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

Q

The governing principle is, rather, that of Harper v. Virginia

Department of laxation, supra:

When this Court applies a rule of federal law to the

parties before it, that rule is the controlling interpre-

tation of federal law and must be given full retroactive

effect in all cases still open on direct review and as to

all events, regardless of whether such events predate

or postdate our announcement of the rule.

509g U.S. at 97. This case was still open on direct review

when Virginia v. Black and Scheidler v. National Organization

for Women, Inc. were decided. In refusing to reconsider on

the basis of those decisions, then, the Ninth Circuit did ex-

actly what this Court in Harper declared the federal courts

must not do: permit the substantive law to shift and spring

from party to party and case to case. /d.

The Ninth Circuit did the same thing on the RICO as-

pect of the case as on the FACE Act/true-threat aspect. ‘The

RICO Act relates to “racketeering activity,” 18 U.S.C.A.

§ 1961(1), and in the long listing of the various offenses

that fall under that heading—offenses as diverse as pension

and welfare fund fraud and peonage, slavery and trafficking

in persons—the only one which even colorably bears upon

the petitioners’ conduct is that “relating to. . . extortion,”

with reference made to 18 U.S.C.A. § 1951: the Hobbs

cued that none of the defendants’ challenges, including that pertaining to the

intent requirement of a “true threat,” merited review. 422 F.3d at 966. The

inference drawn by the Court of Appeals was, apparently, that this Court's

consideration of the Solicitor General's submission and its denial of certionart

constituted some sort of quasi-adjudication on the merits.

\ny such inference is, of course, foreclosed by the general rule to the

contrary, see Missouri v. Jenkins, supra. but it also is specifically negated by

the acuion of this Court the very next term in birgnia v. Black. Vhere this

Court expressly held that there must be “a serious expression of an intent to

commit an act of unlawtul violence to a particular individual or group of in-

dividuals.” 338 U.S. at 359. thereby repudiating the Solicitor General's prior

contention. Plainly, then, the dental of certiorar7 could not have been, and in

any event as a matter of law was not, Vissourt >. Jenkins, an adjudication on

the merits of the true-threat intent question,

IO

Act. The plaintiffs in point of fact allude to extortion in

their complaint. Amended Complaint, Paragraph 93. Yet

the Hobbs Act defines “extortion” as “the obtaining of prop-

erty from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right,” 18 U.S.C.A. § 1951(b)(2) (emphasis

added), and, given this narrowly-demanding language, one

must question whether as a matter of law an extortion the-

ory was arguably viable even a decade ago when the com-

plaint was filed. As of 2003, however, with the decision of

this Court in Scheidler v. National Organization for Women,

Inc., supra, there was and is no question that it was and is

not.

In deciding Scheidler, this Court noted the specific re-

quirement of the Hobbs Act that a person must “obtain”

property from another party to commit extortion. 537 U.S.

at 404. There was no dispute that those defendants inter-

fered with, disrupted and in some instances completely de-

prived those plaintiffs of their ability to exercise their prop-

erty rights; in fact, it was acknowledged by counsel that cer-

tain aspects of his clients’ conduct were criminal. Id.

But even when their acts of interference and disrup-

tion achieved their ultimate goal of “shutting down” a

clinic that performed abortions, such acts did not con-

stitute extortion because petitioners did not “obtain”

respondents’ property. Petitioners may have deprived

or sought to deprive respondents of their alleged prop-

erty right of exclusive control of their business assets,

but they did not acquire any such property.

Id. at 404-405. lo conclude that such actions constituted

extortion would, Chief Justice Rehnquist wrote, “effectively

discard the statutory requirement that property must be ob-

tained from another, replacing it instead with the notion that

merely interfering with or depriving someone of property is

sufficient to constitute extortion.” [d. at 4o5. It would also

eliminate the recognized distinction between extortion and

II

the separate crime of coercion. Jd. The Hobbs Act carefully

defines its key terms, and therefore this Court was equally

careful in making certain that the definitional distinctions

were observed. Jd. at 407-408. This Court has continued

its analytical precision in its recent decision in the same lit-

igation holding that threatening or committing physical vi-

olence that is unrelated to extortion or robbery falls outside

the scope of the statute. Scheidler v. National Organization

for Women, Inc., —— U.S. __, 2006 WL 461512 (2006).

Yet the Ninth Circuit refused outright to apply Scheidler

to the RICO Act aspect. As with Virginia v. Black and the

FACE Act true-threat intent requirement, it “could not go

there,” PPCW VIII,-supra, 422 F.3d at 966—even though

it was obligated to go there by Harper v. Virginia Depart-

ment of laxation. The Court of Appeals’ casual disregard of

both of these Supreme Court precedents was bad enough—

injunctive restraint on their First Amendment liberty and a

$16,000,000 liability in damages—for the petitioners, but

the impact is comparably-bad for many others, this aricus

included and the persons it represents. ‘he raison d'etre tor

the Life Legal Defense Foundation, as set forth in its mis-

sion statement, Is

[t]o give innocent and helpless human beings of any

age, particularly unborn children, a trained and com-

mitted defense against the threat of death, and to sup-

port their advocates in the nation’s courtrooms. LLDF

will accomplish its mission and purpose through the

law and education.

Supporting the advocates of unborn children inside the

courtroom plainly includes knowing what to tell them out-

side the courtroom about the state of the law and their po-

tential liability should a court deem them to have violated

it. Yet LILDF at this point has no way of knowing what the

law is in the Ninth Circuit and no way of knowing what

to tell its clients. When a pro-life advocate approaches an

LILDE attorney and inquires what tactics he or she may

32

lawfully employ in publicizing a doctor who kills the un-

born, counsel will not know what to say. With respect, cer-

tainly, to the legal character of a “threat” under the FACE

Act, counsel can tell the client that this Court in Virginia

v. Black held, albeit in a wholly different statutory context,

that there must be a “serious expression of an intent to

commit an act of unlawful violence to a particular individ-

ual or group of individuals,” but counsel must also tell the

client that in the Ninth Circuit that authoritative holding

is “not always adhered to in our cases. .. .” The attorney

can similarly advise the client that under precedents of this

Court “debate on public issues should be uninhibited, ro-

bust, and wide open, . . . vehement, caustic, and sometimes

unpleasantly sharp. ..,” Watts v. United States, 394 U.S.

705, 708 (1969), but that in the Nintii Circuit publicizing

an abortion-providing doctor can be a “true threat,”” not

because the activist “necessarily intend[ed] to hurt or kill

these particular providers,” but “because of [a] pattern of

previous violence” engaged in by other, unrelated people

and because he or she might “reasonably foresee” that iden-

tifying the physicians would be interpreted as a serious ex-

pression of intent to harm. PPCW VIII, supra, 422 F.3d at

958-59. And, with respect to the potential for being found

a “racketeer” under RICO, the attorney can tell the pro-

life activist that, yes, the Supreme Court has held the ac-

tivities in question not to be “extortion” and therefore not

subject to liability, but that in the Ninth Circuit liability in

the many millions of dollars has been imposed nonetheless.

Should the non-lawyer activist thereupon observe that he

or she, with lay naivete, had always thought the Supreme

Court had the last word on such matters, counsel will be

able to do no more than shrug.

Attorneys need to know what to tell clients. Clients need

to know what they may and may not do under the law. Above

all, the law—in particular, the First Amendment as applied

to statutes such as the FACE and RICO Acts—must be

13

read to provide the “breathing space”’ that liberty requires.

National Association for the Advancement of Colored People v.

Button, 371 U.S. at 433. There is no breathing space here.

This Court should grant certiorari and then reverse.

CONCLUSION

It is therefore respecttully submitted that for these rea-

sons this Court should grant the petition for certiorari and

then reverse the final judgment of the United States Court

of Appeals for the Ninth Circuit.

Respectfully submitted,

Catherine W. Short

Counsel of Record

Attorney for Amicus

Life Legal Defense Foundation

P.O. Box 2105

Napa, CA 94558

(707) 224-6675

March 27, 2006

Case No. 05-1083

In The

Supreme Court of the Anited States

AMERICAN COALITION OF LIFE ACTIVISTS, ET AL..,

Petitioners,

v.

PLANNED PARENTHOOD OF THE

COLUMBIA/WILLAMETTE, ET AL.,

Respondents.

On Petition For Writ Of Certiorari To The

United States Court of Appeals For the Ninth Circuit

BRIEF OF AMICUS CURITAE, PAUL dePARRIE, IN

SUPPORT OF PETITION

DINA VITTORIA CELLINI

Counsel of Record

(Admission pending)

211 Bal Cross Drive

Bal Harbour, FL. 33154

305-308-4668

TABLE OF CONTENTS

a ee aecpveveeneeeeceecereresecesecs l

Statement of the Case

Reasons for Granting the Petition

The Ninth Circuit's 6-5 affirmance of a plainly

unconstitutional verdict and injunction is a direct

attack on freedom of the press for amicus and all

similarly situated commentators and activists......... 4

The Ninth Circuit has abandoned any pretext of

protecting controversial speech

I. The Ninth Circuit has imposed an indiscernible

standard for pro-life speech and journalism

IV. The Ninth Circuit has effectively outlawed a

classic form of political activism

Conclusion

i

TABLE OF AUTHORITIES

CASES

Brandenberg v. Ohio,

395 US 444 (1968)

Coates v. Cincinnati,

402 US 611 (1971)

Connally v. General Construction Co.,

269 US 385 (1926)

Frisby v. Schultz,

487 US 474 (1988)

Gravned v. City of Rockford,

Ae FE icceitsiesinienivancinenees 10

Hanzo v. deParrie,

953 P2d 1130 (Or. Ct. App. 1998)

Lawson v. Murray,

DRE RF FEO AG OD iat scitksnuiso ascertain inienviaidianiiacens )

NAACP v. Claiborne Hardware,

Oe Fee ee BE i va acca vccicanpstocth dntatieipiabecatenesandeneme Y

New York Times v. Sullivan,

376 U.S. 254 (1964)

New York Times Co. v. US,

ree FO CN Oe Rivest kh Ce 5

Terminiello v. Chicago,

337 US 1 (1949)

US v. Twine,

853 F2d 676 (9th Cir. 1988)...........cccseeeree

CONSTITUTIONAL PROVISION

U.S. Constitution, First Amendment

RULES

Supreme Court Rule 37

usnddteicstiden 13

passim

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37 of the Rules of this Court, Paul

deParrie (“deParrie”) hereby submits this amicus curiae brief

in support of the Petition For Writ Of Certiorari (“Petition”)

filed by Petitioners American Coalition of Life Activists

(*ACLA”) et. al.’ DeParrie has a unique role in this case and

appeared as an amicus in this matter before the three-judge

panel, the ev banc panel of the Ninth Circuit, and before this

Court in the first Petition for Writ of Certiorari, Case No. 02-

$63. After the decision of the en banc panel (“Majority

Opinion”) this case was again brought before the Ninth

Circuit which deemed the only relevant issue before it to be

the punitive damages award. That panel did not address

deParric’s First Amendment issues.

DeParrie was editor-in-chief of Life Advocate magazine

for ten years because he felt that it provided the best forum

for his writer/journalism vocation and his public activism.

(Trial Tr. 2813-14) The magazine covered a wide range of

news and commentary on national and international issucs,

much of which was written by deParrie himself. (Trial Tr.

2813-14) Life Advocate magazine was destroyed by this

litigation. (deP. Rep. Br. p. 7)

Counsel for Petitioners and Respondents have consented to the

filing of this brief. Their written consent was filed with this Court

simultaneous with the filing of this brief. This bnef was not authored. in

whole or in part, by counsel for any party. King Lithographers, Inc. has

made a monetary contribution towards the printing of this brief.

DeParrie originally filed in the Ninth Circuit as a pro se

appellant-non-party-in-interest. After filing both an opening brief and a

reply brief. the three judge panel treated deParne as amicus curiae. Iis

briefs filed with the Ninth Circuit will be cited herein as “deP. Op. Br.”

and “deP. Rep. Br.” “App.” as used herein refers to the Appendix of the

Petition.

DeParrie has two distinct First Amendment interests in

this case: First, deParrie is a published author and journalist.

In fact, he was credentialed as a journalist by the District

Court in this very action so that he could cover the 4rial for

Life Advocate magazine (Lodging, p. | or “L 1).* One of his

news stories about the “wanted-style” posters was classified

as a “republication” of a truc threat by the District Court. (L

2-9)

Second, deParric is political activist in the pro-life field,

much of whose past activism was conducted under the

auspices of a defendant in this action, Advocates for Life

Ministrics (“ALM”), a_ federally tax-exempt nonprofit

organization that has also been destroyed by this litigation.

ALM was, in turn, associated with petitioner ACLA, an

unincorporated association of pro-life activist groups and

individuals. ACLA, as an activist organization, has also been

destroyed. DeParric has designed and distributed pro-life

posters both before and after the alleged “poster pattern”

theory was created for this case. Many of them are more

confrontational in nature than those at issue in this case (L

12-23) and, yet, the Oregon Court of Appeals has deemed

those other posters to be protected speech. Hanzo v.

deParrie, 953 P.2d 1130 (Or. Ct. App. 1998).

The District Court verdict and injunction entered in

1999 (“Order”) poses serious problems for deParrie in both

his individual capacity and as editor- in —chief of Life

‘ DeParrie has filed a request with this Court to accept a Lodging

containing 67 pages. The Lodging consists primarily of depictions of

posters and news articles which are repeatedly referred to in this brief,

Vhis same lodging was accepted by this Court in the first Petition for

Writ of Certtorari, Case No. 02-563. Lodging pages are designated by

“LL. Lodgings are ir 8 '2" x 11° format as reduction would render many

of them illegible

3

Advocate magazine. First, in contravention of basic due

process rights, deParrie was enjoined by name in the Order

even though he was not a party to the case and then denied

standing as an appellant in the Ninth Circuit. Like the

Petitioners, deParrie is therefore enjoined from publishing.

republishing or even possessing copies of the subject posters

and website content, or their undefined “equivalent,” and he

is also prohibited from publishing, republishing or merely

possessing “personally identifying information” about any of

the respondents. (App. pp. 281-85, 289-92). Second, the jury

imposed aggregate damages of $120 million dollars against

the defendants below, in part, because of an article that

deParrie wrote in Life Advocate about a poster. (deP. Rep.

Br. p. 7).

Thus, deParric could in the future be subjected to

contempt citations and even imprisonment under the Order,

along with massive damage claims, for basic First

Amendment activity that would never be questioned in any

other context. But for ‘deParrie’s viewpoint, his First

Amendment rights would be honored. The Ninth Circuit en

banc Majority Opinion imperils the personal and

professional life of anyone courageous enough to |) publish

articles or distribute protest literature condemning any of the

respondents, 2) for anything construed as “republication” of

the posters or their “equivalent”, or 3) for publishing

anything deemed to qualify as “personally identifying

information” about any of the respondents. |

For these compelling personal and professional reasons,

deParric now appears in support of the Petition for a Writ of

Certiorart. :

4

STATEMENT OF THE CASE

DeParrie hereby adopts and incorporates by reference

the Statement of the Case presented in the Petition for Writ

of Certiorari. Additional facts relevant to deParric’s interest

are discussed in the context of specific issues below.

REASONS FOR GRANTING THE PETITION

This Court has previously reviewed First Amendment

restrictions when “the question presented [was] of substantial

importance.” Frishy vy. Schultz, 487 US 474, 479 (1988).

The ominous threats to both free speech and freedom of the

press resulting from the Ninth Circuit cn bane Majority

Opinion in this case present questions equally important to

justify the writ of certiorari.

The actual effect of the harms which the Ninth Circuit

finds acceptable to legitimate First Amendment interests are

discussed below from the perspective of an activist/

journalist.

I.

The Ninth Circuit’s 6-5 affirmance of a plainly

unconstitutional verdict and injunction is a direct attack

on freedom of the press for amicus and all similarly

situated commentators and activists

As this Court explained in New York Times v. Sullivan,

376 U.S. 254, 269 (1964), freedom of expression upon

public questions is constitutionally safeguarded “to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.” As

such, “*Any system of prior restraints of expression comes

to this court bearing a heavy presumption against its

constitutional validity... The Government ‘thus carries a

heavy burden of showing justification for the imposition of

such a restraint."” Vew York Times Co, vy, US, 4043 US 714

714 (1971) (citations omitted) Hot the history and

language of the Fini Amendment support the view that th

press must be left free to publish news, whatever the source

without censorship, injunctions, of prior restrainta” /d at

717.

These principles were frontally attacked when the Ninth

Circuit en banc majority reversed the first three-judge panel

Even responsible coverage of an important and hotly debated

national political issue is no longer safc

For instance, after Michacl Griffin shot abortionist

David Gunn in 1993 and a debate arose over the mora

legitimacy of the ase of force to stop abortions

Advocate magazine provided 2 forwm for the bes

commentaries on heh sides of the insue. Even wher

magazine took an editorial posmiow some months Ia

deParric, as editor-

to get equal covcrawe jw i Ne Wallace wer yon

those opposed to th ¢ of ton (hey, On

debates were a si hy Ota

nationally-circulate# was)

The March “B99 ieee MT LAV Aly HAZ I

includes. besides thi# WY HHMI He piotel MA TeE ABE /

activitics in Washi Phb Mn Te Wil

anniversary, some !elIy Hie Hier Hey Ve The) PROMPT

letters to the editol) TYP BUETTT ee, THT eat, Ty)

“quotable quotes,” ‘4 He [hy Ppa) eR

1s HOH Appel Vt OVA OU wh) ial

of incredible that a

article to be a “ret

TeRRLEK LeLeA vi ’ tris ial MASI AL ALAL al

4 ' . : ;

None of this wi

fy

with a massive damage award and banned by injunction

under pain of contempt of court and criminal prosecution

under FACT

Ihe mwiagazine & Hews coveraue of the ACLA events

held on January 25, 1995S, the anniversary of AKoe vo Wade.

included a story about an ACLA picket held at Foundry

Methodist Church, where then-President Bill Clinton was

attending services, a protest at the offices of the Health and

Human Services against fetal experimentation, a candlelight

vigil conducted in front of an abortionist’s house, as well as

the controversy over the release of the “Deadly Dozen”

poster. (L 2-9) Sidebar storics mcluded mformation on the

annual March for Life. the mtroduction of the ACLA as a

group. an anti-abortion group from Ircland whose membcrs

es thaw etttnat ae <u ao ry Pr -

came to jom the activities m Washimegton. D.C_. and a simplc

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deemed a “republication” of the poster and, thus, 4 “true

threat,” (L 29) Under the injunetion, this news article was

deemed 4 “true threat’ when in the possession of any

defendant of those in “aetive concen with then (App. pp

144, 2N9-92, DOK 400) To comply with the Order, deParri

was forced to turn over to the distriet court even his personal

family archive copy of the March 1995 issue of Lif

lddvocate magazine. (deP, Rep, Br. p. 3)

The district court later ordered ALM to cease paying its

bills (rent. electric. cte.) and put all financial assets in the

\LM bank account and not remove them for any purpose

(deP. Rep. Br p. 7-8) As a result, ALM and Life Advocat

,

magazine ceased to function. and deParric lost his job

Mit HMA AAjH1 UH

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[Tlhe constitutional guarantees of free speech

and free press do not permit a State to forbid or

proseribe advocacy of the use of force or of law

violation except where such advocacy is directed

lo citing oF producing imminent lawless getion

arid is likely to incite Of produce such action

BKrandenbere \ Ohio, A898 US 444, 447 (1968)

Here the en bane Majority Qpinion evades a proper

application of that precedent by inventing a new category of

actionable speech: “threat” by remote temporal association

with past violence, following the speech of persons offer

than Petitioners. The sigmificance of Petitioners’ explicit

advocacy for /awful action to bring abortionists to justice

, tt. . wie Asoec > £ nx ~ ~ ¢h-~+¢ h-+

was clicctsrvely disregarded m favor of a theory tha .

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