43 in Congress Ask Court to Revisit Clinic Threat Issue

In a highly unusual move, 43 members of Congress said Thursday they will ask the federal appeals court in San Francisco to revisit a recent ruling holding that an Internet site and “wanted” posters identifying abortion providers as “baby butchers” deserving punishment are free speech.

In a friend-of-the-court brief to be filed today, 12 U.S. senators--including California Democrats Barbara Boxer and Dianne Feinstein--and 31 House members--mostly Democrats, including eight from California--warn that the March 28 decision could spawn renewed violence at abortion clinics.

The lawmakers assert that the ruling permitting the “Deadly Dozen” poster, which accused abortion doctors of “crimes against humanity,” and the Web site titled “the Nuremberg Files,” undermined the legislative intent of the 1994 Freedom of Access to Clinic Entrances Act.

The law bars the use of force or threats of force to prevent access to reproductive health services. The statute was passed in the wake of more than 400 incidents of violence at abortion clinics in 1993, as well as the murders that year of two doctors who provided abortions.

Sen. Charles E. Schumer (D-N.Y.), who co-wrote the law, is spearheading the lawmakers’ effort. Other participants include Sen. Edward Kennedy (D-Mass.), a key sponsor of the law in the Senate, and two Republicans: Sen. Susan Collins of Maine and Sen. James M. Jeffords of Vermont.

Schumer said the ruling by the U.S. 9th Circuit Court of Appeals threatened to erode the impact of the statute, which he said had “played a major role in dramatically reducing the number of crimes and threats against women and doctors.”

The lawmakers’ brief asserts that the legislative intent of the statute was meant to cover threats such as those on the “Nuremberg Files” Web site, which listed doctors who provide abortions, including in some instances their photos, addresses, car license plate numbers and names of family members.

The names of doctors murdered by abortion foes were lined out on the Web site and those wounded were marked in gray.

According to the brief, the three-judge panel of the 9th Circuit “disregarded Congress’ intent that the statute be construed as broadly as possible to achieve Congress’ remedial purpose of eradicating violence and intimidation.”

The lawmakers announced their action a day after the Planned Parenthood Federation of America, one of the primary plaintiffs in the case, filed papers in the 9th Circuit asking the court to grant a rehearing in the case.

For that to happen, a majority of the 9th Circuit’s 25 active judges would have to vote for a new hearing. Court officials said that in a typical year, the 9th Circuit grants review by a larger panel of judges--known as an en banc hearing--in less than 1% of all of its cases.

The lawmakers contend that the case meets all the relevant criteria for an en banc hearing. Their brief--filed by former federal appeals court Judge John J. Gibbons of Newark, N.J.--asserts that the ruling conflicts with prior 9th Circuit decisions, conflicts with decisions of other federal appeals courts, and “presents an issue of exceptional importance.”

In addition to the lawmakers’ brief, the Anti-Defamation League and the Feminist Majority Foundation already have informed the 9th Circuit that they intend to file friend-of-the-court briefs seeking reversal of the unanimous decision.

The plaintiffs in an Oregon case--four doctors, Planned Parenthood and a clinic in Portland--were the first to win a jury verdict under the 1994 law: a $107-million damages judgment in February 1999. Consequently, the appeal has been closely watched as a sign of what kinds of restraints courts will impose on abortion foes.

The 9th Circuit ruling, written by Judge Alex Kozinski, overturned the Portland verdict in which a jury concluded that the posters and Web site were a real threat to four abortion doctors and the clinics where they worked.

Held liable were 13 militant anti-abortion activists--including one who had written a book defending people who had murdered doctors who provided abortions--and two anti-abortion groups: the American Coalition of Life Activists and Advocates for Life Ministries.

U.S. District Judge Robert E. Jones, who presided at the Portland trial, had told jurors that they could find the defendants liable based on the Web site and the posters if they determined that “a reasonable person making the statement would foresee that the statement would be interpreted by those to whom it is communicated as a serious expression of an intent to do bodily harm or assault.”

In addition to reversing the massive damages judgment, 9th Circuit Judge Kozinski--joined by Judges Andrew J. Kleinfeld and William W. Schwarzer--also overturned an injunction issued by Jones, which held that the posters and Web site were “a blatant and illegal communication of true threats to kill, assault or do bodily harm.”

Staunch abortion foes described the 9th Circuit decision as a vindication of their 1st Amendment rights. But the ruling was immediately condemned by abortion rights activists and the doctors as giving license to fanatics.

In his opinion, Kozinski wrote that the defendants “can only be held liable if they authorized, ratified or directly threatened violence.”

“If defendants threatened to commit violent acts, by working alone or with others, then their statements could properly support the verdict. But if their statements merely encouraged unrelated terrorists, then their words are protected by the 1st Amendment,” the judge added.

Moreover, Kozinski wrote, “political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated party.”

The 9th Circuit decision undermined Congress’ intent in three important ways, according to the lawmakers’ brief. “Congress’ specifically articulated concern that ‘Wanted’-style posters, precisely like those in this case, be prohibited by the statute,” the brief states.

The brief makes no reference to a 1982 U.S. Supreme Court decision that Kozinski cited as the primary underpinning of his opinion. In that case, NAACP vs. Claiborne Hardware Co., a group of white-owned businesses sued the NAACP and others who organized a civil rights boycott against certain stores in Mississippi.

Local NAACP leader Charles Evers had warned blacks at a rally that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

The high court acknowledged that Evers’ statements could be interpreted as inviting violent action, but held that the statements were constitutionally protected because there was insufficient evidence that Evers had “authorized, ratified or directly threatened acts of violence.”

Kozinski said that the same rationale applied in the current case--Planned Parenthood of the Columbia/Willamette Inc. et al vs. American Coalition of Life Advocates.

However, in legal papers filed this week, Planned Parenthood attorneys said that the 9th Circuit misapplied the Claiborne decision, stressing that the plaintiffs in that case “were white merchants not targeted by Evers’ statements and who sued not for any threatened violence against them, but for profits lost during a seven-year economic boycott.”

Lawyers for the defendants in the Oregon case did not return calls seeking comment Thursday.