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Appeals court deems anti-abortion site 'threat'

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  1. Prior Restraint

    NMU         NINTH CIRCUIT         Prior Restraints         May 16, 2002    

Appeals court deems anti-abortion site ‘threat’

  • The full U.S. Court of Appeals in San Francisco determined that the activists who created the “Wanted” posters at the Nuremberg Files Web site could be held liable for their site’s content.

A federal appeals court today reversed an earlier panel decision, ruling that anti-abortion activists who created the Nuremberg Files Web site — complete with Wild West-style “Wanted” posters of abortion doctors — could be held liable for illegal threats.

The decision of the U.S. Circuit Court of Appeals in San Francisco (9th Cir.) overturns a three-judge panel ruling from March 2001 that deemed the Web site’s content protected speech because it did not directly threaten violence.

But a 6-5 majority thought otherwise.

Judge Pamela Ann Rymer, writing for the majority, said the American Coalition of Life Activists clearly issued a threat to abortion doctors listed on the Nuremberg Files site.

“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,” Rymer wrote.

The sharply divided court, however, ordered a U.S. district judge to reduce the original $107 million in damages a Portland, Ore., jury awarded to four abortion doctors in February 1999. The doctors sued a dozen ACLA members after their names, photos and addresses appeared on the Web site.

The ACLA began compiling personal information about abortion doctors in 1995 and soon began posting them on the Nuremberg Files Web site. The site included computer simulations of dripping blood and dead fetuses as well as “Wanted” posters and detailed personal information of numerous doctors.

Planned Parenthood and others sued the activists under the 1994 Freedom of Access to Clinic Entrances Act, a law that outlaws protestors from blocking abortion clinic entrances, and under federal and state Racketeer Influenced and Corrupt Organizations acts.

The plaintiffs claimed a link between the activists’ Web site and recent murders of abortion doctors, arguing that the doctors’ pictures were struck soon after their deaths.

The majority agreed that surviving doctors understandably consider that a threat.

But five judges, who authored or joined one or more of three dissenting opinions, said the majority should have applied stricter scrutiny in the case since it involved political speech about a public issue.

Judge Alex Kozinski, who authored the panel ruling in March 2001, said the court records do not show how the activists actually threatened the doctors.

Kozinski, after commenting on the lengthy 129-page opinion, wrote that the majority correctly defined a threat as “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.”

But he wrote further that the court overextended the definition to include the Nuremberg Files Web site.

“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.”

He noted that the Web site actually condemned the use of violence and advocated lawful pursuits to persuade doctors to stop performing abortions.

(Planned Parenthood v. ACLA) PT

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