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Hit list kept by anti-abortionists deemed protected speech

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  1. Libel and Privacy

    NMU         NINTH CIRCUIT         Privacy         Mar 29, 2001    

Hit list kept by anti-abortionists deemed protected speech

  • A federal appeals panel found the online listing of doctors who perform abortions did not present a threat of violence and reversed a $107 million jury award.

The publication of names and addresses of doctors who perform abortions was speech protected by the First Amendment, a three-judge panel of the U.S. Court of Appeals in Portland, Ore. (9th Cir.) ruled on March 28.

The court overturned a lower court’s $107 million jury verdict against the owners of a Web site that provided a list of doctors who perform abortions because it did not directly threaten violence. The list included the crossed-out names of doctors murdered by anti-abortion activists and names in gray of injured doctors.

Some of the doctors on the list sued in federal district court in Portland, Ore., charging the American Coalition of Life Activists and anti-abortion activist Neal Horsely with violating the federal racketeering act and the Freedom of Access to Clinic Entrances Act of 1994.

Beginning in 1995, the ACLA began compiling personal information on doctors. Horsely published the information on a Web site, which calls doctors who perform abortions “baby butchers.” The purpose, according to the Web site, is to gather information so that Nuremberg-like war crimes trials could be conducted “once the tide of this nation’s opinion turns against the wanton slaughter of God’s children.” Although the Web site did not directly advocate violence, the doctors knew that such public releases of private information had preceded violence against other doctors in the past.

Judge Alex Kozinski, writing for the Ninth Circuit panel, ruled that defendants can only be held liable if they “authorized, ratified, or directly threatened violence.” Speech which only makes it more likely that some person will be harmed in the future by an unknown party is not actionable.

“Unless ACLA threatened that its members would themselves assault the doctors, the First Amendment protects its speech,” the court said.

The court found that the jury instruction on what constituted a “true threat” could have permitted the jury to find for the plaintiffs even if the jury believed that the threatened harm to the plaintiffs came from third parties.

Although Kozinski said that ACLA’s speech was “pungent, even highly offensive,” it did not threaten harm to the doctors and only advocates the gathering of information for the potential war crime trials.

If the jury were allowed to consider the potential actions of third parties when determining if the defendants were threatening violence, “it could have a highly chilling effect on public debate on any cause where somebody, somewhere has committed a violent act in connection with that cause.”

The court was also persuaded to afford the speech protection because it was made in public and therefore was less likely to be a threat. The court reasoned that “what may be hyperbole in a public speech may be understood as a threat if communicated directly to the person threatened, whether face-to-face, by telephone or by letter.”

(Planned Parenthood v. ACLA) DB

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