Reply Brief — American Coalition of Life Activists v. Planned Parenthood of the Columbia/Willamette, Inc. (No. 05-1083)

the only poster-maker known to have acted violently, and

no violence followed ACLA's posters.

Even if there were a “pattern” between violence

following the past publication of posters by non-parties, it

could not convert petitioners’ allegedly “similar” posters,

which were never followed by violence, into “threats.”

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Ill. THE PUNITIVE DAMAGES MUST BE STRICKEN

Contrary to respondents’ contention, punishment of

ACLA’s speech with any amount of punitive damages

under FACE - the first award of its kind in the country —

is preeminently an issue calling for this Court’s review.”

See Gertz v. Rotert Welch, Inc., 418 U.S. 323 (1974) (for-

bidding imposition of punitive damages for libelous speech

on matters of public concern absent malice). In this case,

public political speech was given less protection than libel.

Respondents do not dispute the point that petitioners

can hardly be guilty of reprehensibility warranting puni-

tive damages when a dozen circuit court judges split

evenly on whether petitioners’ speech is fully protected,

and when every judge who reviewed this case found the

communications at least substantially protected. Pet. 25-

26. If the result here does not violate State Farm's consti-

tutionally mandated presumption against punitive dam-

ages, State Farm v. Campbell, 538 U.S. 408, 419 (2003), it

is hard to imagine what result would.

IV. THE RICO AND FACE ISSUES LIKEWISE WAR-

RANT REVIEW

A. The Ninth Circuit Was Bound To Follow

Scheidler. Respondents argue that the fatal defect in

* Despite respondents’ quibbling, Resp. Br. 23 n.26, the punitive

damages issue is “fairly included” within the First Amendment

question, which treats the various punishments of ACLA’s speech.

S.Ct.R. 14.1(a).

their RICO claim was “waived.” But ACLA could not have

“waived” an error that was not an error at the time of trial

(or even on the first appeal). Even the Ninth Circuit

recognizes that a party “should not be penalized for failing

to anticipate a change in the controlling law.” Pierce

Parking Co. v. John Morrell & Co., 633 F.2d 1362, 1365

(9th Cir. 1980).

As this Court held in Johnson v. United States, 520

U.S. 461, 468 (1991): “[W]here the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal — it is enough that an error be ‘plain’ at the time of

appellate consideration.” Otherwise, counsel would be

forced to make “a long and virtually useless laundry list of

objections to rulings ... plainly supported by existing

precedent.” Id."

Nothing could be plainer after Scheidler than the legal

nullity of respondents’ extortion theory. Until Scheidler, all

circuit courts, including the Ninth Circuit, held that Hobbs

Act extortion did not require that the extortionist actually

obtain property from the victim. See Scheidler v. NOW,

537 U.S. 393, 414-17 (2003) (Stevens, J., dissenting)

(listing cases and acknowledging point).

Respondents’ own opposing brief argues that if they

had known their extortion theory was defective, they

would have substituted “other predicate acts.” Resp. Br. 27

n.31. In other words, respondents argue they should not be

penalized for failing to anticipate the change in law, but

petitioners should be. In any case, there are no other

° Respondents’ reliance on Ackerman v. United States, 340 U.S.

193, 198 (1950), is misplaced. Resp. Br. 25. Ackerman involved parties

who declined to appeal and allowed the judgment to become final.

" Petitioners did not, as respondents suggest, raise the “obtaining”

issue at the motion to dismiss stage in 1996 and then abandon it. Resp.

Br. 25. The issue raised back then was whether the right to perform

abortions was “property,” not whether petitioners had to obtain that

property. Pet. App. 383, 386-88.

9

predicate acts that could apply to petitioners.” Scheidler,

537 U.S. at 407.

Respondents further argue that the “law of the case”

and the “rule of mandate” barred the Ninth Circuit from

following Scheidler. Resp. Br. 24. That claim flies in the

face of this Court’s teaching that lower courts must apply

an intervening Supreme Court decision retroactively “in all

cases still open on direct review....” Harper v. Virginia

Dept of Taxation, 509 U.S. 86, 96 (1993); see LLDF Br. 3-5.

Moreover, respondents ignore the long-settled rule that an

intervening change of law is an exception to law of the

case. See Pet. 17 & n.8. And, in any event, this Court is not

bound by law of the case or by any lower court’s mandate.

See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 881 n.1

(1990); AFA Br. 5.

Finally, respondents do not dispute that RICO stand-

ing is a jurisdictional element always open to review.

Evans v. City of Chicago, 434 F.3d 916, 924 (7th Cir. 2006).

B. Respondents Concede Lack Of Standing.

Respondents do not deny that the two abortion clinics had

no connection to any person named in ACLA’s posters. Pet.

10-11, 28-29. Respondents merely assert that the jury

mysteriously “found” that the clinics were somehow

injured by communications that do not concern them.

Resp. Br. 28.

Recognizing that Article III standing cannot be

waived, respondents characterize this issue as one of

statutory standing. Resp. Br. 28. Because the clinics

“ In an amicus brief in Scheidler, respondents’ own counsel argued

that since “the federal circuit courts have uniformly held” that an

extortionist need not obtain property from the victim, “|t}his Court

should not declare [such a requirement] to be the law.” See NOW

Amicus Brief, Nos. 01-1118, 01-1119, at 12, 23. Yet respondents now

offer the ludicrous argument that ACLA —- but not respondents! — was

on notice of what the law would be because the “obtaining” issue was

“noted” during oral argument before this Court in 1993. Resp. Br. 25-26.

What matters is not an issue “noted” thirteen years ago, but this

Court’s 2003 decision in Scheidler, which applies to this still pending

case.

10

concededly lacked the minima for Article III standing, they

ipso facto cannot reach the higher threshold of statutory

standing. Pet. 29. In no event “may Congress abrogate the

Art. III minima: A plaintiff must always have suffered a

distinct and palpable injury to himself.... ” Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979).

C. The “FACE Conspiracy” Is Fictitious. The

fictitiousness of the FACE conspiracy claim is jurisdic-

tional, not a mere failure to prove elements, as respon-

dents contend. Resp. Br. 29. Respondents cite Arbaugh v.

Y & H Corp., 126 S.Ct. 1235 (2006), a case easily distin-

guished. There, this Court held that Title VII’s application

to firms with fifteen or more employees was not jurisdic-

tional, but only a failure of plaintiff’s proof that defendant

had waived. Jd. at 1238, 1245. Here, respondents did not

merely fail to prove an element of “FACE conspiracy,” but

rather pursued a conspiracy claim that does not exist in

federal law.”

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DENIS V. BRENAN EDWARD L. WHITE III

CHRISTOPHER A. FERRARA Counsel of Record

Of Counsel on Petition THOMAS MORE LAW CENTER

AMERICAN CATHOLIC LAWYERS 24 Frank Lloyd Wright Drive

ASSOCIATION, INC. P.O. Box 393

P.O. Box 10092 Ann Arbor, MI 48106

Fairfield, NJ 07004-6092 734-827-2001

973-244-9895 April 7, 2006

" It is irrelevant that ACLA proffered an alternative “FACE

conspiracy” instruction. Resp. Br. 29. “[Nlo action of the parties can

confer subject-matter jurisdiction upon a federal court. Thus, consent of

the parties is irrelevant.” Insurance Corp. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 702 (1982) (also explaining that courts must

dismiss whenever it appears there is no subject matter jurisdiction).

App. 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLANNED PARENTHOOD — United States Court of

OF THE COLUMBIA/ Appeals Consolidated

WILLAMETTE, Inc., et al., Docket No. 99-35320

(Docket Nos. 99-35320,

99-35325, 99-35327,

v. 99-35331, 99-35333,

AMERICAN COALITION _—-99-39405)

OF LIFE ACTIVISTS, et al., On Appeal From United

States District Court

District of Oregon

Honorable Robert E. Jones

Docket No. 95-1671-REJ

Plaintiffs-Appellees,

Defendants-Appellants.

PLAINTIFFS-APPELLEES’ OPPOSITION

TO DEFENDANTS-APPELLANTS’ JOINT

MOTION TO STAY THE MANDATE

* * *

The Supreme Court Is Not “Likely” To Grant

Certiorari in This Case

Defendants-Appellants’ assertion that the Supreme

Court is “likely” to grant certiorari is both presumptuous

and merit'ess. indeed, the Supreme Court is unlikely to

grant certiorari at this time — irrespective of the substan-

tive merits of the issues raised in a petition — precisely

because there is no final judgment in this case.

* * *

In its May 16, 2002 en banc Opinion in this case, this

Court remanded the case to the District Court to consider

the constitutionality of the punitive damages award. As

a result, there is no final judgment in this case. The

App. 2

Supreme Court has a long-standing policy against grant-

ing review until the courts below have rendered a final

judgment.

* * *

The Supreme Court’s practice of denying certiorari of non-

final judgments is not a new development. The Supreme

Court may deny certiorari at this time and, after the

District Court and this Court decide the outstanding

punitive damages question, Defendants-Appellants might

seek Supreme Court review again. Thus, if this Court were

to stay issuance of the mandate pending resolution of

Defendants-Appellants’ upcoming petition, and the Su-

preme Court were to deny certiorari; Defendants--

Appellants would have guaranteed themselves a lengthy

period of time between their two anticipated cert petitions

(whatever the merits of any such petition). In other words,

given the remand ordered by this Court, Defendants-

Appellants’ petition at this juncture will, in fact, delay the

final resolution of the case, which compels this Court to

deny the requested stay.

*

Dated: July 18, 2002

Respectfully submitted,

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

By: /s/ Maria T. Vullo

Maria T. Vullo

Alisa A. Pincus

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

App. 3

Carol J. Bernick, Esq.

DAVIS WRIGHT TREMA'NE, LLP

1300 S.W. Fifth Avenue, Suite 2300

Portland, Oregon 97201

(503) 778-5233

Roger K. Evans, Esq.

PLANNED PARENTHOOD

FEDERATION OF AMERICA, INC.

810 Seventh Avenue

New York, New York 10019

Attorneys for Plaintiffs-Appellees

App. 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLANNED PARENTHOOD _ United States Court of

OF THE COLUMBIA/ Appeals

WILLAMETTE, Inc., et al., Docket No. 04-35214

Plaintiffs-Appellees, On Appeal From United

States District Court

District of Oregon

AMERICAN COALITION Honorable Robert E. Jones

OF LIFE ACTIVISTS, et al., Docket No. 95-1671-JO

Defendants-Appellants.

V.

PLAINTIFFS-APPELLEES’ OPPOSITION TO

DEFENDANTS-APPELLANTS’ JOINT

MOTION TO STAY ISSUANCE OF THE MANDATE

K x ~

B. No Good Cause Exists For A Stay

Even if this Court were to conclude that ACLA’s upcom-

ing certiorari petition might present a substantial question,

ACLA’s motion still should be denied because no good cause

exists for a stay of the mandate. ACLA recognizes that

“(tlhe only issue on remand is whether plaintiffs will accept

the remitted damages or want a retrial.” (Motion 725, at

10.) Thus, all that remains in this litigation is for the

district court to follow this Court’s clear mandate as to the

punitive damages amounts set by this Court.’

* * *

* Assuming, as Physicians do, that this litigation is over and this

Court’s September 6, 2005 Opinion stands, Physicians do not intend to

ask the district court for a new trial.

App. 5

Conclusion

For the reasons discussed above, Physicians respect-

fully request that ACLA’s motion be denied and the man-

date be issued.

Dated: November 4, 2005

Respectfully submitted,

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

By: /s/ Maria T. Vullo

Maria T. Vullo

William J. Taylor, Jr.

Jessica Sombat

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

Carol J. Bernick, Esq.

DAVIS WRIGHT TREMAINE, LLP

1300 S.W. Fifth Avenue, Suite 2300

Portland, Oregon 97201

(503) 778-5233

Roger K. Evans, Esq.

PLANNED PARENTHOOD

FEDERATION OF

AMERICA, INC.

434 West 33rd Street, 12th Floor

New York. New York 10001

(212) 261-4708

Attorneys for Plaintiffs-Appellees

App. 6

No. 02-563

In the

Supreme Court of the United States

AMERICAN COALITION OF

LIFE ACTIVISTS, ET AL.,

Petitioners,

Vv.

PLANNED PARENTHOOD OF THE

COLUMBIA/WILLAMETTE, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

Maria T. Vullo

Counsel of Record

Martin London

Alisa Pincus

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

Attorneys for Respondents

App. 7

Carol J. Bernick, Esq.

DAVIS WRIGHT TREMAINE, LLP

1300 S.W. Fifth Avenue, Suite 2300

Portland, Oregon 97201

(503) 778-5233

Roger K. Evans, Esq.

PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC.

810 Seventh Avenue

New York, New York 10019

(212) 261-4708 November 12, 2002

* * *

ACLA appealed. In an opinion by Judge Kozinski, a

three-judge panel reversed, ruling that ACLA must

threaten that it or its agents personally will commit the

threatened violence.” The Ninth Circuit reheard the case

en banc. In an opinion authored by Judge Rymer, joined by

Chief Judge Schroeder and Judge Hawkins, Silverman,

Wardlaw and Rawlinson, the en banc majority found that

petitioners, with intention to intimidate, threatened

violence, and affirmed the liability verdict and injunction,

and remanded to the District Court for further proceed-

ings on the amount of the punitive damages award.”

* * *

* See note 33, infra.

Those proceedings have not occurred and, thus, there is no final

judgment in this case. See Republic Natural Gas Co. v. Oklahoma, 334

U.S. 62, 68 (1948) (holding that a judgment is not final “where liability

has been determined and all that needs to be adjudicated is the amount

of damages”). “[E]xcept in extraordinary cases, the writ is not issued

until final decree.” Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251, 258 (1916). See also Brotherhood of Locomotive Firemen v.

Bangor & Aroostook R.R. Co, 389 U.S. 327, 328 (1967).

a ; tan j

No. 05-1083 | “ais OD goon

Ws ae: L One. a ae |

IN THE eee OF Thy:

ate Clem

Supreme Court of the Gnited States ———

AMERICAN COALITION OF LIFE ACTIVISTS,

ET AL.,

Petitioners,

PLANNED PARENTHOOD OF THE

COLUMBIA/WILLAMETTE, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AMICUS BRIEF OF THE AMERICAN FAMILY

ASSOCIATION CENTER FOR

LAW AND POLICY IN SUPPORT OF PETITIONERS

STEPHEN M. CRAMPTON

Counsel of Record

BRIAN FAHLING

MICHAEL DEPRIMO

THE AMERICAN FAMILY

ASSOCIATION CENTER FOR

LAW & POLICY

100 Parkgate Drive

P.O. Drawer 2440

lupelo, MS 38803

(662) 680-3886

Counsel for Amicus

i

TABLE OF CONTENTS

Page

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ean © DE -PRIRCTUIIEIN = occa c ev ieseveveesceeuee |

SEEEOPNEEEES sg co cv v-eveveseves PPE OP TEP Pee HS 2

1. THE FIRST AMENDMENT IS MOST

NECESSARY WHEN THE SPEECH IS MOST

i eas aie ak dh 2

Il. THIS CASE MERITS SUMMARY VACATUR

AND REMAND FOR FURTHER

CONSIDERATION IN LIGHT OF SCHEIDLER v.

NOW AND VIRGINIA v. BLACK. .. 0.0.05 0000 es 4

EE rrr re as eer 6

il

TABLE OF AUTHORITIES

Page

CASES

Brandenburg v. Ohio, 395 U.S. 444 (1969) ...........-. 3

Christiansen v. Colt Industries Operating Corp., 486 U.S.

SPR EUOT 6 vd.uk-een 405 0a a eneeeses b4eed basaens 5

City of Houston v. Hill, 482 U.S. 451 (1987) ...........4. 2

Cohen v. California, 403 U.S. 15 (1971) ..........0245. 3

Hess v. Indiana, 414 U.S. 105 (1973) ...........-.5005- 3

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ..°. 3

_ Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990) .... 5

Madsen v. Women's Health Center, Inc., 512 U.S. 753

CEP soe nells hike KR Oar eee ede eee eeaseue 3

Messenger v. Anderson, 225 U.S. 436 (1912) .....-....-. 5

NAACP v. Claiborne Hardware Co.,

ee GR UIE, ko cbt coeyc sae veaseieanes 1,3

New York Times, Co. v. Sullivan, 376 U.S. 254 (1964) .... 3

Organization for a Better Austin v. Keefe, 402 U.S. 415

SPP chvo bons ReKs cod cade Meares Wane esen 3

Scheidler v. NOW, 537 U.S. 393 (2003) ............ 2,4, 5

Terminiello v. Chicago, 337 U.S. 1 (1949) .............. 3

ill

United States v. Eichman, 496 U.S. 310 (1990) .......... 3

Virginia v. Black, 538 U.S. 343 (2003)............. 2,4, 5

Watts v. United States, 394 U.S. 705 (1969) ............. 3

OTHER

3-30 Moore’s Manual Fed. Practice and Procedure ....... 5

l

INTEREST OF AMICUS'

The American Family Association Center for Law and Policy

(AFA-CLP) is the legal arm of the American Family

Association. AFA-CLP litigates vigorously in defense of the

free speech rights of those who stand up for life and family. In

particular, AFA-CLP attorneys have represented individuals sued

under FACE and RICO, the two federal statutes underlying the

lawsuit in the present case.

The case at bar involves precisely the attempt to use RICO

and FACE to restrict anti-abortion speech. The AFA-CLP is

concerned both with the misuse of RICO and FACE in this case

and with the theory, endorsed by the Ninth Circuit, that posters

and a website which identify and rebuke political opponents can

support multi-million dollar damages liability and injunctive

restraints.

The judgment below imposes liability for tactics -- publicly

identifying and shaming others for their complicity in acts the

speaker finds reprehensible -- which even the most strictly

pacifist pro-lifer or, for that matter, member of some other

movement, could, and should, be entitled to employ. The AFA-

CLP therefore submits this amicus brief in support of petitioners.

This brief is being filed with the consent of the parties.

SUMMARY OF ARGUMENT

This is a textbook free speech case. The posters and website

at issue identified physicians who do abortions, a tactic in the

same tradition as the identification of boycott violators in

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 903-04, 909-

'No counsel for a party authored this brief in whole or in part. No person

or entity aside from the AFA-CLP, its members, or its counsel made a

monetary contribution to the preparation or submission of this brief.

The AFA-CLP is a division of the American Family Association (AFA).

The AFA has no parent corporation ané no stock.

2

10 (1982). The controversial nature of the speech makes the

protections of the First Amendment especially important here.

This Court should therefore grant review.

In the alternative, this Court should grant certiorari,

summarily vacate the decision below, and remand for further

consideration in light of Scheidler v. NOW, 537 U.S. 393 (2003),

and Virginia v. Black, 538 U.S. 343 (2003), as both decisions

bear directly upon the present case, but the Ninth Circuit has yet

to address the impact of either decision on this case.

ARGUMENT

This is a classic, textbook free speech case. The provocative

posters and website at issue fall into no recognized exception to

the protections of the First Amendment. Respondents did not

even contend that liability should rest on the claim that the

speech in question constituted “fighting words” or unlawful

incitement. While respondents did go to the jury on the claim

that the speech was a “threat,” see Pet. App. 416-18, 429, the en

banc Ninth Circuit correctly acknowledged that the posters and

website contained no threatening language. Pet. App. 73, 120.

See Pet. App. 78-79 (recounting speech in question). The First

Amendment therefore requires judgment for petitioners.

The Ninth Circuit, by a 6-5 vote, sought to evade this result by

the unveiling of a new exception to the First Amendment:

“format” liability. This unprecedented -- and theoretically

unlimited -- exception strikes at the very heart of the First

Amendment. This Court should grant review because of the

grave importance of the questions presented.

I. THE FIRST AMENDMENT IS MOST NECESSARY

WHEN THE SPEECH IS MOST CONTROVERSIAL.

Speech that is popular or pleasant has little need for

constitutional protection. City of Houston v. Hill, 482 U.S. 451,

3

462 n.11 (1987). The true test of the right to free speech, under

the First Amendment to the United States Constitution, is the

strength of the protection that right affords to speech that is

unpopular, unpleasant, disturbing, or even despised. E.g., United

States v. Eichman, 496 U.S. 310 (1990) (flag burning).

Accordingly, this Court has insisted in case after case that the

right to free speech embraces “vehement, caustic, and sometimes

unpleasantly sharp attacks” upon the views or conduct of others,

New York Times, Co. v. Sullivan, 376 U.S. 254, 270 (1964), and

that the First Amendment protects even such “deeply offensive”

speech as “virulent ethnic and religious epithets, see Terminiello

v. Chicago, 337 U.S. | (1949), vulgar repudiations of the draft,

see Cohen vy. California, 403 U.S. 15 (1971), and scurrilous

caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

(1988).” Eichman, 496 U.S. at 318-19. Accord Madsen v.

Women's Healti Center, Inc., 512 U.S. 753, 774 (1994)

(“insulting, and even outrageous, speech”) (internal quotation

marks and citations omitted).

The premise of the Ninth Circuit’s holding is that petitioners

should have known that the format of their two “GUILTY”

posters would scare the respondents. But where the

communication itself contains no threats, there is no “scary

speech” exception to the First Amendment. If there were, the

decisions in Terminello and numerous other precedents of this

Court would have to be overruled. See NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982); Brandenburg v. Ohio, 395

U.S. 444 (1969) (per curiam); Watts v. United States, 394 U.S.

705 (1969) (per curiam); Hess v. Indiana, 414 U.S. 105, 108-09

(1973) (per curiam); Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971).

The Ninth Circuit's ratio decidendi is thus completely foreign

to this Court’s First Amendment jurisprudence.

This Court should grant review.

4

THIS CASE MERITS SUMMARY VACATUR AND

REMAND FOR FURTHER CONSIDERATION IN

LIGHT OF SCHEIDLER v. NOW AND VIRGINIA v.

BLACK.

In the alternative, this Court should summarily vacate the

judgment of the Ninth Circuit and remand for further

consideration in light of Scheidler v. NOW, 537 U.S. 393 (2003),

and Virginia v. Black, 538 U.S. 343 (2003).

Both decisions are directly applicable. The Scheidler decision

rejects precisely the theory of Hobbs Act extortion, and thus

RICO liability, upon which the respondents’ RICO claim rests in

this case.2 And the Black decision not only is the most recent

“threats” case from this Court, but more importantly clarifies that

a “threat” entails an “expression of an intent fo commit an act of

unlawful violence,” Black, 538 U.S. at 359 (emphasis added),

not merely the exposure of someone, by publicly naming that

person, to the risk that an unconnected third party might do

*In the present case, respondents’ theory of Hobbs Act “extortion” -- the sole

predicate offense for the RICO claim, Pet. App. 422 -- suffers from the same

defects as the Hobbs Act “extortion” claim this Court rejected in Scheidler.

See Pet. App. 422-25. Namely, there was no requirement that the jury find

the element of “obtaining of property.” See Final Jury Instructions pp. 9

(“Plaintiffs claim that [the alleged threats were] made in an unlawful attempt

to prevent the plaintiff from continuing to provide abortions”), 24 (RICO

enterprise allegedly had “purpose . . . to drive [abortion providers] out of

business”), 30 [Pet. App. 425] (“extortion” means threat designed “to

deprive a plaintiff of his or her property”), 32 [Pet. App. 422-23]

(“Property” includes “right to provide abortion services free from wrongful

threats, violence, coercion, or fear” and “may also include money plaintiffs

contend they were required to spend on security measures’), 33 [Pet. App.

423] (extortionate “intent” means “intent of depriving a plaintiff of his or

her property or protected right to provide abortion services”), 34 [Pet. App.

423] (“deprive . . . of property or protected rights”), 35 [Pet. App. 424]

(same).

harm.

Scheidler plainly requires reversal of the RICO portion of this

case, leaving only the FACE claims. And Black requires reversal

-- or at least warrants reconsideration of -- the “threat” theory

underlying the FACE (and RICO) claims.

Remarkably, the Ninth Circuit refused even to consider the

impact of Scheidler and Black in this case. Invoking the doctrine

of “law of the case,” Pet. App. 32-34, the Ninth Circuit held that

it “could not go there,” Pet. App. 32.

Supervening Supreme Court decisions are, of course, one of

the standard exceptions to the law of the case. See 3-30 Moore’s

Manual Fed. Practice and Procedure, Sec. 30.31(1)(b). The

decision below is thus plainly erroneous on its own terms.

But even more to the point, this Court is not bound by a lower

court’s mandate or law of the case. Lujan v. National Wildlife

Fed'n, 497 U.S. 871, 881 n.1 (1990) (though court of appeals

had invoked the law of the case, “the earlier panel’s ruling does

not, of course, bind this Court”); Christiansen v. Colt Industries

Operating Corp., 486 U.S. 800, 817 (1988) (“a court of appeals’

adherence to the law of the case cannot insulate an issue from

this Court’s review”); Messenger v. Anderson, 225 U.S. 436, 444

(1912) (regarding law of the case in lower court, “[o]fcourse this

court, at least, is free when the case comes here”).

Hence, this Court undisputably may direct the Ninth Circuit

to consider the impact of Scheidler and Black on the present case.

Given that such further consideration might go a long way to

sharpening, or even eliminating, the issues presented here, this

Court ought strongly to consider this simple option.

CONCLUSION

This Court should grant the petition for a writ of certiorari.

Respectfully submitted,

Stephen M. Crampton

Counsel of Record

Brian Fahling

Michael DePrimo

The American Family

Association Center for

Law & Policy

100 Parkgate Drive

P.O. Drawer 2440

Tupelo, MS 38803

(662) 680-3886

Counsel for Amicus

March 27, 2006