# Amicus Curiae Brief — American Coalition of Life Activists v. Planned Parenthood of the Columbia/Willamette, Inc. (No. 05-1083) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0865%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 ## Text 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 £ nx ~ ~ ¢h-~+¢ h-+ was clicctsrvely disregarded m favor of a theory tha . wPrevea bel ™ VERVE RL AL PAI ETar AlALeh Wel Wh Poy --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0865%3A07. Public record. Not legal advice.