Opposition Brief — American Coalition of Life Activists v. Planned Parenthood of the Columbia/Willamette, Inc. (No. 05-1083)
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(Id. at 77, 240), petitioners unveiled, in blown-up form, their
“Deadly Dozen” hit list of thirteen physicians, including three
respondents, accusing them of “crimes against humanity.” (/d.
at 78-79, 228-30.) The Federal Bureau of Investigation and
U.S. Marshals immediately contacted respondents, who, with
full knowledge of the prior poster/murder pattern and
petitioners’ “pro-force” position, purchased bulletproof vests,
wigs and disguises. (/d. at 78-82, 122, 228-31.)
ACLA’s threats continued unabated. In August 1995,
ACLA released a poster of respondent Dr. Robert Crist, with his
photograph and home and work addresses, declaring him “guilty
of crimes against humanity” and offering a “reward.”
Petitioners visited Dr. Crist’s St. Louis clinic to relay their threat
directly. Once again, petitioners succeeded in their intent to
intimidate: Dr. Crist accepted law enforcement protection and
undertook additional security measures to protect himself and
his family. (Pet. App. 79, 231.)
In January 1996, ACLA unveiled “the Nuremberg
Files.” (Pet. App. 78-79.) Subsequently, petitioners
surreptitiously sent the Nuremberg Files to Neal Horsley for
placement on the internet in ACLA’s name. Horsley complied,
and the hardeonwy files were destroyed. (/d. at 78-79, 231-35.)
Amidst dripping blood, crossed-out names of murdered doctors
and grayed names of wounded doctors, the Nuremberg Files
contained Physicians’ names, addresses and family information,
and warned of a “payday someday, a day when what is sown Is
” 6
reaped.”” (/d. at 78-79, 109-10.)
ACLA struggles to distance itself from the Nuremberg Files by noting
that Horsley is a non-party. It 1s undisputed, however, that the
Nuremberg Files were petitioners’ creation. (Pet. App. 78-79, 232-35,
281-85.) ACLA’s “Lodging” tellingly does not include the trial exhibits
documenting ACLA’s role in creating the Nuremberg Files or ACLA’s
involvement in the internet version. (4. ¢., Exs. 4, 7B, 80.) And, Paul
dePame, petitioners’ agent, was directly involved im the creation of the
B. Trial, Jury Verdict and Injunction
Fearing for their lives and the safety of their
families, respondents sued, contending that petitioners’
communications to Physicians were “threats of force” in
violation of federal law.’ Relying on settled threats law under
multiple federal threats statutes (on which FACE was modeled),
the district court denied ACLA’s motions to dismiss and, after
discovery, denied ACLA’s motions for summary judgment.
(Pet. App. 332, 400.) After three weeks of trial and four days of
deliberations, the jury found that each of the Deadly Dozen List,
Crist Poster and Nuremberg Files constituted “a true threat by
one or more of the defendants to bodily harm, assault or kill any
one of the plaintiffs.” (Pet. App. 429.) The jury also found—in
response to a question in the jury verdict form proposed by
ACLA—that each petitioner “violate[d] or conspire[d] to violate
FACE”; it further found that all but two petitioners violated
RICO. (Pet. App. 429-444; Resp. App. 37a-67a.) Carefully
assigning differing degrees of fault to each defendant, the jury
awarded Physicians compensatory damages under FACE and
RICO and punitive damages under FACE. (Pet. App. 429-44.)
In enjoining petitioners from further unlawful conduct,
District Judge Robert E. Jones independently found,
by clear and convincing evidence that each
defendant, acting independently and as a co-
conspirator, prepared, published and
disseminated the “Deadly Dozen” poster, the
Poster of Dr. Robert Crist and the “Nuremberg
Files” with specific intent and malice in a latant
Nuremberg Files and participated in the destruction of the hardcopy
Files after they were sent by ACLA to Horsley. (Pet. App.124, 281-85)
Physicians sued under PACE, 18 U.S.C. § 248, and RICO, 18 U.S.C
$$ 1961-1968
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and illegal communication of true threats to kill,
assault or do bodily harm to each of the plaintiffs
and with the specific intent to interfere with or
intimidate the plaintiffs from engaging in legal
medical practices or procedures.
(Pet. App. 81-82, 226-92, 294.)°
In its findings, the district court found both subjective
and objective intent to threaten on behalf of each petitioner.
(Pet. App. 81-82, 228-31, 286.) The jury’s finding of intention
to intimidate under FACE, as the en banc Ninth Circuit made
clear, reflects this very same determination. (/d. at 75, 100-01,
111-12.)
C. ACLA’s First Ninth Circuit Appeal
ACLA appealed/_raising— an amalgam of 35
constitutional, statutory, instructional, evidentiary and mistrial
issues—but none of the RICO or standing arguments discussed
in its certiorari petition. In an opinion by Judge Kozinski, a
three-judge panel reversed on First Amendment grounds, ruling
that the evidence did not establish that petitioners’ posters and
list conveyed the message that petitioners themselves would
inflict bodily harm on respondents. The Ninth Circuit reheard
the case en banc. {In an opmion authored by Judge Rymer,
joined by Chief Judge Schroeder and Judges Hawkins,
Silverman, Wardlaw and Rawlinson, the en banc majority found
that petitioners’ conduct was not protected, as the record
showed that petitioners threatened violence with intention to
intimidate. The en banc Ninth Circuit affirmed the liability
The district court issued its injunction under FACE, which specifically
authorizes private parties to obtain injunctive relief. 18 U.S.C.
§$ 248(c)(1)(B). Respondents did not seek a RICO injunction, which
distinguishes this case from Scheidler v. National Organization for
Women, Inc., 123 S. Ct. 1264 (2006), see infra pp. 24-27.
verdict, compensatory damages and injunction m their entirety,
and remanded to the district court solely on the amount of the
FACE punitive damages award.
In her opinion for the en banc majority, Judge Rymer
carefully surveyed the uniform body of threats law developed in
the Ninth Circuit and the other Circuits following this Court's
decision in Watts v. United States, 394 U.S. 705 (1969), and
determined that the district court properly defined “threat” for
purposes of this case. (Pet. App. 93-110.) The court of appeals
also held that, under well-settled law, the jury properly
considered context in determining whether petitioners’
statements were “true threats.” (/d. at 106-10.) The court
further found that, even were subjective intent required as a
matter of constitutional law, the FACE instructions in this case
required the jury to find that petitioners issued their threats with
intent to intimidate respondents—that ts, that they subjectively
intended to cause respondents to fear bodily injury. (/d. at 75,
100-01, 111.)”
Although disagreeing with the result, the dissenting
judges—Judges Reinhardt, Kozinski, O’Scannlain, Kleinfeld
and Berzon—agreed that the en banc majority properly defined
the legal standard for true threats, properly approved the jury’s
consideration of context, and properly held that the case
required an independent review of the factual record. (Pet. App
128-32.) The dissenting opinions simply disagreed with the
The en banc court also considered and rejected the other arguments
raised by ACLA on appeal. (Pet. App. H2n.16, 114n.17, 114-19.) In
particular, the en banc court rejected ACLA’s argument—now raised
again in its second certiorari petition—that no claim for conspiracy to
violate FACE exists. (/d. at 112 n.16) The court of appeals held that
because ACLA raised this issue “‘for the first time on appeal,” and that
ACLA ttself had proposed the disjunctive jury verdict question, it farled
on preservation grounds. The en banc court also held that even if it were
to consider this waived argument, it would not find in ACLA’s favor
hecause no “substantial injustice occurred.” (/d.} See infra pp. 29-30
application of those settled legal standards to the particular facts
. ‘ . . 0
of this case. (E.g., id. at 128-29.)!
D. ACLA’s First Certiorari Petition
After its request for en banc rehearing by the full Ninth
Circuit was denied, on October 8, 2002, ACLA filed a petition
for a writ of certiorari with this Court, raising the very same
First Amendment questions, as well as the same FACE
conspiracy question, that are presented again by the present
petition.’ Physicians opposed certiorari. On December 16,
2002, this Court invited the U.S. Solicitor General to file a brief
expressing the views of the United States as to whether
certiorari should be granted. After this Court issued its decision
in Black, the Solicitor General, on May 30, 2003, filed his brief
expressing the United States’s view that the en banc Ninth
Circuit “applied a legal standard for distinguishing ‘true threats’
from protected speech that is correct and consistent with this
Court’s decisions” and that for this and other reasons the
petition should be denied. (Resp. App. 8a.)'> ACLA and
Physicians also filed supplemental briefs addressing the impact
In addition to joining Judge Kozinski’s dissent, which agreed with the
majority's articulation of threats law and standard of review, Judges
Reinhardt and Berzon authored separate dissents. Judge Reinhardt
argued that “political speech’ deserves “heightened scrutiny.” (Pet
App. 127-128.) Judge Berger «aivocated a subjective intent standard,
which, as noted, was mei # ®ms case. (Id. at 166-70.)
ACLA’s amici raised net onty these First Amendment and FACE
conspiracy questions, bul aiso the same RICO and standing questions
raised by the present petition. See supra note 3.
The Solicitor General’s brief recognized that, because the jury was
required to—and did—tfind that each petitioner acted with subjective
intent under the FACE statute, this case is “not a suitable vehicle’ to
address the question whether subjective intent is required for “true
threats” under the First Amendment. (Resp. App. 15a.)
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of Black on this case. On June 27, 2003, the Court denied
‘ r ‘ , 3
certiorari review. (Pet. App. 66.)
E. The Ninth Circuit Mandate
On July 9, 2003, the court of appeals issued its mandate.
As noted above, the en banc court had found “no reversible
error on liability or in the equitable relief that was granted,”
“affirm[ed] the judgment in all respects but for punitive
damages,” and remanded solely for “consideration of whether
the punitive damages award comports with due process.”’) (Pet.
App. 75, 127.)
F. District Court Proceedings on Remand
On remand, contrary to petitioners’ representation in
their motion to stay the mandate that “[t]he only issue on
remand would be whether the punitive damages award should
stand or be lowered” (Resp. App. 26a-27a), and the Ninth
Circuit’s clear mandate that the proceedings were limited to
review of the jury’s punitive damages awards (Pet. App. 75),
ACLA filed motions raisimg arguments wholly unrelated to the
punitive damages question—all of which either had already
been rejected or could have been raised long ago. (/d. at 45-46.)
The district court properly “decline[d] to address the multitude
ACLA contends that denial of its first petition does not preclude review
now “‘because the denial of certiorari is not an adjudication on the
merits.” (Pet. 9n.4.) But this contention ignores the realities of what
occurred before this Court when ACLA filed its prior petition. At that
time, the parties and the Solicitor General submitted briefs that
addressed the very First Amendment questions that ACLA presents in its
current petition, not jurisdictional or “‘finality” issues (which Physicians
had noted only in a passing footnote in their brief). It was only after this
Court received the Solicitor General's detailed submisston—“which
concluded that none of ACLA’s challenges merited review” and
which made no mention at all of any “finality” concerns—that ACLA’s
first petition was denied
ae
of other issues” raised by ACLA, and “specifically den[ied]
defendants’ demand for a new trial.” (/d.) Addressing the
punitive-damages question properly before it, the district court
concluded that the jury’s awards were “reasonable and
constitutional” under the Due Process Clause. (/d. at 46.)
G. ACLA’s Second Appeal and Certiorari
Petition
ACLA appealed. Again in contravention of the
mandate, ACLA—as it did in the district court—raised a
multitude of issues before the Ninth Circuit unrelated to punitive
damages. ACLA’s second appeal was heard by a three-judge
panel comprised of Judges Fernandez, Rymer, and Kleinfeld. In
an opinion by Judge Rymer, the three-judge panel unanimously
held that the appeal was limited to punitive damages, as the en
banc court had mandated, and remitted the punitive damages
awards dramatically. In particular, the court of appeals held that
although petitioners’ conduct was “on the high side of
reprehensibility” and “warrant|ed] the imposition of significant
sanctions to punish and deter,” the ratio of punitive to
compensatory damages awarded by the jury exceeded
constitutional limits. (Pet. App. 19-20.) Based on a single-digit
ratio of 9:1, the court remitted the awards to a reduced amount
totaling $4.7 million and remanded “so that the district court
may order anew trial unless [P]hysicians accept the remittitur.”
(Id. at 28-32.) '* The panel also unanimously affirmed the
district court’s disposition of the many non-punitive-damages
4 , - ’ .
The court of appeals expressly rejected Physicians’ position, which was
adopted by the district court, as to how the applicable ratios should be
calculated in this case. Instead, the Ninth Circuit articulated its own
approach (not argued by ACLA) in formulating the ratios, which was
more favorable to petitioners. (Pet. App. 20-29.) Because the Ninth
Circuit has stayed its mandate pending the conclusion of proceedings in
this Court, the parties have not appeared before the district court on the
question whether Physicians will accept the remitttur.
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issues raised by ACLA, holding that “all these issues were
finally settled” by the en banc court on the first appeal and “are
i 15
not open for review.” Ud. at 32-34.)
ACLA’s request for rehearing and rehearing en banc
was denied, with no judge on the Ninth Circuit requesting a vote
on whether to rehear the matter. (Pet App. 402-03.) Now, for
the second time, petitioners seek review in this Court.
REASONS FOR DENYING THE PETITION
ACLA devotes the majority of its petition to re-raising
the very same First Amendment questions that this Court
properly declined to review three years ago. Indeed, although
the First Amendment questions presented have now been
reduced in number (from seven to one) and the arguments have
been somewhat reorganized, ACLA’s current petition is largely
a word-for-word copy of its prior petition. Nothing has changed
since 2003, however, to make ACLA’s factbound disagreements
over the court of appeals’ application of settled threats law any
more certworthy this second time around. See S. Ct. R. 10;
United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do
not grant a certiorari to review evidence and discuss specific
facts.”); C..D. Rudolph v. United States, 370 U.S. 269, 270
(1962) (dismissing writ where question turned on review of
factual findings).
Nevertheless, in an effort to suggest that its second
petition is somehow different than its first, ACLA contends that
a conflict now exists over the appropriate intent standard for
true threats and that this warrants certiorari review. ACLA ts
Notably, Judge Kleinfeld—who had dissented from the en banc majority
on the first appeal and had joined Judge Kozinski’s origimal panel
opinion—agreed that non-punitive-damages issues raised by
peliioners—including all three proposed questions in the pettuon——were
not open for review. (Pet. App. 32-34.)
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incorrect. This Court’s decision m Black—which was handed
down before the Court denied certiorari on ACLA’s prior
petition and whose impact was previously briefed to the Court
by both the parties and the U.S. Solicitor General—does not
establish a subjective-intent requirement for true threats. And
even if it did, it would not matter here. As the en banc Ninth
Circuit indisputably held, any subjective-intent requirement was
satisfied in this case by the jury’s finding that each petitioner
was liable under the FACE statute. (Pet. App. 100-01, 111.)
Thus, as the Solicitor General emphasized in opposing certiorari
on ACLA’s first petition, this case is “not a suitable vehicle to
address... whether the definition of a true threat should include
a subjective as well as an objective component.” (Resp. App.
15a.)
The remuinmg questions presented by ACLA’s
petition-—a factbound challenge to the size of the remitted
punitive damages awards as well as petitioners’ unpreserved
RICO, standing and FACE conspiracy arguments—also fall far
short of the standards required for this Court’s review. See S.
Ct. R.. 10. The petition for certiorari, accordingly, should be
denied.
PETITIONERS’ FIRST AMENDMENT
ARGUMENTS PRESENT NO LEGAL ISSUE
FOR SUPREME COURT REVIEW
A. The Ninth Circuit Properly Applied The
Settled Legal Standard For True Threats of
Violence—Which Fully Governs “Public
Forum Political Speech”
It is well-settled that “true threats” of violence are not
protected by the First Amendment. Black, 538 U.S. at 359;
Waits, 394 U.S. at 707; Madsen v. Women’s Health Ctr., Inc..,
512 U.S. 753, 773 (1994). (See Pet. App. 75, 90, 93, 126-27,
130, 207.) ACLA does not—and cannot—argue otherwise.
Instead, ACLA contends that its statements could not be true
threats because they consisted of “public- forum political
speech” and, thus, under NAACP vy. Claiborne Hardware Co.,
458 U.S. 886 (1982), required some sort of heightened,
“extreme care” standard of review that allegedly was not
satisfied in this case. (Pet. 12-13.) This is just wrong. The
court of appeals independent review of the facts of this case
took mto account all contextual factors, as this Court’s
precedents require, and ACLA’s disagreement, once again,
concerns the result of that application of settled law to the facts.
Indeed, many threats cases—including those involving
threats against the President and other federal officers—involve
public, political speech, and no different standard applies. As
the en banc Ninth Circuit held, and the Solicitor General noted
in opposing ACLA’s first certiorari petition, the same
standard—an objective, reasonable person test, in which “the
whole factual context” is considered'°—controls the threats
determination irrespective of the speaker’s particular political
views or method of communication. (Pet. App. 106-13; Resp.
App. |5a-17a); see, e.g., Madsen, 512 U.S. at 773 (stating, in a
case involving abortion protesters, that “threats ... however
communicated, are proscribable under the First Amendment’).
The en banc Ninth Circuit carefully considered both the
political aspect and the public distribution of petitioners’
statements. (Pet. App. 101-103; see Resp. App. 24a.) And,
upon de novo review of the factual record, the en banc court
determined, as had the jury and district court Judge, that a
reasonable speaker in ACLA’s position would reasonably
toresee—indeed, could only believe—that respondents would
'® ACLA contends that, after Black, the test for true threats requires
subjective intent to threaten. (Pet. 14.) As discussed below, ACLA not
only misinterprets Black, but ignores that, as the Ninth Circuit found and
the Solicitor General agreed, any subjective-intent requirement was met
in this case. This case, therefore, is not a suitable vehicle for the Court
to revisit the recent Black decision. See tafra pp. 15-19
14
perceive ACLA’s statements as a serious expression of an intent
to do them bodily harm. (Pet. App. 89, 119-23, 126-27.)
ACLA’s factbound disagreement with the finding that then
statements constituted unprotected threats of violence 1s no basis
for certiorari review. See S. Ct. R. 10
At bottom, ACLA’s argument boils down to a claim that
the en banc Ninth Circuit’s decision in this case conflicts with
this Court’s 1982 decision in Claiborne Hardware. (Pet. 11-
24.) But, as the Solicitor General emphasized in opposing
ACLA’s prior petition, this is simply not so. (Resp. App. 23a
(“Nor are petitioners correct in claiming that that the court of
appeals’ decision conflicts with Claiborne Hardware.”).) The
en banc court, in fact, fully and carefully analyzed the facts of
Claiborne Hardware against the very different facts of this case,
and ACLA’s disagreement with the result of that analysis
presents no question for certiorari review. (Pet. App. 94-97.)
Claiborne Hardware did not even involve a true threats
analysis under a threats statute. As the en banc Ninth Circuit
explained, although some of the statements by Charles Evers at
issue in Claiborne Hardware (including “the break your heck”
comments referred to in the petition) could have been
understood as threats in some other contexts, “there was no
context [under the facts of Claiborne Hardware] to give” the
Statements “the implication of authorizing or directly
threatening unlawful conduct.” (Pet. App. 97.) The en banc
court further noted that—unlike this case—Evers’s statements
were “extemporaneous, surrounded by statements supporting
non-violent action,” did not target specific individuals, and were
not similar to statements that preceded violence in the past. (/d.)
“Nor is there any indication that Evers’s listeners took his
statement that boycott breakers’ ‘necks would be broken’ as a
serious threat that their necks would be broken; they kept on
shopping at boycotted stores.” (/d.)
15
As the Solicitor General stated, “f{a]ll of those
considerations distinguish Claiborne Hardware trom this case.”
(Resp. App. 24a.) Indeed, unlike the targets of Evers’s speech
-the boycott-breakers who were not the plaintiffs in Claiborne
Hardware—Physicians testified about their personal fear
following ACLA’s threats (and fear of ACLA im particular) and
described the extensive security measures they undertook as a
direct result. (Pet. App. 60, 78-81, 294.) The prior posters and
murders and petitioners’ repeated endorsement of that violence
provided further context for the finding of intent to threaten
violence that the Claiborne Hardware facts lacked. (/d. at 94-
97, 119-123.) There simply is no conflict here with the law
enunciated in Claiborne Hardware—the facts and legal bases of
the decisions are just different.
Finally, it should be noted that, in Black, this Court held
that cross-burning—which indisputably is “public” and
“political” in nature—was a “true threat” unprotected by the
First Amendment. And, in so holding, the Black Court
directly contrary to ACLA’s argument here—applied no
heightened, “extreme care” threats standard and did not cite
Claiborne Hardware. 538 U.S. at 363. Petitioners’ Claiborne
Hardware argument provides no basis for review.
B. Petitioners’ Proposed Subjective Intent
Requirement for “True Threats” Presents
No Issue For Review Because Subjective
Intent Was Found In This Case
ACLA once again asks this Court to grant review in
order to change First Amendment law in all cases to require
subjective intent for “true threats”—a standard that was, in any
event, met in this case.'’ ACLA bases this renewed request on
i
'
ACLA’'s petition makes clear that tts proposed subjective intent
requirement would derive not trom any statute but rather from the First
Amendment. (Pet. 14-15.) Thus, adoption of a subjective intent
16
a misreading of this Court’s decision m Black and a
: . ~: . 18
misunderstanding of its impact here.
In Black, this Court held that Virginia’s ban on cross
burning with an intent to intumidate did not violate the First
Amendment. 538 U.S. at 347-48. The Black Court reaffirmed
that “true threats” are unprotected by the Constitution and
explained that “‘[t}rue threats’ encompass those statements
where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” As it did m a supplemental
brief filed on the prior petition, ACLA now points to this
language as somehow imposing a subjective-intent requirement
for threats as a matter of First Amendment law. (Pet. 14-15.)
As the Solicitor General noted in opposing ACLA’s first
petition, however, the Black Court “was not asked to (and did
not) decide whether the true threats standard is an objective one
or a subjective one (or both).” (Resp. App. 21a n.6.)
standard in this case would make subjective intent the constitutional
intent requirement for all threats statutes, including those that proscribe
threats against the President and contained in anti-terrorism laws. See
supra note 16. Defendants in all of these contexts would contend that
they are engaging in protected political speech
ACLA’s argument that the Court should adopt a subjective intent
requirement for true threats also was not properly preserved below.
Petitioners supposedly “preserved for appeal” a specific intent argument
by including a specific intent jury charge in a mass of proposed jury
instructions that contained contradictory instructions on the standard of
intent. But, petitioners never argued that the trial court should give the
instruction. Instead, at the final charge conference, ACLA’s lead
counsel stated with respect to the “true threats” instruction: “Yes, I
never saixi—lI never said the test should be changed.... I am not
arguing, your Honor, that the test should be changed.”’ (1/25/99 Tr
3123.) Simply submitting a proposed instruction stating it is ‘preserved
for appeal” is insufficient under well-settled rules of preservation. Fed
R. Civ. P. 51, see, ¢.g., Monroe v. City of Phoenix, 248 F.3d 851, 858-59
(9th Cir. 2001)
17
And, even more significantly—as the en banc Ninth
Circuit majority made abundantly clear and ACLA ignores—the
jury in this case found specific intent and for this reason, as the
Solicitor General stated, “| t]his case is not a suitable vehicle to
address... whether... the definition of a true threat should
include a subjective as well as an objective component.” (Pet.
App. LO1; Resp. App. 15a.) As Judge Rymer’s opinion for the
en banc court explains, the Jury instructions for the statutory
elements of FACE—which ACLA ignores entirely—required a
finding of intent to mtumidate (with intimidation specifically
defined to mean by threats of bodily injury) and thus satisfied
any subjective intent standard. (Pet. App. 101 (noting that a
subjective intent standard “is subsumed within the statutory
standard of FACE itself, which requires that the threat of force
be made with the intent to intimidate”).)'’ Thus, this Court
should not review ACLA’s subjective-intent question because it
would have no impact on this case. (Resp. App. [5a (“The court
of appeals’ refusal to incorporate into its true threats standard a
requirement that the speaker intended to make a threat could not
have affected the outcome of this case. The FACE Act, the
statute under which petitioners were held liable for their threats,
requires that the defendant act with the intent to injure,
intimidate, or interfere with a person, and the jury was
instructed in accordance with that requirement.”).)”°
19
ACLA contends that the “intent to inumidate” found by the jury may
have been only a “generalized” intent to intimidate and not a “specific
intent to threaten violence to be committed by the speaker,” which it
claims is required by Black. (Pet. 16.) This is not so, as intumidation is
explicitly defined in FACE (and in the jury instructions) to be limited to
threats of bodily harm. 18 U.S.C. § 248, (see also Resp. App. 22a (“An
intent to intimudate—defined by the district court as “to place a person in
reasonable apprehension of bodily harm—is virtually identical to an
intent to threaten.’’).)
Nor is ACLA’s argument that the Ninth Circuit erred in not considering
the impact of Black (or Scheidler v. National Organization for Women,
Inc., 537 U.S. 393 (2003), see infra pp. 24-27) of any merit. As the
18
Indeed, although ACLA asserts that a circuit conflict
now exists on the subjective-intent question after Black, the very
case that it relies on in an attempt to prove this conflict—the
Ninth Circuit's decision in United States v. Cassel, 408 F.3d
622 (9th Cir. 2005)—not only would present a nonreviewable
intra-circuit conflict but actually undermines any argument for
certiorari review by expressly recognizing that the adoption of a
subjective-intent requirement would not affect the outcome of
this case. As the Cassel court stated, because “in Planned
Parenthood . . . the statute in question contained an explicit
requirement of intent to threaten (Fr ‘intent to intimidate’),” any
subjective-intent requirement was satisfied by the jury’s finding
that each defendant was liable under FACE. /d. at 630
(emphasis added); see also United States v. Stewart, 420 F.3d
1007, 1017 (9th Cir. 2005) (post-Cassel, holding that any
subjective-intent standard for true threats was met by the intent
Ninth Circuit explained, under the rule of mandate, the only issue open
on the second appeal after remand was the jury’s awards of punitive
damages—and thus the only supervening Supreme Court decision of any
relevance was State Farm Mutual Automobile Insurance Co. v
Campbell, 538 U.S. 408 (2003), which was fully considered by the
courts below. (Pet. App. 32-34.) The cases cited by ACLA are
inapposite. (Pet. 15-17.) Both United States v. Wells, 519 U.S. 482, 488
n.4 (1997), and Fogel v. Chestuitt, 668 F.2d 100, 109 (2d Cir. 1981),
address the law of the case doctrine, not the rule of mandate. (ACLA’s
claim that Wells deals with the rule of mandate is just wrong and appears
to be a (rather clumsy) attempt to mislead the Court. Even a cursory
review of the Wells decision—indeed of the very footnote ated by
ACLA—demonstrates this. Wells, 519 U.S. at 487 & n4.) And,
ACLA’s claim that Arthur Andersen LLP v. United States, 125 S.Ct
2129 (2005), somehow “compels a new trial” here is wholly misguided
(Pet. 18.) In Arthur Andersen, this Court considered the “elements of a
‘corrup|t) persuas|ion}* conviction” under 18 U.S.C. § 1512(b). Id. at
2132. Plamly, this interpretation of a federal obstruction of justice
statute has no bearing on the intent standard for “true threats” under the
First Amendment. See id. at 2135.9 (noung that this interpretation of §
1512¢b) does not even control the intent element for other federal
obstrucuion statutes)
19
element of the statute in question there, which punishes only
certain categories of threats made with the intent to “impede,
intimidate, interfere with, or retaliate’”).~' This Court’s review
of what, m any event, would be an mntra-circuit conflict is,
therefore, plainly unwarranted. See Rogers v. United States,
522 U.S. 252, 259 (1998) (dismissing writ as improvidently
granted where “the record does not fairly present. the
question”).””
cs ACLA Was Not Held Liable For
“Generating Fear” of Third-Party
Violence—It Was Held Liable For Its Own
True Threats of Violence
ACLA also contends—as it did without success on its
first petition—that the en banc Ninth Circuit’s decision conflicts
with Brandenburg v. Ohio, 395 U.S. 444 (1969), by allegedly
finding petitioners liable for “‘generating fear’ of third-party
violence, rather than direct threats of violence.” (Pet. 19-24.)
This is clearly not so and provides no basis for certiorari review.
This is not an incitement case. ACLA was held liable
not for inciting acts by others or for “‘generat[ing] fear’ of third-
party violence that never followed,” but for its own threats of
“— Intra-circuit conflict is not a basis for Supreme Court review. S.Ct. R
10; Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).
“Although ACLA’s petition does not seek review of the scope of the
injunction, in a footnote ACLA suggests that the injunction’s specific
intent requirement for restrained future conduct somehow supports
petitioners’ position. (Pet. 15 n.7.) This makes no sense. As the en
banc majority held, the terms of the injunction are “finely tuned and
exceedingly narrow” in order to “leave[] huge room for ACLA to
express its views.” (Pet. App. 126.) The district court’s abundance of
caution in crafting the injunction clearly satisfies this Court’s precedents
reconciling iaportant protections afforded by injunctions with the
expressive rights of the enjoined party. (Ud. at 125-126), see Madsen,
$12 US. at 765
20
violence. Brandenburg—which governs incitement—thus has
no relevance here. As the Solicitor General emphasized:
“Brandenburg was not... athreats case. This Court has never
suggested that true threats should be subject to Brandenburg’ s
imminence requirement; to the contrary, the Court has
characterized true threats and incitement as separate categories
of proscribable expression.” (Resp. App. 23a (citing Black, 538
U.S. at 359).) Indeed, recognizing this very distinetion, ACLA
urged the district court to instruct the jury on the difference
between threats and incitement—and received the precise
instruction it requested. (Resp. App. 29a-30a; Pet. App. 165-
66.)
ACLA’s contention that its statements incited no
violence (Pet. 21-22) is thus wholly beside the point. “True
threats” are proscribable if—as here—they are directed at
specific targets whom the speaker should foresee would take the
Statements as a serious expression of an imtent to do bodily
harm. (Pet. App. 126.) That violence was not “incited” (even if
true) is irrelevant to a threats analysis. True threats are
proscribed to protect “individuals from the fear of violence,
from the disruption that fear engenders, and from the possibility
that the threatened violence will occur.” R.A.V. v. City of St.
Paul, 505 U.S. 377, 388 (1992); accord Black, 359 U.S. at 360.
Indeed, if a threatener’s words provoke enough fear, physical
violence—by anyone—to carry out the threat is unnecessary, as
the threatener’s terrorist purpose is accomplished. See, e.g.,
United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir.
1985).7°
Nor does this case present any common issue—much less a conflict—
with Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). There,
this Court struck down a statute that prohibited simulated child
pornography, holding that the connection between the speech at issue
and the harm it may cause was too “contingent and indirect” to justify
suppression. 535 U.S. at 1401-03. Thatis not what this case is about.
21
Further, to the extent ACLA is arguing what Judge
Kozuiski argued in his en banc dissent (as well as in his original
three-judge panel opinion)—i.e., that the evidence does not
establish that petitioners’ posters and list conveyed the message
that petitioners themselves would inflict bodily harm on
Physicians (Pet. App. 129)—that argument also provides no
basis for this Court’s review. As noted above, Judge Kozinski’s
dissent took issue not with the en banc majority’s articulation of
the applicable legal standard, but with its application of that
standard to the facts of this case. (/d. at 128-30.) Indeed, upon
independent review of the factual record, the en banc majority,
like the jury, found that Judge Kozinski’s proposed standard
was met—and that the evidence demonstrated that petitioners,
not third parties, would be the source of the threatened harm on
Physicians. (E.g., id. at 75 (“the jury must have found that
ACLA made statements to intimidate the [P]hysicians,
reasonably foreseeing that [P|hysicians would interpret the
statements as a serious expression of ACLA’s intent to harm
them” (emphasis added).)* The dissenting Ninth Circuit
judges—and ACLA, to the degree it now makes this same
ACLA’s posters were found to be true threats to kill because ACLA
knew that the posters would be perceived as a serious expression of an
intent to do bodily harm to Physicians. (Pet. App. 119-23.) Threats
simply were not al issue in Free Speech Coalition
The evidence was substanual on tis issue. ACLA issued its posters
with knowledge of the preceding posters and murders, and Physicians
“could well believe that ACLA would make good on the threat.” (Pet.
App. 120-22 (emphasis added).) The verdict form showed the jury’s
finding that each of the three statements “is a Que threat by one or more
of the defendants to bodily harm, assault or kill one or more of the
plaintiffs.” (Ud. at 429.) Physicians also testified that they feared these
defendants. Dr. Hern, for example, testified that ACLA’s hit lists said
“do what we tell you to do, or we will kill you. And they do.”” “This 1s a
hit list and that these people who made this list will kill me.” “1 am
fearful for my life, that I am afraid that—that someone from the group
that put out this poster would be there and would kill me.” (Tr. 639,
664, Pet. App. 80 (emphases added). )
Nm
mW
arguiment—simply take a different view as to what the evidence
in this case shows. (/d. at 129.) Like every other question
presented by ACLA’s petition, this sort of factbound
disagreement over the evidence does not warrant certiorari
review. NLRB v. Hendricks County Rural Elec. Membership
Corp., 454 U.S. 170; 177 n.8 (1981) (“we are presented
primarily with a question of fact, which does not merit Court
review.”).”
II. PETITIONERS’ FACTBOUND CHALLENGE
TO THE REMITTED PUNITIVE DAMAGES
AWARDS DOES NOT MERIT REVIEW
Since the time of ACLA’s first unsuccessful certiorari
petition, the Ninth Circuit, applying this Court’s precedents,
including State farm, has drastically reduced the punitive
damages awards in this case from $108.5 million to $4.7
million. (Pet. App. 2, 30-31.) ACLA contends that even this
amount is too much—that, under State Farm, “punitive damages
may not be assessed absent truly reprehensible conduct and
adequate notice that such a penalty was in the offing” and that,
therefore, ~“‘[a]t a minimum,” the entire award should be
stricken. (Pet. 24-26.) As the petition makes plain, however,
ACLA’s real complaint is not with the legal standard applied by
In a footnote, ACLA makes the undeveloped argument that the court of
appeals “departed from this Court’s requirement of de novo review of
the record in First Amendment cases.” (Pet. 24 n.13.) This is just
wrong. As is clear from its opinion, the en banc majority “review[ed]
the evidence on true threats independently” (Pet. App. 120), adhering to
the standard of appellate review on First Amendment issues set out in
this Court’s decisions in Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485 (1984), Harte-Hanks Communications, Inc. v.
Connaughton, 49¢ U.S. 657 (1989), and Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Even the
dissenting Ninth Circuit judges agreed that the majority articulated the
appropriate standard of independentreview. (Pet. App. 129; see also id.
at 175 n.15.) As did the Solicitor General. (Resp. App. 25a.)
23
the Ninth Circuit, but with a result other than no damages. This
is not a basis for this Court’s review. See S. Ct. R. 10.°
The court of appeals articulated this Court’s three-prong
test for evaluating the constitutionality of punitive damages
awards under the Due Process Clause—which ACLA does not
(and cannot) challenge. (Pet. App. 7; Pet. 24-26.) The court
then found ACIL.A’s conduct to be “particularly reprehensible”’
and thus expressly rejected the argument that no punitive
damages should be awarded in this case. (Pet. App. 15-26, 27
(noting that “ACLA made no bones about its mitent to mtimidate
these in the reproductive health services community by true
threats of serious injury or death’).) The Ninth Circuit held that,
under this Court’s case law (which, again, ACLA does-not _
challenge), a9 to | ratio of punitive to compensatory damages
was the appropriate balance in this case—thus dramatically
remitting the awards, in petitioners’ favor, by $103.8 million.
(id. at 28-29.) ACLA’s wish that the award had been reduced
even more is no basis for certiorari review.”
ACLA has failed to include a punitive-damages argument in the
Questions Presented in the petition. This alone is enough to defeat
certiorari review. See S.Ct. R. 14.1(a) (Only the questions set out in
the petition, or fairly included therein, will be considered by the
Court.”); Zoyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 202
03 (2002) (holding that a question not presented in the petition was “not
properly before” the Court).
Indeed, if anything, the punitive damages awards should be higher. The
court of appeals gave no consideration to the potential and noneconomic
harms suffered by Physicians, and it expressly rejected Physicians’
position, which had been the view adopted by the district court, as to
how properly to formulate the applicable ratios in this multi-defendant
case. (Pet. App. 15-29.) After the Ninth Circuit’s decision, some
respondents are left with very little in the way of monetary damages.
(F.g. id. at 31 (reducing the punitive damages awarded to respondent
Dr. James Newhall from $14 million to $3,375).) This result clearly
does not provide grounds tor petitioners” request for review by this
Court.
24
PETITIONERS’ OTHER ARGUMENTS
PRESENT NO PRESERVED LEGAL ISSUE FOR
SUPREME COURT REVIEW
A. Petitioners Have Failed To Preserve Their
RICO Arguments
- ACLA contends that the Ninth Circuit—on the second
appeal followimg remand-—erred in not reconsidering the RICO
liability judgment, which had been affirmed in its entirety, in
light of this Couri’s decision in Scheidler v. National
Organization for Women, Inc., 537 U.S. 393 (2003) (“‘Scheidler
IT’), which was decided between ACLA’s first and second
appeals to the Ninth Circuit.°° ACLA failed properly to
preserve this argument, however, and it therefore is barred by
waiver principles, the mandate rule, and the law of the case
doctrine. (Pet. App. 31-34); see In re Sanford Fork & Tool Co.,
160 U.S. 247, 255 (1895).(mandate rule); Kesselring v. F/T
Arctic Hero, 95 F.3d 23, 24-25 (9th Cir. 1996) (issues not raised
on first appeal are waived); United States v. Hylton, 294 F.3d
130, 135 (D.C. Cir. 2002) (“A legal decision made at one stage
of litigation, unchallenged in a subsequent appeal when the
opportunity to do so existed, becomes the law of the case for
future stages of the same litigation, and the parties are deemed
to have waived the right to challenge that decision at a later
time” (quoting Williamsburg Wax Museum, Inc. v. Historic
Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987)) (internal
quotation marks omitted).). Indeed, this very argument was
made on ACLA’s first petition by one of petitioners’ amici.
This Court properly declined review then; it should do the same
now.
28 ; ’
The limited remand as to punitive damages concermed only the FACE
judgment, as punitive damages are not available—and were not
sought— under RICO. (Pet. App. 34, 75.)
Nm
v1
Although petitioners raised several RICO and Hobbs-
Act arguments in their motions for summary judgment, at trial,
in Rule 50 motions at the close of all evidence, and on their first
Ninth Circuit appeal, petitioners—despite their knowledge of
the ongoing proceedings in Scheidler—never raised the
argument that they had not “obtained” Physicians’ property for
purposes of Hobbs- Act extortion after the district court rejected
this argument at the motion-to-dismiss stage. (See Pet. App.
381-83.) The jury in this case was instructed on the RICO claim
without any argument by petitioners as to the “obtamimg”’
element of the Hobbs Act. (See Resp. App. 73a, 81a.) It was
not until the punitive-damages remand in 2003—seven years
after the: district court’s decision on the motion to dismiss and
ten years after this Court first noted this Hobbs- Act “obtaining”’
argument at oral argument in National Organization for Women,
Inc. v. Scheidler, 510 U.S. 249 (1994) (“Scheidler T°), see
Transcript of Oral Argument, 1993 WL 757635, at *13-16, 21-
24, 27-28, 36 (Dec. 8, 1993), that petitioners sought yet another
bite at the apple. When ACLA sought to raise this Hobbs- Act
argument on its second appeal to the Ninth Circuit, the panel
properly held that any challenge to the final RICO liability
judgment was precluded. (Pet. App. 32-34.)
ACLA’s apparent suggestion that it could not waive the
“obtaining” argument because Scheidler I] was not handed
down until after the trial and first appeal in this case is
meritless.~” As the Court stated in Ackermann v. United States,
340 U.S. 193, 198 (1950):
Petitioner cannot be relieved of [his] choice [not
to appeal from a court holding on a specific
issue] because hindsight seems to indicate to him
that [this] decision . . . was probably wrong,
Like Black, Scheidler ll was decided before this Court denied ACLA’s
first cerlioran peution
26
considering the outcome of the [intervening]
Keilbar case. There must be an end to litigation
someday, and free, calculated, deliberate choices
are not to be relieved from
See also Hylton, 294 F.3d at 135; Clifton v. Attorney Gen. of
Cal. , 997 F.2d 660, 664 n.5 (9th Cir. 1993) (noting that even if a
supervening Supreme Court decision has authoritatively
changed the law on a specific issue, relief should not be
permitted where, as here, “‘a party has made a deliberate choice
not to pursue an appeal” from a determination of the trial court
on that issue); Title v. United States, 263 F.2d 28, 31 (9th Cir.
1959) (same).
At deast as early as 1993 (when the Hobbs Act
“obtaining” argument was a subject of this Court’s oral
argument in Scheidler I, see Transcript of Oral Argument, 1993
WL 757635, at **13-16, 21-24, 27-28, 36) or 1995 (when, on
remand, the district court in Scheidler expressly addressed the
“obtaming” argument in a published opinion, National
Organization for-Women, Inc. v. Scheidler, 897 F.Supp. 1047,
1075 n.20 (N.D. IIL 1995)) ACLA was clearly on notice of the
“obtaming” argument. ACLA’s failure to raise the argument at
trial or on its first appeal is without justification or excuse.
That appeal concluded with a final decision on the RICO claims
in this case, with a remand solely as to punitive damages under
FACE. Following that limited remand, the Ninth Circuit
properly denied ACLA’s request to re-open the RICO
judgment.”
In a few passing sentences, ACLA also asserts that Physicians’ RICO
claims fail for lack of “standing” because Physicians have not proven
“an injury to ‘business or property” as required for standing under
RICO.” (Pet. 27.) This undeveloped argument, too, is meritless—the
jury specifically found such injury to property under RICO and the
Hobbs Act (Pet. App. 430-444)—and such a factbound disagreement
with the jury’s findings provides no basis for this Court’s review. In
27
Indeed, this case demonstrates precisely why the
preservation doctrine exists. Unlike the defendants in Scheidler,
ACLA failed to raise this “obtaining” argument at trial when ~
Physicians could have pursued other RICO predicate acts had
ACLA challenged the RICO claims. Such other predicate acts
are not precluded by Scheidler I’s ruling as to the meaning of
extortion under the Hobbs Act. (Pet. App. 381-385.)"!
B. Petitioners Have Failed To Preserve Their
Standing Argument
ACLA argues that the respondent health clinics (Planned
Parenthood of the Columbia/Willamette, Inc. and Portland
Feminist Women’s Health Center) lacked standing to sue and
that the Court should therefore remand to the Ninth Circuit with
“instructions to dismiss the clinics’ claims and vacate the
damages awards in their favor. (Pet. 28-29.) But the district
court rejected this precise standing argument as a matter of law
on summary judgment, and the jury rejected the argument on the
facts at trial when it awarded the clinics distinct damages
pursuant to instructions that are not challenged here. (Pet. App.
330-331, 430-444.) ACLA admits that it did not raise the
argument On its first Ninth Circuit appeal. (Pet. 28.) It plainly
is barred. (Pet. App. 28-29.) Moreover, like the Hobbs-Act
argument just discussed, this standing argument was raised by
one of ACLA’s amici on the first petition, and this Court
correctly did not grant review. See supra note 3.
addition, this argument was raised by one of ACLA’s amici on the first
peutuion, and this Court properly declined review. Seesupra note 3.
It should be noted that a new trial on the RICO claims alone, rather than
dismissal, is the very most ACLA could attain (and, of course, it cannot
attain even this, for the reasons noted above). It would be unfair to give
ACLA the right to reargue waived points without providing Physicians
the concomitant benefit of how they would have proceeded against
ACLA in light of the ruling in Schetdler IL.
28
ACLA erroneously contends that its standing argument
somehow is a nonwaivable issue of subject-matter jurisdiction
that should be considered now. (Pet. 28.) But, as the district
court made clear, the standing argument presented by ACLA
requires an analysis into the respondent clinics’ underlying
factual claims Of liability under FACE and RICO—which
makes ACLA’s argument one of statutory, not constitutional,
standing. (Pet. App. 330-31); see also Lerner v. Fleet Bank,
N.A., 318 F.3d 113, 129 (2d Cir. 2003) (“{iJn evaluating whether
a plaintiff has standing under RICO, the court must
‘evaluate the plaintiffs harm, the alleged wrongdoing by the
defendants, and the relationship between them’” and that
because such af examination 1s “sufficiently intertwined with
the merits of the RICO claim,” “RICO standing is not a
jurisdictional issue” (quoting Associated Gen. Contractors v.
Cal. State Council of Carpenters, 459 U.S. 519, 535 (1983)))
In any event, even if ACLA’s standing argument implicated
Article II] (and it does not), it would still be precluded now.
(Pet. App. 32-34); see also Ferreira v. Borja, 93 F.3d 671, 674
(9th Cir. 1996) (law of the case applies to jurisdictional rulings)
At bottom, ACLA’s only disagreement here is with the
jury’s application of the evidence in this case to the statutory
standards of FACE and RICO under which the jury was
instructed. (See Pet. App. 420 (“To find for a particular plaintiff
on the FACE claim, you must find . . . that the plaintiff was
aggrieved or harmed by that threat.’”’”); Resp. App. 30a-33a
(instructing jury that it must find that defendant’s violation
specifically caused the plaintiff's injury to award that plaintiff
any damages under FACE or RICO); see also Pet. App. 330-31
(rejecting defendants’ standing arguments when “at trial each
plaintiff will be required to prove that a reasonable person in
that plaintiff's position would have felt threatened by the
defendants’ statements in the context in which the statements
were made” and “each plaintiff must prove pecuniary loss’’).
Based upon its view of the evidence at trial, the jury found that
petitioners caused each clinic respondent distinct damages as a
29
result of the threats at issue. (Resp. App. 30a-33a; Pet. App.
429-44.) ACLA’s continuing factbound dispute with the jury’ s
verdict is not a basis for certiorari review. S. Ct. R. 10.
a Petitioners Have Failed To Preserve Their
FACE Conspiracy Argument
Finally—-just as it did unsuccessfully on its first
petition—ACLA argues that this Court should order a new trial
on Physicians’ FACE claim because the jury was allowed to
consider a “non-existent” claim for conspiracy to violate FACE.
(Pet. 29-30.) But, not only did ACLA fail ever to raise this
argument in the district court, ACLA’s own proposed jury
instructions and jury verdict form actually included a FACE
conspiracy claim. (Resp. App. 37a-67a, 7la-72a, 78a-80a.)
Thus, the en banc Ninth Circuit properly rejected the argument
on preservation grounds, (Pet. App. 112 n.16 (“declin[ing] to
consider the issue because it is raised for the first time on
appeal” and noting that “|ACLA] had every opportunity to
assert this view in the district court before judgment, having
moved to dismiss, for summary judgment, and for judgment asa
matter of law as well as having objected to proposed
instructions (but not on conspiracy)”’). )
Petitioners’ assertion that they are raising a nonwaivable
matter of subject-matter jurisdiction is nonsense. The question
whether civil conspiracy claims are permissible under FACE is
one that goes to whether Physicians have stated a claim—it does
not iivolve the Court's subject matter jurisdiction. See, e.g.
Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1244 n.10 (2006)
(citing Bell v. Hood, 327 U.S. 678 (1946)).
In sum, ACLA’s argument concernmg Physicians’
FACE conspiracy claim has not been properly preserved or
30
developed and, accordingly, is not a basis on which this Court
a *
should grant review:
CONCLUSION
The petition for a writ of certiorari should be denied.
Dated: March 27, 2006
Respectfully submitted,
Maria T. Vullo
Counsel of Record
William J. Taylor, Jr.
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
Attorneys for Respondents
Carol J. Bernick, Esq.
DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue
Portland, Oregon 97201
(503) 241-2300
Roger K. Evans, Esq.
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.
434 West 33rd Street 2
New York, New York 10001
(212) 541-7800
As the en banc Ninth Circuit noted, “FACE came into being in part
because of ‘organized,’ ‘concerted’ campaigns by ‘groups’ to disrupt
access to reproductive health services... .” (Pet. App. 112. n.16 (quoting
S. Rep. No. 103-117, at 6-7).) Thus, despite ACLA’s argument that
plain error has taken place here, the Ninth Circuit correctly found to the
contrary. (d. at 112 n.16.)
App. 55
Gore, 517 U.S. at 582-83, 116 S.Ct. 1589 (bracketed mate-
rial in original; citations omitted).
In State Farm, the Supreme Court further elaborated
on the ratic guidepost, stating:
We have been reluctant to identify concrete con-
stitutional limits on the ratio between harm, or
potential harm, to the plaintiff and the punitive
damages award. * * * We decline again to impose
a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the
principles it has now established demonstrate,
however, that, in practice, few awards exceeding
a single-digit ratio between punitive and com-
pensatory damages, to a significant degree, will
satisfy due process. * * *
Nonetheless, because there are no rigid
benchmarks that a punitive damages award may
not surpass, ratios greater than those we have
previously upheld may comport with due process
where “a particularly egregious act has resulted
in only a small amount of economic damages.”
** * [A] higher ratio might be necessary where
the injury is hard to detect or the monetary value
of noneconomic harm might have been difficult to
determine. * * * The precise award in any case,
of course, must be based upon the facts and cir-
cumstances of the defendant’s conduct and the
harm to the plaintiff.
In sum, courts must ensure that the meas-
ure of punishment is both reasonable and propor-
tionate to the amount of harm to the plaintiff
and to the general damages recovered.
State Farm, 123 S.Ct. at 1524 (internal citations omitted).
App. 56
Accordingly, the relevant inquiry is whether, in view
of each defendant’s conduct toward these plaintiffs, the
punitive damages awards are reasonable and proportion-
ate to the amount of harm each defendant caused. Before
addressing that issue, however, I must decide two prelimi-
nary issues. The first is whether each plaintiff is entitled
to 14 separate judgments for the same compensatory
damages, or the compensatory awards are joint and
several as to all defendants. Second, I must decide which
proposed comparison of compensatory damages to punitive
damages, defendants’ or plaintiffs’, yields the appropriate
ratio for purposes of my review.
With respect to the first issue, it should be beyond
cavil that the compensatory awards in this case against
these joint tortfeasors and co-conspirators are joint and
several,’ and I so find. See, e.g., U.S. v. Gregg, 226 F.3d
253, 257-60 (3rd Cir.2000) (“Congress intended FACE’s
compensatory statutory damages be awarded per violation
and jointly and severally among defendants”). In calculat-
ing the compensatory damages awards in this case, the
jury appears to have carefully considered each plaintiff’s
damages, then awarded that same amount against each
individual defendant. The verdicts thus leave no room for
a credible debate that the compensatory damages awards
were anything but joint and several, and plaintiffs do not
now contend and never have contended that they are
entitled to recover multiple separate compensatory dam-
age judgments.
* Liability is joint and several when “‘the creditor may sue one or
more of the parties to such liability separately, or all of them together,
at his for her] option.’” U.S. v. Gregg, 226 F.3d 253, 260 (3rd Cir.2000)
citation omitted). '
App. 57
This brings me to the second issue, what is the appro-
priate comparison for purposes of determining ratios.
Defendants assert that the only fair calculation is to
compare the compensatory damages recoverable by each
plaintiff with the total punitive damages awarded each
plaintiff against all defendants. See Defendants’ Reply
Memorandu.n, p. 17. That comparison yields ratios of
compensatory damages to punitive damages, by plaintiff,
as follows: Crist (366:1); Hern (901:1); E. Newhall (886:1);
J. Newhall (37,333:1); Planned Parenthood (73:1); and
Portland Feminist (467:1). See Defendants’ Reply Memo-
randum, p. 17.
Plaintiffs, in turn, propose an approach that compares
the total joint and several liability of each defendant
($526,336.14) to the total punitive damages awarded
against that defendant. That comparison yields ratios of
compensatory damages to punitive damages, by defendant,
as follows: ACLA (31.8:1); ALM (31.8:1); Bray (15.2:1);
Burnett (15.2:1); Crane (15.2:1); Dodds (9.5:1); Dreste (9.5:1);
Foreman (9.5:1); McMillan (15.2:1); Murch (9.5:1); Ramey
(6.65:1); Stover (6.65:1); Treshman (15.2:1); and Wysong
(15.2:1). See Plaintiffs’ Memorandum in Response, p. 8.
A third possible approach, not proposed by either side,
would be to compare each plaintiff’s individual compensa-
tory damages and punitive damages awards as to each
defendant. This approach yields extreme variations in
ratio, depending on the amount of the compensatory
award. Thus, the ratios with respect to plaintiff Crist,
calculated in this manner, range from a high of 56.7:1
(ACLA and ALM) to a low of 12.6:1 (Ramey and Stover);
for plaintiff Hern, a high of 103.9:1 (ACLA and ALM) to a
low of 34.65:1 (Ramey and Stover); for plaintiff E. New-
hall, a high of 126.6:1 (ACLA and ALM) to a low of 31.6:1
App. 58
(Ramey and Stover); for J. Newhall, a high of 5333:1
{ACLA and ALM) to a low of 1333.3:1 (Ramey and Stover);
for Planned Parenthood, a high of 14.78:1 (ACLA and
ALM) to a low of 1.85:1 (Ramey and Stover); and for
Portland Feminist, a high of 59.7:1 (ACLA and ALM) to a
low of 14.9:1 (Ramey and Stover).
I have carefully considered all three options, and
conclude that the fairest and most appropriate comparison
is that proposed by plaintiffs, which compares the aggre-
gate compensatory damages award against each defendant
with the aggregate award of punitive damages against
that defendant. This approach thus compares the joint and
several liability of each defendant for compensatory
damages with the defendant’s individual liability for
punitive damages, which comports with due process and is
the proper approach. See Bell v. Clackamas County, 341
F.3d 858, 867-68 (9th Cir.2003) (on remand, “trial court
should evaluate the degree of reprehensibility of each of
the defendant’s misconduct individually, as opposed to en
grosse”); Transgo, Inc. v. Ajac Transmission Parts Corp.,
768 F.2d 1001, 1024-25 (9th Cir.1985) (relevant ratio
calculated by comparing total compensatory damages for
which each defendant was jointly and severally liable with
the punitive damages awards against each individual
defendant).
Thus, the relevant ratios’ under my consideration are
as follows:
es 4
[he numbers have been rounded as appropriate.
Defendant Ratio
ACLA 31.8:1
ALM 31.8:1
Bray 15.2:1
Burnett 15.2:1
Crane 15.2:1
Dodds 9.5:1
Dreste 9.5:1
Foreman 9.5:1
McMillan 15.2:1
Murch 9.5:1
Ramey | 6.7:1
Stover 6.7:1
Treshman 15.2:1
Wysong 15.2:1
These ratios “can be contemplated while maintaining
normal respiration,” Lee v. Edwards, 101 F.3d 805, 811
(2nd Cir.1996), and are not unconstitutionally excessive.
This is particularly true in view of defendants’ egregious,
unrelenting, and unapologetic conduct. Moreover, the
above ratios compare only the damages plaintiffs were
able to prove at trial, and do not incorporate any potential
ongoing or future economic or noneconomic harm to them.
See the portions of the Amended Order and Permanent
Injunction set forth supra, in which I acknowledge plain-
tiffs’ ongoing harm.
This case presents the type of situation the Supreme
Court anticipated in Gore and State Farm, where a higher
App. 60
ratio can comport with due process where “a particularly
egregious act has resulted in only a small amount of
economic damages,” or “the injury is hard to detect or the
monetary value of noneconomic hk? ™m might have been
difficult to determine.” Gore, 517 U.S. at 582, 116 S.Ct.
1589; State Farm, 123 S.Ct. at 1524. Thus, in Mathias v.
Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir.2003),
the Seventh Circuit approved a compensatory to punitive
damage ratio of 37.2:1 where defendant motel deliberately
exposed its customers to a substantial risk of being bitten
by bedbugs: “The defendant’s behavior was outrageous but
the compensable harm done was slight and at the same
time difficult to quantify because a large element of it was
emotional.” 347 F.3d at 677. And in Swinton, supra, a race
discrimination in employment case, the Ninth Circuit
approved a compensatory to punitive damage ratio of 28:1
in view of “particularly egregious” acts and “noneconomic
harm that might have been difficult to determine.” Swin-
ton, 270 F.3d at 818 (citation and internal quote marks
omitted).
The present case was rife with evidence that plaintiffs
suffered harm from the conduct of these defendants, harm
that likely was difficult for the jury to quantify. Defen-
dants forced the plaintiffs, out of fear, to restructure their
lives and those of their children, to undertake various
security measures, to change their habits and routines,
and to view the world around them with suspicion. Much
more than the bedbug bites in Mathias, even more than
racial slurs and harassment in Swinton, the personal
harm to these plaintiffs caused by defendants’ threats of
violence might be difficult to quantify but justifies a higher
ratio in the award of punitive damages.
App. 61
In summary, I cannot say that the ratios in this case
are constitutionally excessive or “jar{] [my] ‘constitutional
sensibilities.” Swinton, 270 F.3d at 819 (quoting Haslip,
supra, 499 U.S. at 18, 111 S.Ct. 1032). I therefore find the
punitive damages awards, with respect to this guidepost,
to be reasonable and in proportion to the amount of harm
each defendant caused.
C. Comparable Penalties
The third indicium of “excessiveness” involves a
comparison between the punitive damages awards and the
civil penalties that could be imposed for comparable
conduct. State Farm, 123 S.Ct. at 1526 (noting that the
existence of a criminal penalty bears on the seriousness of
the conduct, but has limited utility in determining the
amount of the punitive award). In this regard, FACE
provides both criminal penalties’ and civil remedies for
each violation.
In action commenced by the United States Attorney
General or state attorneys general, the available civil
remedies include injunctive relief, compensatory damages
to the persons aggrieved, and civil penalties. As relevant,
the civil penalty for a first offense is $15,000, and $25,000
’ The criminal penalties can include prison time and criminal
fines. Offenses involving exclusively nonviolent physical obstruction
carry fines of not more than $10,000 and six months imprisonment for
the first offense, and fines of not more than $25,000 and 18 months
imprisonment for each subsequent offense. Offenses involving bodily
injury can bring prison terms of 10 years, and offenses involving death
can result in any term of vears up to life. See 18 U.S.C. § 248(b)
" Defendants’ threats do not qualify as “non-violent physical obstruc-
tion{s],” which carry lesser penalties. See 18 U.S.C. § 248(cX2)BXi) and (i).
App. 62
for each subsequent violation. 18 U.S.C. §§ 248(c)(2)(B)
and (c)(3)(B). Notably, in an action commenced by the
person or persons aggrieved, FACE places no limit on the
amount of compensatory or punitive damages that may be
recovered, but does provide for statutory damages in lieu
of actual damages in the amount of $5,000 per violation.
18 U.S.C. § 248(c)(1)(B).
In this case, defendants engaged in repeated viola-
tions of FACE by republishing the same threats over
several years’ time, from 1995 through at least early 1999.
Defendants unveiled the Deadly Dozen poster in Washing-
ton, D.C. in January 1995 and the Crist poster in August
1995, and revealed the so-called “Nuremberg Files,” in
hard copy form, at a January 1996 ACLA event in Wash-
ington, D.C. See Planned Parenthood, 41 F.Supp.2d at
1131-34. Plaintiffs commenced this action in October 1995;
despite plaintiffs’ allegations that defendants’ actions
involved true threats of violence, they continued to publish
and republish the posters and the Nuremberg Files until
this court issued the Order and Permanent Injunction on
February 25, 1999. See Planned Parenthood, 1999 WL
65450 (D.Or.1999).
Defendants’ suggestion that until the Ninth Circuit
issued its en banc decision in May 2002, they had “no”
notice that their conduct crossed the First Amendment
line is, at best, untenable. As the Ninth Circuit recounted
in the en banc decision,
By January 1995, ACLA knew the effect that
“WANTED,” “unWANTED,” OR “GUILTY” post-
ers had on doctors named in them. For example,
in a September 1993 issue of Life Advocate which
reported that an “unwanted” poster was being
prepared for |Dr.] Britton, ALM remarked of the
App. 63
{[Dr.} Gunn murder that it “sent shock waves of
fear through the ranks of abortion providers
across the country. As a result, many more doc-
tors quit out of fear for their lives, and the ones
who are left are scared stiff.” * * * Of another
doctor who decided to quit performing abortions
after circulation of a “Not Wanted” poster, Bray
wrote that “it is clear to all who possess faculties
capable of inductive analysis: he was bothered
and afraid.” Wysong also stated: “Listening to
what abortionists said, abortionists who have
quit the practice who are no longer killing babies
but are now pro-life. They said the two things
they feared most were being sued for malpractice
and having their picture put on a poster.” And
Burnett testified with respect to the danger that
“wanted” or “guilty” posters pose to the lives of
those who provide abortions: “I mean, if] was an
abortionist, I would be afraid.”
Planned Parenthood, 290 F.3d at 1065-66 (emphasis
added).
While the comparable civil penalties in FACE provide
some guidance in this court’s determination of the reason-
ableness of the punitive damages awards, they are a
starting point, not an upper limit. See State Farm, 123
S.Ct. at 1526 (suggesting that a reasonable punitive
damage award would be “at or near the amount of compen-
satory damages,” a figure 100 times the comparable civil
penalty of $10,000); see also Zhang v. American Gem Sea-
foods, Inc., 339 F.3d 1020, 1045 (9th Cir.2003) (upholding
$2.6 million punitive award where damages subject to
statutory cap of $300,000).
Turning to the punitive damages awards in this case,
and considering the awards individually by defendant and
App. 64
not in the aggregate, as defendants would desire, I cannot
say that the awards are excessive when compared to the
civil penaltiés available per FACE violation. As plaintiffs
aptly describe it, the evidence at trial left no doubt that
through use of the posters and Nuremberg Files, defen-
dants embarked on a “reign of terror” intentionally de-
signed to make the plaintiffs fear for their lives.
Defendants continued their unlawful threats throughout
the proceedings in this court and did so without apology,
even after the verdict was announced. See Plaintiffs’
Memorandum of Law in Further Support, p. 3 n. 2. Each
of defendants’ multiple publications qualify as “subsequent
violation{s]” of FACE; presumably, any civil penalties
imposed under FACE consequently would be substantial.
In summary, I cannot say that the jury’s awards of
punitive damages were grossly disproportionate or exces-
sive. I therefore conclude that the awards comport with
the due process requirements of the Fourteenth Amend-
ment and are proper.”
CONCLUSION
Defendants’ Motions on Remand (# 790) are DENIED.
Plaintiffs’ Motion to Strike (# 793) and defendants’ Motion
to Preclude Further Briefing (# 808) are DENIED as
* | acknowledge Judge Kozinski’s concern that as a result of the
liability verdict and punitive damages awards, defendants “will be
destroyed financially by a huge debt * * * [that] will * * * prevent them
from ever again becoming financially self-sufficient.” Planned Parent-
hood, 290 F.3d at 1101 (Kozinski, J., dissenting). As a practical matter,
however, these defendants either have no assets or long ago rendered
themselves judgment proof; thus, my review of the punitive damages
awards largely is academic. Indeed, despite tremendous post-judgment
collection efforts, plaintiffs’ recovery to date has been de minimus.
App. 65
MOOT. The jury awards of punitive damages are affirmed
in full.
IT IS SO ORDERED.
App. 66
539 U.S. 958, 123 S.Ct. 2637
Supreme Court of the United States AMERICAN COALI-
TION OF LIFE ACTIVISTS, et al., petitioners,
V.
PLANNED PARENTHOOD OF THE COLUM-
-BIA/WILLAMETTE, INC., et al. No. 02-563.
June 27, 2003.
Case below, 290 F.3d 1058.
Petition for writ of certiorari to the United States
Court of Appeals for the Ninth Circuit denied.
App. 67
290 F.3d 1058
United States Court of Appeals,
Ninth Circuit.
PLANNED PARENTHOOD OF THE
COLUMBIA/WILLAMETTE, INC.; Portland
Feminist Women’s Health Center; Robert Crist, M.D.;
Warren M. Hern, M.D.; Elizabeth Newhall, M.D.;
James Newhall, M.D., Plaintiffs-Appellees,
and
Karen Sweigert, M.D., Plaintiff,
V.
AMERICAN COALITION OF LIFE ACTIVISTS;
Advocates for Life Ministries; Michael Bray;
Andrew Burnett; David A. Crane; Timothy Paul Dreste;
Michael B. Dodds; Joseph L. Foreman; Charles
Roy McMillan; Stephen P. Mears; Bruce Evan Murch;
Catherine Ramey; Dawn Marie Stover; Charles Wysong,
Defendants,
and
Monica Migliorino Miller; Donald Treshman,
Defendants-Appellants.
Planned Parenthood of the Columbia/Willamette, Inc.;
Portland Feminist Women’s Health Center; Robert
Crist, M.D.; Warren M. Hern, M.D.; Elizabeth Newhall,
M.D.; James Newhall, M.D., Plaintiffs-Appellees,
and
Karen Sweigert, M.D., Plaintiff,
We
American Coalition of Life Activists; Advocates for
Life Ministries; Michael Bray; Andrew Burnett;
David A. Crane; Timothy Paul Dreste; Joseph L.
App. 68
Foreman; Stephen P. Mears; Monica Migliorino
Miller; Catherine Ramey; Dawn Marie Stover;
Donald Treshman; Charles Wysong, Defendants,
and
Michael Dodds; Charles Roy McMillan;
Bruce Evan Murch, Defendants-Appellants.
Planned Parenthood of the Columbia/Willamette, Inc.;
Portland Feminist Women’s Health Center;
Robert Crist, M.D.; Warren M. Hern, M.D.;
Elizabeth Newhall, M.D.; James Newhall, M.D.,
Plaintiffs-Appellees,
and
Karen Sweigert, M.D., Plaintiff,
V.
American Coalition of Life Activists; Advocates for
Life Ministries; Michael Bray; Andrew Burnett;
David A. Crane; Michael Dodds; Charles Roy McMillan;
Stephen P. Mears; Monica Migliorino Miller;
Bruce Evan Murch; Catherine Ramey;
Dawn Marie Stover; Donald Treshman, Defendants,
and
Timothy Paul Dreste; Joseph L. Foreman;
Charles Wysong, Defendants-Appellants.
Planned Parenthood of the Columbia/Willamette, Inc.;
Portland Feminist Women’s Health Center;
Robert Crist, M.D.; Warren M. Hern, M.D.;
Elizabeth Newhall, M.D.; James Newhall, M.D.,
Plaintiffs-Appellees,
and
Karen Sweigert, M.D., Plaintiff,
V.
App. 69
American Coalition of Life Activists; Advocates for
Life Ministries; Michael Bray; Andrew Burnett;
David A. Crane; Catherine Ramey; Dawn Marie Stover,
Defendants-Appellants,
and
Timothy Paul Dreste; Michael Dodds; Joseph L.
Foreman; Charles Roy McMillan; Stephen P. Mears;
Monica Migliorino Miller; Bruce Evan Murch;
Donald Treshman; Charles Wysong, Defendants.
Planned Parenthood of the Columbia/Willamette, Inc.;
Portland Feminist Women’s Health Center;
Robert Crist, M.D.; Warren M. Hern, M.D.:
Elizabeth Newhall, M.D.; James Newhall, M.D.,
Plaintiffs-Appellees,
V.
American Coalition of Life Activists; Advocates for
Life Ministries; Michael Bray; Andrew Burnett;
David A. Crane; Timothy Paul Dreste; Michael B. Dodds;
Joseph L. Foreman; Charles Roy McMillan;
Bruce Evan Murch; Catherine Ramey;
Dawn Marie Stover; Donald Treshman;
Charles Wysong, Defendants.
Paul deParrie, Movant-Appellant
Planned Parenthood of the Columbia/Willamette, Inc.;
Portland Feminist Women’s Health Center:
Robert Crist, M.D.; Warren M. Hern, M.D.; Elizabeth
Newhall, M.D.; James Newhall, M.D.; Karen Sweigert,
M.D., individually and on behalf of all persons
similarly situated, Plaintiffs-Appellees,
wi
American Coalition of Life Activists; Advocates for
Life Ministries; Michael Bray; Andrew Burnett;
David Crane; Timothy Paul Dreste; Michael Dodds;
App. 70
Joseph L. Foreman; Charles Roy McMillan;
Monica Migliorino Miller; Bruce Evan Murch;
Catherine Ramey; Dawn Marie Stover;
Donald Treshman; Charles Wysong,
Defendants-. ppellants.
Nos. 99-35320, 99-35325, 99-35327,
99-35331, 99-35333 and 99-35405.
Argued and Submitted En Banc Dec. 11, 2001.
Filed May 16, 2002.
As Amended on Denial! of
Rehearing En Banc July 10, 2002.*
Reinhardt, Circuit Judge, filed dissenting opinion in
which Kozinski, Kleinfeld, and Berzon, Circuit Judges,
joined.
Kozinski, Circuit Judge, filed dissenting opinion in
which Reinhardt, O’Scannlain, Kleinfeld and Berzon,
Circuit Judges, joined
Christopher A. Ferrara, American Catholic Lawyers
Ass’n Inc., Ramsey, NJ, for defendants-appellants Donald
Treshman and Monica Migliorino Miller
Stephen J. Safranek, Richard Thompson, and Edward
L. White, III], Thomas More Center for Law & Justice, Ann
Arbor, MI, for defendants-appellants American Coalition of
Life Activists, Advocates for Life Ministries, Andrew
Burnett, David Crane, Catherine Ramey, Michael Bray,
and Dawn Stover.
Maria T. Vullo, Paul, Weiss, Rifkind, Wharton &
Garrison, New York, NY, for plaintiffs-appellees Planned
* Judges KOZINSKI and O’SCANNLAIN voted to grant
App. 71
Parenthood of the Columbia/Willamette, Inc., Portland
Feminist Women’s Health Center, Robert Crist, M.D.,
Warren Hern, M.D., Elizabeth P. Newhall, M.D., and
James Newhall, M.D.
Robert M. O’Neil, for amicus curiae Thomas Jefferson
Center for the Protection of Free Expression, Charlottes-
ville, VA.
Paul deParrie, Portland, OR, amicus curiae pro se.
Michael H. Simon, Perkins Coie LLP, Portland, OR,
for amicus curiae ACLU Foundation of Oregon, Inc.
Susan M. Popik, Chapman, Popik & White, San
Francisco, CA, for amici curiae Feminist Majority Founda-
tion, Center for Reproductive Law and Policy, National
Abortion and Repreductive Rights Action League and
NARAL Foundation, National Abortion Federation,
National Coalition of Abortion Providers, National Organi-
zation for Women Foundation, NOW Legal Defense and
Education Fund, National Women’s Health Foundation,
Northwest Women’s Law Center, Physicians for Reproduc-
tive Choice and Health, and Women’s Law Project.
Eliot D. Prescott and Jane R. Rosenberg, Assistant
Attorneys General of Connecticut, for amici curiae Con-
necticut, Arizona, California, Colorado, Hawaii, Kansas,
Montana, Nevada, New York, Oklahoma, Oregon and
Washington.
Erwin Chemerinsky, University of Southern Califor-
nia Law School, Los Angeles, CA, for amici curiae Anti-
Defamation League, The American Jewish Committee,
Hadassah, the Women’s Zionist Organization of America,
Inc.
App. 72
William A. Norris, Akin, Gump, Strauss, Hauer &
Feld, L.L.P., Los Angeles, CA, for amicus American Medi-
cal Association.
Lawrence S. Lustberg, Gibbons, Del Deo, Dolan,
Griffinger & Vecchione, Newark, NJ, for amici curiae
Senator Charles E. Schumer, et al.
Appeals from the United States District Court for the
District of Oregon; Robert E. Jones, District Judge, Presid-
ing. D.C. No. CV-95-01671-REJ (District of Oregon).
Before: SCHROEDER, Chief Judge, and REINHARDT,
KOZINSKI, O'SSCANNLAIN, RYMER, KLEINFELD, HAW-
KINS, SILVERMAN, WARDLAW,~ BERZON, and
RAWLINSON; Circuit Judges.
Opinion by Judge RYMER; Dissent by Judge
REINHARDT; Dissent by Judge KOZINSKI; Dissent by
Judge BERZON.
RYMER, Circuit Judge.
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
App. 73
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 compi-
lation 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 consid-
ered. It defined a threat under FACE in accordance with
our “true threat” jurisprudence, as a statement made
' We refer collectively to the plaintiffs as “physicians” unless
reference to a particular party is required. In addition to FACE, the
case went to trial on claims that the same conduct violated the Racket-
eer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962
(except that ACLA was alleged to be the RICO enterprise and was not a
defendant on this clairn), and on claims that the defendants conspired
to violate FACE and RICO. As each claim turns on whether there were
true threats without constitutional protection, the appeal and our
opinion focus only on FACE.
* Michael Bray, Andrew Burnett, David A. Crane, Timothy Paul
Dreste, Joseph L. Foreman, Stephen P. Mears, Monica Migliorino
Miller, Catherine Ramey, Dawn Marie Stover, Donald Treshman, and
Charles Wysong. We refer to them collectively as “ACLA.”
App. 74
when “a reasonable person would foresee that the state-
ment 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 FSupp.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 stan-
dard 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 Cir2001). 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
' The court had previously denied ACLA’s motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)6). Planned Parent
hood of the Columbia/Willamette, Inc. v. ACLA (PPCW I), 945 F.Supp
1355 (D.Or.1996).
App. 75
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 physi-
cian 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 satis-
fied 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.
App. 76
I .
The facts are fully set out in the district court’s order
granting injunctive relief, PPWC JI], 41 F Supp.2d at 1131-
1155, and we shall not belabor them. In sum:
On March 10, 1993, Michael Griffin shot and
killed Dr. David Gunn as he entered an abortion
clinic in Pensacola, Florida. Before this, a
“WANTED” and an “unWANTED” poster with
Gunn’s name, photograph, address and other per-
sonal information were published. The “WANTED”
poster describes Gunn as an abortionist and invites
participation by prayer and fasting, by writing and
calling him and sharing a willingness to help him
leave his profession, and by asking him to stop
doing abortions; the “unWANTED” poster states
that he kills children at designated locations and
“[tlo defenseless unborn babies Gunn in [sic]
heavily armed and very dangerous.” After Gunn’s
murder, Bray and Paul Hill (a non-party who
was later convicted of murdering a different doc-
tor) prepared a statement supporting Griffin's
acquittal on a justifiable homicide theory, which
ALM, Burnett, Crane, Dodds, Foreman,
McMillan, Ramey and Stover joined.
On August 21, 1993, Dr. George Patterson, who
operated the clinic where Gunn worked, was shot to death.
A “WANTED” poster had been circulated prior to his
murder, indicating where he performed abortions and that
he had Gunn perform abortions for his Pensacola clinic.
In July 1994, Dr. John Bayard Britton was murdered by
Paul Hill after being named on an “unWANTED” poster that
Hill helped to prepare. One gives Britton’s physical descrip-
tion together with his home and office addresses and phone
numbers, and charges “crimes against humanity”; another
App. 77
also displays his picture and states that “he is considered
armed and extremely dangerous to women and children.
Pray that he is soon apprehended by the love of Jesus!!!”
In addition to these items, a third version of the Britton
“unWANTED” poster lists personal achievements and
Britton’s “crimes against humanity,” also warning that
“John Bayard Britton is considered armed and extremely
dangerous, especialy [sic] to women and children.” ALM,
Bray, Burnett, Crane, McMillan, Ramey and Stover signed
a petition supporting Hull.
Many pro-life activists in Operation Rescue con-
demned these acts of violence. As a result, ALM, Bray,
Burnett, Crane, Foreman, McMillan, Ramey and Stover,
who espoused a “pro-force” point of view, split off to form
ACLA. Burnett observed, “if someone was to condemn any
violence against abortion, they probably wouldn't have felt
comfortable working with us.” Organizational meetings
were held in the spring of 1994, and ACLA’s first event
was held in August 1994. ACLA is based in Portland,
Oregon, as is ALM. ALM publishes Life Advocate, a maga-
zine that is distributed nationally and advocates the use of
force to oppose the delivery of abortion services. Except for
Bray, who authored A Time to Kill and served time in
federal prison for conspiring to bomb ten clinics, the
individual defendants were directors of ACLA and actively
involved in its affairs. ALM commissioned and published
Bray’s book, noting that it “shows the connection between
the [justifiable homicide] position and clinic destruction
and the shootings of abortionists.” Wysong and ACLA also
drafted and circulated a “Contract on the Abortion Indus-
try,” having deliberately chosen that language to allude to
mafia hit contracts.
App. 78
ACLA presented the Deadly Dozen poster during a
January 25, 1995 press conference at the March for Life
event in Washington, D.C. Bray, Burnett, Crane, Dodds,
Foreman, McMillan, Murch, Ramey, Stover, Treshman and
Wysong were there; Dreste later ratified the poster’s
release. This poster is captioned “G™ILTY” at the top
(which meant the same thing to Crane, who drafted it, as
“wanted”), beneath which in slightly smaller print the
poster indicates “OF CRIMES AGAINST HUMANITY.”
The poster continues: “Abortion was provided as a choice
for East European and Jewish women by the (Nazi)
National Socialist Regime, and was prosecuted during the
Nuremberg Trials (1945-46) under Allied Control Order
No. 10 as a ‘war crime.” Under the heading “THE
DEADLY DOZEN,” the poster identifies thirteen doctors of
whom James Newhall, Elizabeth Newhall, and Warren
Hern are three. The poster provides Hern’s residence and
the home address of James Newhall and Elizabeth New-
hall; it also lists the name and home address of Dr. George
Kabacy, a doctor who provided abortions at PPCW. It offers
a “$5,000 REWARD” “for information leading to arrest,
conviction and_revocation of license to practice medicine.”
At the bottom the poster bears the legend “ABORTION-
IST” in large, bold typeface. The day after the Deadly
Dozen poster was released, the FBI offered protection to
doctors identified on it and advised them to wear bullet-
proof vests and take other security precautions, which
they did. Knowing this, ALM reprinted the poster in the
March 1995 edition of its magazine Life Advocate under a
cover with the “grim reaper” holding a scythe; Murch
printed it in his newsletter Salt & Light; and ACLA
republished the Deadly Dozen poster at events in August
1995 and January 1996.
App. 79
ACLA released the Crist poster along with five others
in August 1995 at the old federal courthouse in St. Louis
where the Dred Scott decision had been handed down.
Burnett, Crane, Dreste, McMillan, Ramey, Stover and
Wysong attended the event. Three of the posters identify
doctors; the others ‘identify reproductive health care
clinics, one of which was a Planned Parenthood affiliate
where Crist worked. The Crist poster has “GUILTY” in
large bold letters at the top followed by “OF CRIMES
AGAINST HUMANITY” in smaller font. It also gives his
home and work addresses; states “Please write, leaflet or
picket his neighborhood to expose his blood guilt”; offers a
“$500 REWARD” “to any ACLA organization that success-
fully persuades Crist to turn from his child killing through
activities within ACLA guidelines”; and has “ABORTION-
IST” in large bold type at the bottom.
At its January 1996 conference, ACLA displayed the
Deadly Dozen poster, held a “White Rose Banquet” to
honor prisoners convicted of anti-abortion violence, and
introduced ALM’s Paul deParrie to unveil the “Nuremberg
Files.” ACLA sent a hard copy of some of the Files to Neal
Horsley (a non-party) to post on the internet, and ACLA’s
name appeared on the Nuremberg Files website opened in
January 1997. Approximately 200 people are listed under
the label “ABORTIONISTS: the shooters,” and 200 more
are listed under Files for judges, politicians, law enforce-
ment, spouses, and abortion rights supporters. Crist, Hern
and the Newhalls are listed in the “abortionists” section,
which bears the legend: “Black font (working); Greyed-out
Name (wounded); Strikethrough (fatality).” The names of
Gunn, Patterson and Britton are struck through.
By January 1995 ACLA knew the effect that
“WANTED,” “unWANTED,” or “GUILTY” posters had on
App. 80
doctors named in them. For example, in a September 1993
issue of Life Advocate which reported that an “unwanted”
poster was being prepared for Britton, ALM remarked of
the Gunn murder that it “sent shock waves of fear through
the ranks of abortion providers across the country. As a
result, many more doctors quit out of fear for their lives,
and the ones who are left are scared stiff.” Of another
doctor who decided to quit performing abortions after
circulation of a “Not Wanted” poster, Bray wrote that “it is
clear to all who possess faculties capable of inductive
analysis: he was bothered and afraid.” Wysong also stated:
“Listening to what abortionists said, abortionists who have
quit the practice who are no longer killing babies but are
now pro-life. They said the two things they feared the most
were being sued for malpractice and having their picture
put on a poster.” And Burnett testified with respect to the
danger that “wanted” or “guilty” posters pose to the lives
of those who provide abortions: “I mean, if | was an abor-
tionist, I would be afraid.”
By January 1995 the physicians knew about the
Gunn, Patterson and Britton murders and the posters that
preceded each. Hern was terrified when his name ap-
peared on the Deadly Dozen poster; as he put it: “The fact
that wanted posters about these doctors jiad been circu-
lated, prior to their assassination, and that the — that the
posters, then, were followed by the doctor’s assassination,
emphasized for me the danger posed by this document, the
Deadly Dozen List, which meant to me that — that, as
night follows day, that my name was on this wanted poster
. and that I would be assassinated, as had the other
doctors been assassinated.” Hern interpreted the poster as
meaning “Do what we tell you to do, or we will kill you.
And they do.” Crist was “truly frightened,” and stopped
App. 81
practicing medicine for a while out of fear for his life. Dr.
Elizabeth Newhall interpreted the Deadly Dozen poster as
saying that if she didn’t stop doing abortions, her life was
at risk. Dr. James Newhall was “severely frightened” in
light of the “clear pattern” of a wanted poster and a
murder when there was “another wanted poster with my
name on it.”
The jury found for plaintiffs on all claims except for
Bray and Treshman on the RICO claims.’ The district
court then considered equitable relief. It found that each
defendant used intimidation as a means of interfering
with the provision of reproductive health services; that
each independently and as a co-conspirator published and
distributed the Deadly Dozen poster, the Crist poster, and
the Nuremberg Files; and that each acted with malice and
specific intent in communicating true threats to kill,
assault or do bodily harm to each of the plaintiffs to
intimidate them from engaging in legal medical practices
and procedures. The court found that the balance of
hardships weighed “overwhelmingly” in plaintiffs’ favor. It
also found that the defendants’ actions were not protected
speech under the First Amendment. Accordingly, it issued
a permanent injunction restraining defendants from
threatening, with the specific intent to do so, any of the
* 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.
App. 82
plaintiffs in violation of FACE; from publishing or distrib-
uting the Deadly Dozen poster and the Crist poster with
specific intent to threaten the plaintiffs; from providing
additional material concerning plaintiffs, with a specific
intent to threaten, to the Nuremberg Files or similar web
site; and from publishing or distributing the personally
identifying information about the plaintiffs in the Files with
a specific intent to threaten. The court also required defen-
dants to turn over materials that are not in compliance with
the injunction except for one copy of anything included in the
record, which counsel was permitted to retain.
II
Before turning to the merits, we must consider the
standard of review because ACLA contends that in a free
speech case it is de novo. Relying on Bose Corp. v. Con-
sumers Union of United States, Inc., 466 U.S. 485, 104
S.Ct. 1949, 80 L.Ed.2d 502 (1984), ACLA submits that we
must first determine for ourselves whether its speech is
classic protected speech or is a “true threat” by reviewing
the entire record.
Physicians assert that the standard of review for
which ACLA contends comes from libel cases, but that
threat cases are different; the more searching review of
the record incumbent upon courts in libel cases, they urge,
is inapposite to threat cases. They also point out that we
have decided all of our threats cases without engaging in
de novo review of the factual record. See, e.g., United
States v. Gilbert, 884 F.2d 454, 457 (9th Cir.1989) ‘Gilbert
IT) (“Viewed as a whole, and using the contextual analysis
we have used for other statutes, a rational trier of fact
could find a thr, .”); United States v. Gordon, 974 F.2d
App. 83
1110, 1117 (9th Cir.1992) (“Although some of the factual
circumstances surrounding the incident suggest a contrary
result, the jury acted reasonably [in finding that] the
threats were serious.”); United States v. Orozco-Santillan,
903 F.2d 1262, 1266 (9th Cir.1990) (“[A] rational jury could
conclude that Orozco Santillan’s statement ... was a
threat.”); see also United States v. Hoff, 22 F.3d 222, 224
(9th Cir.1994) (reviewing for clear error conviction for
intimidating forest ranger).
We do not entirely agree with either side. It is true
that our threats cases have been decided without conduct-
ing a de novo review of the factual record, but the issue
was not squarely presented in any of those cases. For this
reason, we cannot take.it as definitively resolved.
In Bose (a defamation action arising out of a publica-
tion about loudspeaker systems), the Court confronted an
apparent conflict between Federal Rule of Civil Procedure
52(a), providing that findings of fact shall not be set aside
unless clearly erroneous, and its rule in cases raising First
Amendment issues that “an appellate court has an obliga-
tion to ‘make an independent examination of the whole
record’ in order to make sure that ‘the judgment does not
constitute a forbidden intrusion on the field of free expres-
sion.’” Bose, 466 U.S. at 498-99, 104 S.Ct. 1949 (quoting
New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84
S.Ct. 710, 11 L.Ed.2d 686 (1964)). The Court noted that it
had previously exercised independent judgment on ques-
tions such as whether particular remarks are “fighting
words,” Street v. New York, 394 U.S. 576, 592, 89 S.Ct.
1354, 22 L.Ed.2d 572 (1969), and whether, as a matter of
constitutional law, a motion picture is obscene. Jenkins v.
Georgia, 418 U.S. 153, 159-61, 94 S.Ct. 2750, 41 L.Ed.2d
642 (1974). In this connection, the Court observed that in
App. 84
Jenkins it had rejected the notion that a jury finding
(there of obscenity) “is insulated from review so long as the
jury was properly instructed and there is some evidence to
support its findings”; rather, substantive constitutional
limitations govern. Bose, 466 U.S. at 506-07, 104 S.Ct.
1949. Therefore, it concluded, appellate judges must
themselves determine whether the record establishes the
constitutional facts required for showing actual malice
with convincing clarity in a case governed by New York
Times. This obligation does not, however, extend to any
evidence that is not germane to the actual malice (or core
constitutional fact) determination. Jd. at 514 n. 31, 104
S.Ct. 1949.
The Court revisited the issue in Harte-Hanks Com-
munications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct.
2678, 105 L.Ed.2d 562 (1989). Harte-Hanks was a libel
action against a newspaper, also governed by New York
Times. The court of appeals had affirmed a judgment
against the paper without attempting to make an inde-
pendent evaluation of the credibility of conflicting oral
testimony concerning the facts underlying the jury’s
finding of actual malice. Certiorari was granted to con-
sider whether the appellate court’s analysis was consistent
with Bose. Harte-Hanks conceded that when conducting
the independent review required by New York Times and
Bose, a reviewing court should properly hesitate to disre-
gard a jurys opportunity to observe live testimony and
assess witness credibility, but contended that the Supreme
Court had nevertheless rejected the trial court’s credibility
determination in Bose. Justice Stevens, writing for the
Court in both Bose and Harte-Hanks, noted that this was
not correct; he explained that in Bose the Court had
accepted the trial court’s determination that the author of
App. 85
the report at issue did not provide credible testimony, but
had been unwilling to infer actual malice from the finding.
Id. at 689 n. 35, 109 S.Ct. 2678. The Harte-Hanks Court
went on to review-the entire record, holding that given the
instructions, the jury’s answers to special interrogatories,
and the facts that were not in dispute, the jury must have
found certain testimony incredible and that from these
findings, considered with the undisputed evidence, it
followed that the paper acted with actual malice and that
the evidence was sufficient to support such a finding.
The same rule was reiterated in Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), a First
Amendment case involving a parade permit. As the Court
explained: “This obligation rests upon us simply because
the reaches of the First Amendment are ultimately defined
_ by the facts it is held to embrace, and we must thus decide
for ourselves whether a given course of conduct falls on the
near or far side of the line of constitutional protection.” Jd.
at 567, 115 S.Ct. 2338.
We have discussed the issue a number of times, in
connection with threats in United States v. Merrill, 746
F.2d 458 (9th Cir.1984), United States v. Gilbert (Gilbert I),
813 F.2d 1523 (9th Cir.1987), Melugin v. Hames, 38 F.3d
1478 (9th Cir.1994), and Lovell v. Poway Unified School
Dist., 90 F.3d 367 (9th Cir.1996), and in defamation
actions in Newton v. National Broadcasting Co., 930 F.2d
662 (9th Cir.1990), Eastwood v. National Enquirer, Inc.,
123 F.3d 1249 (9th Cir.1997), and Hoffman v. Capital
Cities/ABC, Inc., 255 F.3d 1180 (9th Cir.2001).
Merrill was prosecuted for mailing injurious articles
through the mail (letters with live .22 caliber rim fire
App. 86
bullets, some with the words “Kill Reagan,” some with
pornographic playing cards) and for threatening the life of
the President in violation of 18 U.S.C. § 871. ACLA relies
on that part of Merrill where we considered the obscenity
conviction under the Bose standard of review. We inter-
preted Bose and Smith v. United States, 431 U.S. 291, 97
S.Ct. -1756, 52 L.Ed.2d 324 (1977), as allowing deferential
(sufficiency of the evidence) review of findings about
contemporary community standards and the offensiveness
of the material, but as requiring more extensive review of
the district court’s findings that Miller’s letters lacked
serious political value. Smith, 431 U.S. at 305, 97 S.Ct.
1756 (whether a work lacks serious literary, artistic,
political, or scientific value for purposes of an obscenity
prosecution is a “determination ... particularly amenable
to appellate review”). However, we did not apply height-
ened review to the threats conviction. Instead, we stated:
Whether any given form of written or oral ex-
pression constitutes a true threat for the stat-
ute’s [§ 871] purposes is a question for the trier of
fact under all of the circumstances. Roy v. United
States, 416 F.2d [874,] 877-78 [(9th Cir.1969)]. A
few cases may be so clear that they can be re-
solved as a matter of law, e.g., Watts v. United
States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d
664[] (1969) (conditional statement made at po-
litical rally which provoked listeners’ laughter
was merely “political hyperbole,” and question
should not have gone to jury), but most cases
arising under this statute present widely varying
fact patterns that shouid be left to the trier of
fact. United States v. Carrier, 672 F.2d [300,] 306
[((2d Cir.1982)].
App. 87
Merrill, 746 F.2d at 462-63. Under this standard we
held that the district judge was not clearly erroneous in
finding that the letters constituted an objectively serious
threat to harm the President.
We followed Merrill in Gilbert I, 813 F.2d at 1529-30.
Gilbert was charged with violating the Fair Housing Act,
42 U.S.C. § 3631(b) and (c), by mailing menacing flyers to
ntimidate the director of an adoption organization respon-
sible for the placement and adoption of black and Asian
children from aiding minority children’s occupancy of
dwellings in Kootenai County. Noting that whether ex-
pression is a true threat is for the trier of fact, we recog-
nized that “[w]hether any given form of written expression
can supply the requisite intent requirement is a question
for the trier of fact.” Gilbert I, 813 F.2d at 1529. Thus, “it is
a jury question whether actions and communications are
clearly outside the ambit of first amendment protection.”
Id. at 1530. And following the Seventh Circuit’s lead in
United States v. Khorrami, 895 F.2d 1186, 1192 (7th
Cir.1990), we held in Melugin that “the issue whether the
prosecution has shown a ‘true threat’ is a question of fact
for the jury, not a question of law for the court.” Melugin,
38 F.3d at 1485.
Lovell was a § 1983 action in which a student was
suspended for allegedly threatening to shoot a teacher. We
acknowledged that “[djifferent standards are sometimes
used when reviewing district court cases in which the
court adjudged the constitutionality of a restriction on
speech,” and that a de novo review of the facts is con-
ducted when a restriction is upheld. Lovell, 90 F.3d at 370.
Newton was a defamation action brought by Wayne
Newton (a public figure) against NBC. It was tried to a
App. 88
jury, which found actual malice. The appeal caused us
specifically to consider how “to strike the proper balance
between our constitutional (Seventh Amendment) defer-
ence to the factfinder and our constitutional duty to
safeguard First Amendment values” in light of Bose and
Harte-Hanks. Newton, 930 F.2d at 666. We observed that
the “independent examination of the record” contemplated
by Bose is “‘not equivalent to a “de novo” review of the
ultimate judgment itself,” where the reviewing court
makes an “original appraisal of all the evidence to decide
whether or not judgment should be entered for the plain-
tiff.” Id. at 670 n. 10 (quoting Bose, 466 U.S. at 514 n. 31,
104 S.Ct. 1949). However, we also noted that as a general
rule, we have conducted de novo review of the record when
a restriction on speech has been upheld. /d. (citing Daily
Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.1988)). We
then read Bose and Harte-Hanks as creating a “credibility
exception” to the New York Times rule of independent
review, such that we give “special deference” to credibility
determinations but conduct “a more searching review of
other evidence” germane to the actual malice determina-
tion. Id. at 671, 672.
Eastwood was. another defamation action in which we
engaged in an independent review of actual malice. We
thought that the jury was properly instructed, but in
conducting the review we explained that “it is not enough
for us to determine that a reasonable jury could have
found for the plaintiff —- a kind of sufficiency-of-the-
evidence test, permitting us to affirm even though we
would have reached a different conclusion. Rather, ‘First
Amendment questions of “constitutional fact” compel [us
to conduct a] de novo review.’ We ourselves must be con-
vinced that the defendant acted with malice,” even though
App. 89
we defer to the jury on questions of credibility. Eastwood,
123 F.3d at 1252 (citations omitted). See also Hoffman, 255
F.3d at 1186 (relying on Eastwood).
It is not easy to discern a rule from these cases that can
easily be applied in a threats case where, by definition, a
true threat is constitutionally unprotected. Indeed, FACE on
its face requires that “threat of force” be defined and applied
consistent with the First Amendment. Perhaps this explains
why we have treated threat cases differently, explicitly
holding that the question of whether there is a true threat
is for the jury.
We conclude that the proper definition of a “threat” for
purposes of FACE is a question of law that we review de
novo. If it were clear that neither the Deadly Dozen nor
the Crist poster, or the Nuremberg Files, was a threat as
properly defined, the case should not have gone to the jury
and summary judgment should have been granted in
ACLA’s favor. If there were material facts in dispute or it
was not clear that the posters were protected expression
instead of true threats, the question whether the posters
and the Files amount to a “threat of force” for purposes of
the statute was for the trier of fact. Assuming that the
district court correctly defined “threat” and properly
instructed the jury on the elements of liability pursuant to
the statute, our review is for substantial evidence support-
ing the historical facts (including credibility determina-
tions) and the elements of statutory liability (including
intent). We review the district court’s findings with respect
to injunctive relief for clear error and its conclusions of law
de novo. However, while we normally review the scope of
injunctive relief for abuse of discretion, we will scrutinize
the relief granted in this case to determine whether the
challenged provisions of the injunction burden no more
App. 90
speech than necessary to achieve its goals. Madsen uv.
Women’s Health Ctr, Inc., 512 U.S. 753, 765, 114 S.Ct.
2516, 129 L.Ed.2d 593 (1994).
Given that the verdict for physicians and the injunc-
tive relief granted in their favor restrict speech, we review
the record independently in order to satisfy ourselves that
the posters and the Files constitute a “true threat” such
that they lack First Amendment protection. We will
consider the undisputed facts as true, and construe the
historical facts, the findings on the statutory elements,
and all credibility determinations in favor of the prevailing
party. In this way we give appropriate deference to the
trier of fact, here both the jury and the district judge, yet
assure that evidence of the core constitutional fact — a true
threat — falls within the unprotected category and is
narrowly enough bounded as a matter of constitutional
law.
Il
ACLA’ argues that the First Amendment requires
reversal because liability was based on political speech
that constituted neither an incitement to imminent law-
less action nor a true threat. It suggests that the key
question for us to consider is whether these posters can be
considered “true threats” when, in fact, the posters on
* Treshman and Miller filed a separate brief. We treat their
arguments with ACLA’s, as each adopts the others’ brief. An amicus
curiae brief in support of reversal was also submitted on behalf of The
Thomas Jefferson Center for the Protection of Free Expression. Paul
deParrie submitted a pro se, non-party-in-interest brief challenging the
permanent injunction entered by the district court, and an amicus brief
in opposition to reconsideration of the panel opinion.
App. 91
their face contain no explicitly threatening language.
Further, ACLA submits that classic political speech cannot
be converted into non-protected speech by a context of
violence that includes the independent action of others.
Physicians’ counter that this threats case must be ana-
lyzed under the settled threats law of this circuit. Follow-
ing precedent, it was proper for the jury to take context
into account. They point out that the district court limited
evidence of anti-abortion violence to evidence tending to
show knowledge of a particular defendant, and maintain
that the objective standard on which the jury was in-
structed comports both with Ninth Circuit law and con-
gressional intent. As the First Amendment does not
protect true threats of force, physicians conclude, ACLA’s
speech was not protected.
A
We start with the statute under which this action
arises. Section 248(c)(1)(A) gives a private right of action
to any person aggrieved by reason of the conduct prohib-
ited by subsection (a). Subsection (a)(1) provides:
a
* Amicus briefs in support of affirmance were submitted on behalf of
the American Medical Association; seventeen United States Senators and
forty-two United States Representatives; the State of Connecticut; the Anti-
Defamation League, the American Jewish Committee, and Hadassah, the
Women’s Zionist Organization of America, Inc.; Feminist Majority Founda-
tion, Center for Reproductive Law and Policy, National Abortion and
Reproductive Rights Action League and NARAL Foundation, National
Abortion Federation, National Coalition of Abortion Providers, National
Organization for Women Foundation, NOW Legal Defense and Education
Fund, National Women’s Health Foundation, Northwest Women’s Law
Center, Physicians for Reproductive Choice and Health, and Women’s Law
Project; and the ACLU Foundation of Oregon, Inc.
App. 92
(a) ... Whoever —
(1) by force or threat of force or by physical ob-
struction, intentionally injures, intimidates or in-
terferes with or attempts to injure, intimidate or
interfere with any person because that person is
or has been, or in order to intimidate such person
or any other person or any class of persons from,
obtaining or providing reproductive health ser-
vices
shall be subject to the . . . civil remedies provided
in subsection (c)....
18 U.S.C. §248(a)(1). The statute also provides that
“{nJothing in this section shall be construed ... to prohibit
any expressive conduct (including peaceful picketing or
other peaceful demonstration) protected from legal prohi-
bition by the First Amendment to the Constitution.” 18
U.S.C. § 248(d)(1).
FACE does not define “threat,” although it does
provide that “[t]he term ‘intimidate’ means to place a
person in reasonable apprehension of bodily harm to him —
or herself or to another.” 18 U.S.C. § 248(e)(3). Thus, the
first task is to define “threat” for purposes of the Act. This
requires a definition that comports with the First Amend-
ment, that is, a “true threat.”
The Supreme Court has provided benchmarks, but no
definition.
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct.
1827, 23 L.Ed.2d 430 (1969), makes it clear that the First
Amendment protects speech that advocates violence, so
long as the speech is not directed to inciting or producing
App. 93
imminent lawless action and~is not likely to incite or
produce such action. So do Hess v. Indiana, 414 U.S. 105,
94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (overturning disor-
derly conduct conviction of antiwar protestor who yelled
“We'll take the fucking street later (or again)”), and
NAACP uv. Claiborne Hardware Co., 458 U.S. 886, 102
S.Ct. 3409, 73 L.Ed.2d 1215 (1982). If ACLA had merely
endorsed or encouraged the violent actions of others, its
speech would be protected.
However, while advocating violence is protected,
threatening a person with violence is not. In Watts v.
United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664
(1969), the Court explicitly distinguished between political
hyperbole, which is protected, and true threats, which are
not. Considering how to construe a statute which prohib-
ited “knowingly and willfully ... (making) any threat to
take the life of or to inflict bodily harm upon the Presi-
dent,” the Court admonished that any statute which
criminalizes a form of pure speech “must be interpreted
with the commands of the First Amendment clearly in
mind. What is a threat must be distinguished from what is
constitutionally protected speech.” Jd. at 705, 707, 89 S.Ct.
1399. In that case, an 18-year old war protester told a
discussion group of other young people at a public rally on
the Washington Monument grounds: “They always holler
at us to get an education. And now I have already received
my draft classification as 1-A and I have got to report for
my physical this Monday coming. I am not going. If they
ever make me carry a rifle the first man I want to get in my
sights is L.B.J.” Id. at 706, 89 S.Ct. 1399. His audience
laughed. Taken in context, and given the conditional nature
of the statement and the reaction of the listeners, the Court
concluded that the speech could not be interpreted other
App. 94
than as “a kind of very crude offensive method of stating a
political opposition to the President.” Jd. at 708, 89 S.Ct.
1399. Accordingly, it ordered judgment entered for Watts.
ACLA’s position is that the posters, including the
Nuremberg Files, are protected political speech under
Watts, and cannot lose this character by context. But this
is not correct. The Court itself considered context and
determined that Watts’s statement was political hyperbole
instead of a true threat because of context. Jd. at 708, 89
S.Ct. 1399. Beyond this, ACLA points out that the posters
contain no language that is a threat. We agree that this is
literally true. Therefore, ACLA submits, this case is really
an incitement case in disguise. So viewed, the posters are
protected speech under Brandenburg and Claiborne,
which ACLA suggests is the closest analogue. We disagree
that Claiborne is closely analogous.
In March 1966 black citizens in Claiborne County
made a list of demands for racial equality and integration.
Unsatisfied by the response, several hundred black per-
sons at a meeting of the local National Association for the
Advancement of Colored People (NAACP) voted to place a
boycott on white merchants in the area. The boycott
continued until October 1969. During this period, stores
were watched and the names of persons who violated the
boycott were read at meetings of the NAACP at the First
Baptist Church, and published in a local paper called
“Black Times.” These persons were branded as traitors to
the black cause, were called demeaning names, and were
socially ostracized. A few incidents of violence occurred.
Birdshot was fired at the houses of two boycott violators; a
brick was thrown through a windshield; and a flower
garden was damaged. Nome of the victims ceased trading
with white merchants. Six other incidents of arguably
App. 95
unlawful conduct occurred. White business owners
brought suit against the NAACP and Charles Evers, its
field secretary, along with other individuals who had
participated in the boycott, for violating Mississippi state
laws on malicious interference with a business, antitrust,
and illegal boycott. Plaintiffs pursued several theories of
liability: participating in management of the boycott;
serving as an “enforcer” or monitor; committing or threat-
ening acts of violence, which showed that the perpetrator
wanted the boycott to succeed by coercion when it could
not succeed by persuasion; and as to Evers, threatening
violence against boycott breakers, and as to the NAACP
because he was its field secretary when he committed
tortious and constitutionally unprotected acts. Damages
for business losses during the boycott and injunctive relief
were awarded.
The Court held that there could be no recovery based
on intimidation by threats of social ostracism, because
offensive and coercive speech is_ protected by the First
Amendment. “The usé of speeches, marches, and threats of
social ostracism cannot provide the basis for a damages
award. But violent conduct is beyond the pale of constitu-
tional protection.” 458 U.S. at 933, 102 S.Ct. 3409. There
was some evidence of violence, but the violence was not
pervasive as it had been in Milk Wagon Drivers Union
Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61
S.Ct. 552, 85 L.Ed. 836 (1941). Accordingly, the Court
made clear that only losses proximately caused by unlaw-
ful conduct could be recovered. Further, civil liability could ~
not be imposed consistent with the First Amendment
solely on account of an individual’s association with others
who have committed acts of violence; he must have incited
or authorized them himself.
App. 96
For the same reasons the Court held that liability
could not be imposed on Evers for his participation in the
boycott itself, or for his threats of vilification or ostracism.
However, the merchants also sought damages from Evers
for his speeches. He gave one in April 1966, and two others
in April 1969. In the first, he told his audience that they
would be watched and that blacks who traded with white
merchants would be answerable to him; he also said that
any “uncle toms” who broke the boycott would “have their
necks broken” by their own people. In his April 19, 1969
speech, Evers stated that boycott violators would be
“disciplined” by their own people and warned that the
Sheriff could not sleep with boycott violators at night. And
on April 21, Evers gave another speech to several hundred
people calling for a total boycott of white-owned businesses
and saying: “If we catch any of you going in any of them
racist stores, were gonna break your damn neck.” The
Court concluded that the “emotionally charged rhetoric” of
Evers’s speeches was within the bounds of Brandenburg.
It was not followed by violence, and there was no evidence
— apart from the speeches themselves — that Evers author-
ized, ratified, or directly threatened violence. “If there
were other evidence of his authorization of wrongful
conduct, the references to discipline in the speeches could
be used to corroborate that evidence.” Claiborne, 458 U.S.
at 929, 102 S.Ct. 3409. As there was not, the findings were
constitutionally inadequate to support the damages
judgment against him and, in turn, the NAACP.
Claiborne, of course, did not arise under a threats
statute. The Court had no need to consider whether
Evers’s statements were true threats of force within the
meaning of a threats statute; it held only that his speeches
did not incite illegal activity, thus could not have caused
App. 97
business losses and could not be the basis for liability to
white merchants. As the opinion points out, there was no
context to give the speeches (including the expression
“break your neck”) the implication of authorizing or
directly threatening unlawful conduct. To the extent there
was any intimidating overtone, Evers’s rhetoric was
extemporaneous, surrounded by statements supporting
non-violent action, and primarily of the social ostracism
sort. No specific individuals were targeted. For all that
appears, “the break your neck” comments were hyperbolic
vernacular. Certainly there was no history that Evers or
anyone else associated with the NAACP had broken
anyone’s neck who did not participate in, or opposed, this
boycott or any others. Nor is there any indication that
Evers’s listeners took his statement that boycott breakers’
“necks would be broken” as a serious threat that their
necks would be broken; they kept on shopping at boycotted
stores.
Thus, Watts was the only Supreme Court case that
discussed the First Amendment in relation to true threats
before we first confronted the issue. Apart from holding
that Watts’s crack about L.B.J. was not a true threat, the
Court set out no standard for determining when a state-
ment is a true threat that is unprotected speech under the
First Amendment. Shortly after Watts was rendered, we
had to decide in Roy v. United States, 416 F.2d 874 (9th
Cir.1969), whether a Marine Corps private made a true
threat for purposes of 18 U.S.C; § 871 against the Presi-
dent, who was coming to his base the next day, by saying:
“I am going to get him.” We adopted a “reasonable
speaker” test. As it has come to be articulated, the test is:
App. 98
Whether a particular statement may properly be
considered to be a threat is governed by an objec-
tive standard — whether a reasonable person
would foresee that the statement would be inter-
preted by those to whom the maker communi-
cates the statement as a serious expression of
intent to harm or assault:
United States v. Orozco-Santillan, 903 F.2d 1262, 1265
(9th Cir.1990).
We have applied this test to threats statutes that are
similar to FACE, see, e.g., United States v. Gilbert (Gil-
bert IT), 884 F.2d 454, 457 (9th Cir.1989) (Fair Housing
Act banning threat of force to intimidate person based on
race and housing practices, 42 U.S.C. § 3631); United
States v. Mitchell, 812 F.2d 1250, 1255 (9th Cir.1987)
(threats against the President, 18 U.S.C. § 871); Merrill,
746 F.2d at 462-63 (same); United States v. Gordon, 974
F.2d 1110, 1117 (9th Cir.1992) (threat to kill a former
President, 18 U.S.C. § 879); Orozco-Santillan, 903 F.2d at
1265 (threats to assault a law enforcement officer with
intent to intimidate, 18 U.S.C. § 115); Melugin, 38 F.3d at
1483-84 (threat to influence judicial proceeding under
Alaska state law); McCalden v. California Library Ass’n,
955 F.2d 1214, 1222 (9th Cir.1990) (threat to disrupt
conference under California’s Unruh Act); and Lovell, 90
F.3d at 371 (9th Cir.1996) (§ 1983 action involving threat
to shoot teacher). Other circuits have, too. We see no
* See, e.g., United States v. Whiffen, 121 F.3d 18, 20-21 (ist
Cir.1997) (statement is threat under 18 U.S.C. § 875(c) if reasonable
person would foresee that it would be interpreted as expression of
intent to harm); United States v. Sovie, 122 F.3d 122, 125 (2d Cir.1997)
(Continued on following page)
App. 99
reason not to apply the same test to FACE."
(Second Circuit approach to threats, adopted in United States v. Kelner,
534 F.2d 1020 (2d Cir.1976), is objective test and requires assessing
whether a reasonable recipient of statement would construe it as threat
in light of context); United States v. Kosma, 951 F.2d 549, 556-57 (3d
Cir.1991) (statement is threat under 18 U.S.C. § 871 if reasonable
person would foresee that it would be interpreted as expression of
intent to harm); United States v. Darby, 37 F.3d 1059, 1066 (4th
Cir.1994) (statement is threat under 18 U.S.C. § 875(c) if reasonable
person would interpret the statement as threat); United States v.
Morales, 272 F.3d 284, 287 (5th Cir.2001) (statement is threat under 18
U.S.C. § 875(c) if recipient placed in reasonable fear of bodily harm);
United States v. Landham, 251 F.3d 1072, 1080 (6th Cir.2001) (state-
ment is threat under 18 U.S.C. § 875(c) if reasonable recipient of
message would interpret it as expression of intent to harm); United
States v. Hartbarger, 148 F.3d 777, 782-83 (7th Cir.1998) (cross burning
is threat under 42 U.S.C. § 3631 because the reasonable person would
foresee that it would be interpreted as expression of intent to harm);
United States v. Hart, 212 F.3d 1067, 1072 (8th Cir.2000) (placing Ryder
truck in driveway of abortion clinic is threat under FACE because, in
light of entire factual context, person would reasonably conclude that
the act expresses an intent to harm); United States v. Magleby, 241 F.3d
1306, 1311-13 (10th Cir.2001) (cross burning is threat under the Fair
Housing Act, 42 U.S.C. § 3631, because reasonable person would foresee
that it would be interpreted as expression of intent to harm); United
States v. Callahan, 702 F.2d 964, 965-66 (11th Cir.1983) (statement is
threat under 18 U.S.C. § 871 if reasonable person would construe
statement as expression of intent to harm); Metz v. Dept of Treasury,
780 F.2d 1001, 1002 (Fed.Cir.1986) (threat evaluated by reasonable
listener considering numerous factors).
Although all now apply an objective standard, several circuits have
a “reasonable listener” test while others have a “reasonable speaker”
test as we do. The difference does not appear to matter much because
all consider context, including the effect of an allegedly threatening
statement on the listener.
* Both the House and Senate specifically referred to Gilbert's
interpretation of the Fair Housing Act’s threat provision in adopting
FACE’s quite similar text. H. Rep. No. 103-306, 12 n. 19 (1993), 1994
U.S. Code Cong. & Admin. News at 699, 709 n. 19; S.Rep. No. 103-117,
at 29 (1993).
App. 100
Under our cases, a threat is “an expression of an intention
to inflict evil, injury, or damage on another.” Gilbert IT, 884
F.2d at 457; Orozco-Santillan, 903 F.2d at 1265. “Alleged
threats should be considered in light of their entire factual
context, including the surrounding events and reaction of
the listeners.” Orozco-Santillan, 903 F.2d at 1265; see also
Mitchell, 812 F.2d at 1255 (citing Watts, 394 U.S. at 708,
89 S.Ct. 1399; Merrill, 746 F.2d at 462; Roy, 416 F.2d at
876). ““The fact that a threat is subtle does not make it
less of a threat.’” Orozco-Santillan, 903 F.2d at 1265
(quoting Gilbert IJ, 884 F.2d at 457). A true threat, that is
one “where a reasonable person would foresee that the
listener will believe he will be subjected to physical vio-
lence upon his person, is unprotected by the first amend-
ment.” Jd. (citing Merrill, 746 F.2d at 462).
It is not necessary that the defendant intend to, or be
able to carry out his threat; the only intent requirement
for a true threat is that the defendant intentionally or
knowingly communicate the threat. Orozco-Santillan, 903
F.2d at 1265 n. 3; Gilbert II, 884 F.2d at 456-57; Mitchell,
812 F.2d at 1256 (upholding § 871 conviction of defendant
with no capacity to carry out threat); Roy, 416 F.2d at 877.”
Other circuits are in accord.” Nevertheless, we are urged
* We have held that 28 U.S.C. § 876, which criminalizes knowingly
mailing any communication containing a threat to injure, is a specific
intent crime. United States v. Twine, 853 F.2d 676 (9th Cir.1988);
United States v. King, 122 F.3d 808 (9th Cir.1997). However, we were
not defining “threat” or considering what a true threat is, and we made
it clear that specific intent or ability to carry out the threat is not an
essential element. Aing, 122 F.3d at 810 (quoting Twine, 853 F.2d at 681
n. 4).
See, e.g., United States v. Francis, 164 F.3d 120, 123 (2d Cir.1999)
(rejecting addition of substantive intent requirement to objective test);
United States v. Miller, 115 F.3d 361, 363-64 (6th Cir.1997) (same);
(Continued on following page)
App. 101
to adopt a subjective intent requirement for FACE. In
particular, amicus ACLU Foundation of Oregon, Inc.,
advocates a subjective intent component to “require
evidence, albeit circumstantial or inferential in many
cases, that the speaker actually intended to induce fear,
intimidation, or terror; namely, that the speaker intended
to threaten. If a person did not intend to threaten or
intimidate (i.e., did not intend that his or her statement be
understood as a threat), then the speech should not be
considered to be a ‘true threat,’ unprotected by the First
Amendment.” However, this much is subsumed within the
statutory standard of FACE itself, which requires that the
threat of force be made with the intent to intimidate. The
“requirement of intent to intimidate serves to insulate the
statute from unconstitutional application to protected
speech.” Gilbert I, 813 F.2d at 1529 (construing the Fair
Housing Act’s threat provision, 42 U.S.C. § 3631, which is
essentially the same as FACE’s). No reason appears to
engraft another intent requirement onto the statute,
because whether or not the maker of the threat has an
actual intention to carry it out, “an apparently serious
threat may cause the mischief or evil toward which the
statute was in part directed.” Gilbert II, 884 F.2d at 458
(quoting Roy, 416 F.2d at 877).
The dissents would change the test, either to require that
the speaker actually intend to carry out the threat or be in
control of those who will, or to make it inapplicable when
United States v. Aman, 31 F.3d 550, 553-56 (7th Cir.1994) (same);
United States v. Patrick, 117 F.3d 375, 377 (8th Cir.1997) (same); United
States v. Martin, 163 F.3d 1212, 1215-16 (10th Cir.1998) (same). But see
United States v. Patillo, 438 F.2d 13, 15 (4th Cir.1971) (including
subjective intent element in § 871). The Fourth Circuit has abandoned
this approach in its other true threat cases.
App. 102
the speech is public rather than private. However, for
years our test has focused on what a reasonable speaker
would foresee the listener’s reaction to be under the
circumstances, and that is where we believe it should
remain. See Madsen, 512 U.S. at 773, 114 S.Ct. 2516
(noting that “threats ... however communicated, are
proscribable under the First Amendment, and indicating
that display of signs “that could be interpreted as threats
or veiled threats” could be prohibited”). Threats are
outside the First Amendment to “protect|] individuals
from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened
violence will occur.” R.A.V. v. City of St. Paul, Minn., 505
U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
This purpose is not served by hinging constitutionality on
the speaker’s subjective intent or capacity to do (or not to
do) harm. Rather, these factors go to how reasonably
foreseeable it is to a speaker that the listener will seri-
ously take his communication as an intent to inflict bodily
harm. This suffices to distinguish a “true threat” from
speech that is merely frightening. Thus, no reasonable
speaker would foresee that a patient would take the
statement “You have cancer and will die within six
months,” or that a pedestrian would take a warning “Get
out of the way of that bus,” as a serious expression of
intent to inflict bodily harm; the harm is going to happen
anyway.
Neither do-we agree that threatening speech made in
public is entitled to heightened constitutional protection
just because it is communicated publicly rather than
privately. As Madsen indicates, threats are unprotected by
App. 103
the First Amendment “however communicated.” Madsen,
512 U.S. at 753, 114 S.Ct. 2516.”
Therefore, we hold that “threat of force” in FACE
means what our settled threats law says a true threat is: 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 commu-
nicated as a serious expression of intent to inflict bodily
harm upon that person. So defined, a threatening state-
ment that violates FACE is unprotected under the First
Amendment.
B
Although ACLA does not believe we should reach this
point, if we do it submits that no claim was made out even
under “true threats” cases. First, it argues that other
" Judge Reinhardt chides us for failing to accord public speech
more protection than private speech. He misses the point. Threats, in
whatever forum, may be independently proscribed without implicating
the First Amendment. See e.g., Schenck v. Pro-Choice Network of
Western New York, 519 U.S. 357, 373, 117 S.Ct. 855, 137 L.Ed.2d 1
(1997) (so indicating in case involving public protest against abortion
providers); Madsen, 512 U.S. at 774, 114 S.Ct. 2516 (same); Kelner, 534
F.2d 1020 (JDL press conference in connection with public demonstra-
tion about the Palestine Liberation Organization and its leader); Hart,
212 F.3d 1067 (public protest against abortion providers).
Nor does Bauer v. Sampson, 261 F.3d 775 (9th Cir.2001), turn on a
public/private distinction, as Judge Kozinski’s dissent suggests. No
heightened scrutiny was given to the professor’s speech on account of
the fact that it had to do with a campus debate. Rather, the Orozco-
Santillan test was applied, and we concluded that even though there
was some violent content to his writings and cartoons, in the context of
the underground campus newspaper in which they appeared, they
would be perceived as hyperbole instead of as a serious expression of
intent to inflict bodily harm.
App. 104
threats cases were criminal actions against someone who
made a real threat directly to others, not political speech
as is the case here. It contrasts what it calls “a threat plus
context” present in United States v. Dinwiddie, 76 F.3d
913 (8th Cir.1996), and in other out-of-circuit cases,” with
the absence of a direct threat in this case. However, our
cases do not require that the maker of the threat person-
ally cause physical harm to the listener. In Orozco-
Santillan, we made it clear that the speaker did not need
to be able to carry out the threat. Likewise in Mitchell, the
speaker could not possibly have done so. In Gilbert, the
threatening letter mentions neither the intended victim
nor who would carry out the threat. No case to our knowl-
edge has imposed such a requirement,’ and we decline to
" It relies on United States v. Viefhaus, 168 F.3d 392 (10th Cir.1999)
(threat that bomb will be activated in 15 pre-selected major cities); United
States v. Schiefen, 139 F.3d 638 (8th Cir.1998) (personal letter sent to
judge); United States v. Khorrami, 895 F.2d 1186 (7th Cir.1990) (telephone
calls and wanted posters sent directly to Jewish National Fund stating
“death to the Fucking JNF”); United States v. Cooper, 865 F.2d 83 (4th
Cir.1989) (scoping out areas in Washington, D.C. to blow Rajiv Gandhi's
brains out); United States v. Kosma, 951 F.2d 549 (3d Cir.1991) (threat
that 21 guns are going to put bullets through President Reagan’s heart
and brain); United States v. Kelner, 534 F.2d 1020 (2d Cir.1976)
(statement over radio that people are trained who are out now and
intend to make sure that Arafat is assassinated); United States v. Sovie,
122 F.3d 122 (2d Cir.1997) (reiterating Second Circuit test that “true
threat” is one that “on its face and in the circumstances in which it is
made is so unequivocal, unconditional, immediate and specific as to the
person threatened, as to convey a gravity of purpose and imminent
prospect of execution”); United States v. Fulmer, 108 F.3d 1486 (1st
Cir.1997) (silver bullets are coming; considered in context, appeared to
be a threat).
To the contrary, in Viefhaus, for example, the threat consisted of
a hotline message from an unnamed person that violent acts would be
executed by unnamed persons. In Khorrami, the purveyor of a “Crimes
Against Humanity” poster made no statement that he would be the one
to implement the threat. And in United States v. Bellrichard, 994 F.2d
(Continued on following page)
App. 105
now. It is the making of the threat with intent to intimi-
date — not the implementation of it — that violates FACE.
We do not understand Dinwiddie to hold anything
different. Dinwiddie was also a civil suit under FACE.
Mrs. Dinwiddie made comments to Crist outside his clinic,
warning “Robert, remember Dr. Gunn ... This could
happen to you ... He is not in the world anymore. Who-
ever sheds man’s blood, by man his blood shall be shed.”
76 F.3d at 917. She also said: “[Y]ou have not seen violence
yet until you see what we do to you.” Jd. Writing for the
~ Eighth Circuit, Judge Richard S. Arnold explained that in
applying FACE’s prohibition on using “threats of force,”
courts or juries must differentiate between “true threats”
and protected speech. The alleged threat must be analyzed
in light of its entire factual context to determine whether
the recipient of the alleged threat could reasonably con-
clude that it expresses a determination or intent to injure
presently or in the future. As outlined in the opinion, the
Eighth Circuit considers a number of factors when decid-
ing whether statements constitute threats of force: the
reaction of the recipient and of other listeners, whether the
threat was communicated directly to its victim, whether the
maker of the threat had made similar statements to the
victim in the past, and whether the victim had reason to
believe that the maker had a propensity to engage in vio-
lence, but the list is not exhaustive and the presence or
absence of any of these things is not dispositive. Jd. at 925.
1318 (8th Cir.1993), letters warned that God or unnamed parties would
kill the addressees. The same is true of Kelner, where the court noted
that it was not necessary under § 875(c) (prescribing a communication
containing a threat) for the government to prove that Kelner had a
specific intent or a present ability to carry out his threat. 534 F.2d at
1023.
App. 106
(
The court concluded that although Mrs. Dinwiddie did not
specifically say to Dr. Crist, “I am going to injure you,” the
statements in context, and Crist’s reaction to them, show
that they were “threats of force” that “intimidated” Crist.
The court also noted that the fact that Mrs. Dinwiddie did
not specifically say to Crist that she would injure him does
not mean that her comments were not “threats of force.”
Id. at 925 n. 9. Accordingly, the court upheld an injunction
ordering Mrs. Dinwiddie to stop violating FACE (which, as
it pointed out, would have a de minimis effect on her
ability to express herself) and approved the injunction’s
nationwide scope.
ACLA also maintains that “context” means the direct
circumstances surrounding delivery of the threat, or
evidence sufficient to resolVe ambiguity in the words of the
statement — not two weeks of testimony as occurred here
in the district court. Otherwise, ACLA submits, FACE is
facially invalid. However, none of our cases has limited
“context” to explaining ambiguous words, or to delivery.
We, and so far as we can tell, other circuits as well, con-
sider the whole factual context and “all of the circum-
stances,” Merrill, 746 F.2d at 462, in order to determine
whether a statement is a true threat. ACLA points to
United States v. Kelner, 534 F.2d 1020 (2d Cir.1976), but
the Second Circuit’s view is not to the contrary, as we
noted in Lovell. Lovell, 90 F.3d at 372. The defendant in
Kelner, who threatened to assassinate Yasser Arafat
during a radio broadcast that also contained protected
political expression, argued that this insulated his threat
from prosecution; the court observed that this was not the
case “[s]o long as the threat. on its face and in the circum-
stances in which it is made is so unequivocal, uncondi-
tional, immediate and specific as to the person threatened,
App. 107
as to convey a gravity of purpose and imminent prospect of
execution.” Kelner, 534 F.2d at 1027. In Kelner as well as
in Lovell, the threatening statement was considered in
context to determine if it were a true threat or not. See
United States v. Malik, 16 F.3d 45, 50 (2d Cir.1994) (once
there is sufficient extrinsic evidence to show that an
ordinary and reasonable recipient would interpret letter as
threat, case should go to the jury).
Indeed, context is critical in a true t! eats case and
history can-give meaning to the medium. Use of Ryder
trucks — which the Eighth Circuit found to be a true threat
in United States v. Hart, 212 F.3d 1067 (8th Cir.2000) — is
an example that is strikingly similar to the use of
“wanted"-type posters in this case. Hart, who was a known
anti-abortion activist, parked two Ryder trucks in the
driveways of an abortion clinic. He was prosecuted and
convicted of violating FACE. The court held that Hart had
threatened the clinic to intimidate-it by using Ryder
trucks, because a Ryder truck had been used in the Okla-
homa City bombing of the Murrah Federal Building. Hart
knew the clinicians knew this and would fear for their
lives. Thus, use of the Ryder truck was a true threat. Like
the poster format here, the Ryder truck in Hart was a
symbol of something beyond the vehicle: there, a devastat-
ing bomb; in this case, murder.“
ACLA’s contention that allowing consideration of
context beyond the direct circumstances surrounding
delivery of the words themselves creates a facial invalidity
in FACE and the Hobbs Act is unavailing. Of the courts to
'* See also, e.g., United States v. Magleby, 241 F.3d 1306 (10th
Cir.2001) (cross burning).
App. 108
consider the constitutionality of threats statutes, including
the United States Supreme Court in Watts, all have
upheld constitutionality and ACLA points to none that has
disallowed consideration of context.” This makes sense,
because without context, a burning cross or dead rat mean
nothing. In any event, the requirement of intent to intimi-
. date cures whatever risk there might-be of overbreadth.
Nor does consideration of context amount to viewpoint
discrimination, as ACLA contends. ACLA’s theory appears
to be that because the posters did not contain any threat
on their face, the views of abortion foes are chilled more
than the views of abortion-right proponents because of the
random acts of violence committed by some people against
abortion providers. However, FACE itself is viewpoint
neutral. See, e.g., United States v. Weslin, 156 F.3d 292,
296-97 (2d Cir.1998); United States v. Wilson, 154 F.3d
658, 663 (7th Cir.1998) (“The Act punishes anyone who
engages in the prohibited conduct, irrespective of the
person’s viewpoint and does not target any message based
on content. “The Access Act thus does not play favorites: it
protects from violent or obstructive activity not only
abortion clinics, but facilities providing pre-pregnancy and
pregnancy counseling services, as well as facilities coun-
seling alternatives to abortion.’”) (quoting Terry v. Reno,
101 F.3d 1412, 1419 (D.C.Cir.1996)). Moreover, ACLA
could not be liable under FACE unless it made a true
threat with the intent to intimidate physicians. Thus it is
’ See, e.g., United States v. Weslin, 156 F.3d 292 (2d Cir.1998);
United States v. Wilson, 154 F.3d 658 (7th Cir.1998); United States v.
Bird, 124 F.3d 667 (5th Cir.1997); Hoffman v. Hunt, 126 F.3d 575 (4th
Cir.1997); Terry v. Reno, 101 F.3d 1412 (D.C.Cir.1996); United States v.
Soderna, 82 F.3d 1370 (7th Cir.1996); Dinwiddie, 76 F.3d 913; Cheffer v.
Reno, 55 F.3d 1517 (11th Cir.1995).
App. 109
making a threat to intimidate that makes ACLA’s conduct
unlawful, not its viewpoint.
Because of context, we conclude that the Crist and
Deadly Dozen posters are not just a political statement.
Even if the Gunn poster, which was the first “WANTED”
poster, was a purely political message when originally
issued, and even if the Britton poster were too, by the time
of the Crist poster, the poster format itself had acquired
currency as a death threat for abortion providers. Gunn
was killed after his poster was released; Britton was killed
after his poster was released; and Patterson was killed
after his poster was released. Knowing this, and knowing
the fear generated among those in the reproductive health
services community who were singled out for identification
on a “wanted”-type poster, ACLA deliberately identified
Crist on a “GUILTY” poster and intentionally put the
names of Hern and the Newhalls on the Deadly Dozen
“GUILTY” poster to intimidate them. This goes well
beyord the political message (regardless of what one
thinks of it) that abortionists are killers who deserve
death too.
The Nuremberg Files are somewhat different. Al-
though they name individuals, they name hundreds of
them. The avowed intent is “collecting dossiers on abor-
tionists in anticipation that one day we may be able to
hold them on trial for crimes against humanity.” The web
page states: “One of the great tragedies of the Nuremberg
trials of Nazis after WWII was that complete information
and documented evidence had not been collected so many
war criminals went free or were only found guilty of minor
crimes. We do not want the same thing to happen when
the day comes to charge abortionists with their crimes. We
anticipate the day when these people will be charged in
App. 110
PERFECTLY LEGAL COURTS once the tide of this
nation’s opinion turns against child-killing (as it surely
will).” However offensive or disturbing this might be to
those listed in the Files, being offensive and provocative is
protected under the First Amendment. But, in two critical
respects, the Files go further. In addition to listing judges,
politicians and law enforcement personnel, the Files
separately categorize “Abortionists” and list the names of
individuals who provide abortion services, including,
specifically, Crist, Hern, and both Newhalls. Also, names
of abortion providers who have been murdered because of
their activities are lined through in black, while names of
those who have been wounded are highlighted in grey. As a
result, we cannot say that it is clear as a matter of law
that listing Crist, Hern, and the Newhalls on both the
Nuremberg Files and the GUILTY posters is purely
protected, political expression.
Accordingly, whether the Crist Poster, the Deadly
Dozen poster, and the identification of Crist, Hern, Dr.
Elizabeth Newhall and Dr. James Newhall in the Nurem-
berg Files as well as on “wanted”-type posters, constituted
true threats was properly for the jury to decide.
C
ACLA next argues that the true threat instructions
require reversal because they permitted consideration of
motive, history of violence including the violent actions of
others, and the defendants’ subjective motives as part of
context. We have already explained why it is proper for the
whole factual context and all the circumstances bearing on a
threat to be considered. The court also instructed the jury to
consider evidence presented by the defense of non-violence
App. 111
and permissive exercise of free speech. That the contextual
facts may have included the violent actions of others does
not infect the instruction, because the issue is whether a
reasonable person should have foreseen that the Crist
Guilty Poster, the Deadly Dozen Poster, and the Nurem-
berg Files, would be interpreted as a serious threat of
harm by doctors who provide abortions and were identified
on them.
ACLA also contends that the district court employed
the wrong standard of intent, allowing the jury to find in
physicians’ favor regardless of ACLA’s subjective intent.
The court instructed: “A statement is a ‘true threat’ when
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
bodily harm or assault.” This language is taken from
Orozco-Santillan, 903 F.2d at 1265, is an accurate state-
ment of our law, and is faithful to the objective standard
we use for determining whether a statement is a true
threat. For reasons we have already explained, we decline
to read into FACE (or the Hobbs Act) a specific intent to
threaten violence or to commit unlawful acts in addition to
the intent to intimidate which the statute itself requires.
ACLA additionally faults the court for failing to
provide any standard of intent because the elements
instruction merely states that FACE is violated by “a
threat of force to intimidate or interfere with, or attempt
to intimidate or interfere with” physicians’ ability to
provide reproductive health services. As best we can tell,
this boils down to a complaint that the instruction did not
say “in order to” between “threat of force” and “to intimi-
date.” However, this is the plain import of the instruction.
App. 112
ACLA further suggests that the conspiracy instruc-
tion, combined with the “attempt to intimidate” instruc-
tion, could have resulted in liability for an “attempt to
threaten” without proof of an actual threat. We do not see
how, because the jury had to find a true threat before
reaching any other FACE or RICO issues. ACLA also
posits that the standard form instruction, “[ilf you find a
defendant was a member of a conspiracy, that defendant is
responsible for what other conspirators said or did to carry
out the conspiracy, whether or not that defendant knew
what they said or did,” had the effect in this case of violat-
ing the rule of Claiborne that one cannot be held account-
able for the speech of others by reason of mere association,
absent ratification or adoption of it. However, the jury was
instructed that a person does not become a conspirator
'" ACLA argues more broadly that no claim for conspiracy to
violate FACE exists, but we decline to consider the issue because it is
raised for the first time on appeal. Los Angeles News Serv. v. Reuters
Television Intl Ltd., 149 F.3d 987, 996 (9th Cir.1998). It had every
opportunity to assert this view in the district court before judgment,
having moved to dismiss, for summary judgment, and for judgment as a
matter of-law as well as having objected to proposed instructions (but
not on conspiracy). Failing to raise the issue until now, absent any
exceptional circumstances or change in the law, prejudices both the
plaintiffs and the process. Considerable time and resources were
devoted to litigating these claims to verdict. In any event, we cannot see
that substantial injustice occurred. FACE came into being in part
because of “organized,” “concerted” campaigns by “groups” to disrupt
access to reproductive health services, S.Rep. No. 103-117, at 6-7 (1993),
and the instruction effectively channeled the jury away from finding
defendants liable for mere association and instead required it to find
that each defendant threatened physicians intending to intimidate
them or willfully joined with others to do so. See Madsen v. Women’s
Health Center, Inc., 512 U.S. 753, 776, 114 S.Ct. 2516, 129 L.Ed.2d 593
(1994) (freedom of association protected by First Amendment does not
extend to joining with others for the purpose of depriving third parties
of their lawful rights).
App. 113
merely by associating with one or more persons who are
conspirators; rather, one becomes a member of a conspir-
acy by willfully participating in an unlawful plan with the
intent to advance or further some object or purpose of it.
There is no right to associate with others to engage in
activities that are unlawful and unprotected by the First
Amendment, as the making of true threats to intimidate
providers of reproductive health services is. Madsen, 512
U.S. at 776, 114 S.Ct. 2516 (upholding injunction restrain-
ing abortion protestors acting in concert with defendants).
The Seventh Circuit had occasion to consider (and reject) a
similar argument made by abortion protestors who had
been convicted of conspiring to violate FACE in United
States v. Wilson, 154 F.3d 658, 666-67 (7th Cir.1998). It
explained that the Supreme Court in Claiborne was
referring to individuals who were engaging in a peaceful
protest and thus were properly exercising their First
Amendment rights, whereas FACE is aimed at those who
themselves intend to intimidate and thereby deprive
others of their lawful rights. As in Wilson, we are not
persuaded that the instructions allowed any defendant in
this case to be found liable for threats to intimidate for
which he or she was not responsible. They either partici-
pated in making them, or agreed that they should be
made.
Finally, we note that the jury was instructed that
“lelven speech that is coercive may be protected if the
speaker refrains from violence or from making a true
threat. Moreover, the mere abstract teaching of the moral
propriety or even moral necessity for resort to force and
violence is protected speech under the First Amendment.”
It was reminded that “plaintiffs’ claims are based only on
the three statements I have listed for you,” and that it
App. 114
should determine the case as to each defendant and each
claim separately. Accordingly, the court did not abuse its
discretion in formulating the instructions, nor was the
jury incorrectly instructed as a matter of law on true
threats or the elements of FACE.”
D
ACLA joins in Treshman’s assertion that the court
erroneously admitted prejudicial evidence by permitting:
an FBI agent and two federal marshals to testify that the
FBI and the Justice Department considered ACLA’s two
posters to be “serious threats”; references to non-party
violence; introduction of defendants’ arrests; physicians’
counsel to tell the jury about Bray’s invocations of the
Fifth Amendment through a summary of his deposition;
references to actions of certain defendants and non-parties
on the abortion debate and to such things as the signing of
“Defensive Action petitions” by five or six of the individual
defendants; an exhibit with Rev. Sullivan’s hearsay opin-
ion that ACLA is a “cancer” which prolifers must “cut out
immediately” before it “destroys the pro-life movement” to
” ACLA cites other errors in the Hobbs Act and RICO instructions
but offers no authority in support. Neither does it indicate that any
objection on these issues was preserved. Its argument on appeal is not
developed. In any event, the instructions appear to track model
instructions and are not obviously wrong. For these reasons, we do not
discuss these challenges and summarily reject them.
ACLA also contends that the court compromised its right to a fair
trial by telling the-jury that the United States Supreme Court has
declared that women have a constitutional right to abortion, and no one
is permitted to violate the law because of their views about abortion. It
objected on the ground that the charge was “death to us” but makes no
substantial argument on appeal why there was reversible error on this
account. We summarily reject this argument as well.
App. 115
remain in the exhibit books; and by permitting deposition
summaries to be introduced. ACLA recognizes that eviden-
tiary rulings are normally reviewed for an abuse of discre-
tion, but argues that in cases raising First Amendment
issues appellate courts must independently examine the
record for evidentiary errors which penalize political
speech or allow “a forbidden intrusion on the field of free
expression.” Milkovich v. Lorain Journal Co., 497 U.S. 1,
17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (citation omitted).
We decline ACLA’s invitation to review evidentiary rulings
de novo. No case of which we are aware suggests that the
obligation to examine the record independently extends so
far. Nor do we believe that appellate judges should retry
cases, as ACLA’s proposal would have us do. Accordingly,
we review the district court’s evidentiary rulings in this
case, as we do evidentiary rulings in all cases, for abuse of
discretion. None appears.
Testimony about the law enforcement officers’ re-
sponse to the Crist and Deadly Dozen “GUILTY” posters
had some tendency to show the physicians’ state of mind
when they found out they were named on “wanted”-type
posters, as well as to show the knowledge and intent of
ACLA in distributing the posters regardless of the reaction
they precipitated. Both are non-hearsay purposes. No
testimony was allowed about what officers thought the
posters meant. That FBI agents and United States Mar-
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