no evidence that defendants had engaged in any concerted action with any of the other individuals who prepared "wanted" posters in the past.

The most striking difference between the two cases is that one of Evers's speeches in Claiborne Hardware, which expressly threatened violence against the boycott violators, was in fact followed by violence; he then made additional speeches, again referring to violence against boycott breakers. By contrast, the record here contains no evidence that violence was committed against any doctor after his name appeared on defendants' posters or web page.

The opinion's effort to distinguish Claiborne Hardware does not bear scrutiny. . . . Evers's statements were threatening on their face. . . . By any measure, the statements in our case are far less threatening on their face, yet the majority chooses to defer to the jury's determination that they were true threats.

. . . . [T]he threats in Claiborne Hardware were also individually targeted. . . .

Claiborne Hardware ultimately stands for the proposition that those who would punish or deter protected speech must make a very substantial showing that the speech stands outside the umbrella of the First Amendment. . . .

The cases on which the majority relies do not support its conclusion. United States v. Hart, 212 F. 3d 1067 (8th Cir. 2000), is a case where the communication did not merely threaten harm in the future, but was itself perceived as dangerous. The defendant there parked two Ryder trucks in the driveway of an abortion clinic, as close to the building as possible. Given the association of Ryder trucks with the Oklahoma City bombing, and the timing and location of the incident, the trucks could reasonably be suspected of containing explosives. They were much like mailing a parcel containing a ticking clock or an envelope leaking white powder. The threat in Hart came not from the message itself, but from the potentially dangerous medium used to deliver it.

. . . . In our case, the defendants merely displayed posters at locations nowhere near the plaintiffs' homes or workplaces. The threat, if any there was, came not from the posters themselves, but from the effect they would have in rousing others to take up arms against the plaintiffs. Hart has no relevance whatsoever to our case.

Nor does United States v. Dinwiddie, 76 F. 3d 913 (8th Cir. 1996), a case involving repeated face-to-face confrontations between the defendant and the targets of her harangues, help the majority. . . . Where the speaker directly confronts her target and expressly states that she is among those who will carry out the violence, it is hardly surprising when the court finds that there has been a true threat.n12

We have recognized that statements communicated directly to the target are much more likely to be true threats than those, as here, communicated as part of a public protest. . . .

. . .

Finally, a word about the remedy. The majority affirms a crushing liability verdict, including the award of punitive damages, in addition to the injunction. An injunction against political speech is bad enough, but the liability verdict will have a far more chilling effect. . . . The lesson of what a local jury has done to defendants here will not be lost on others who would engage in heated political rhetoric in a wide variety of causes.

In that regard, a retrospective liability verdict is far more damaging than an injunction; the latter at least gives notice of what is prohibited and what is not. The fear of liability for damages, and especially punitive damages, puts the speaker at risk as to what a jury might later decide is a true threat, and how vindictive it might feel towards the speaker and his cause. . . .

While today it is abortion protesters who are singled out for punitive treatment, the precedent set by this court--the broad and uncritical deference to the judgment of a jury--will haunt dissidents of all political stripes for many years to come. Because this is contrary to the principles of the First Amendment as explicated by the Supreme Court in Claiborne Hardware and its long-standing jurisprudence stemming from Brandenburg v. Ohio, I respectfully dissent.

2 Although the majority's definition does not specify who is to inflict the threatened harm, use of the active verb "inflict" rather than a passive phrase, such as "will be harmed," strongly suggests that the speaker must indicate he will take an active role in the inflicting. . . .

3 The majority so much as admits that the Nuremberg Files website does not constitute a threat because of the large number of people listed there. The majority does point out that doctors were listed separately, and that the names of doctors who were killed or wounded were stricken or greyed out, but does not explain how this supports the inference that the posting of the website in any way indicated that defendants intended to inflict bodily harm on plaintiffs. At most, the greying out and strikeouts could be seen as public approval of those actions, and approval of past violence by others cannot be made illegal consistent with the First Amendment.

5 Under Brandenburg, advocacy can be made illegal if it amounts to incitement. But incitement requires an immediacy of action that simply does not exist here, which is doubtless why plaintiffs did not premise their claims on an incitement theory.

7 The outcome might be quite different in a case where defendants publish information about plaintiffs that had previously been private and that defendants had obtained unlawfully. Plaintiffs here made no such claim, and we must therefore assume that the information about plaintiffs that was listed on the posters and the website was obtained from public sources.

12 Even then, Dinwiddie is instructive for the restraint it exercised in granting relief. Dinwiddie was not subjected to a crushing and punitive award of damages, and the injunction against her was narrowly drawn and carefully tailored to accommodate her legitimate interests, including her interest in free expression. She was not banned from all speech of a certain kind, but only from speech that expressly violates the Freedom of Access to Clinic Entrances Act or is delivered through a bullhorn within 500 feet of an abortion clinic. Dinwiddie, 76 F. 3d at 928-29. The Eighth Circuit emphasized that "[t]he types of activity that the injunction would proscribe are quite narrow," and that Dinwiddie would be free to "carry signs, distribute literature, and speak at a reasonable volume even when she is within 500 feet of an abortion clinic." Id. By contrast, the injunction in our case indefinitely bars defendants from publishing, reproducing, distributing (and even owning) the posters, the website or anything similar, anywhere in the United States. Planned Parenthood, 41 F. Supp. 2d at 1155- 56.

Dissenting opinion of Circuit Judge Reinhardt, with whom Circuit Judges Kozinski, Kleinfeld, and Berzon joined, omitted. 

Dissenting opinion of Circuit Judge Berzon, with whom Circuit Judges Reinhardt, Kozinski, and Kleinfeld joined, and with whom Circuit Judge O'Scannlain joined as to Part III only, omitted.