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

6

In Scheidler v. NOW, 537 U.S. 393 (2003), this Court

rejected the claim that anti-abortion activists should be held

liable under RICO for massive damages and be subject to a

nationwide injunction on the theory that their protest activity

was “extortion” under the Hobbs Act. The Court concluded:

“Because all of the predicate acts supporting the jury’s find-

ing of a RICO violation must be reversed, the judgment that

etitioners violated RICO must also be reversed. Without

an underlying RICO violation, the injunction issued by the

District Court must necessarily be vacated.” /d. at 411.

On remand, the Court of Appeals for the Seventh Circuit

found a way to preserve the result the Court had clearly

reversed, and remanded to the district court to determine

whether the injunction should be continued because of a

novel view that the words “by robbery and extortion” in the

Hobbs Act do not really refer to robbery or extortion, but to

free-floating threats of violence. 91 Fed. Appx. 510. Once

again, this Court granted certiorari and conducted full review

of this issue, resolving it unanimously in favor of the peti-

tioners. Scheidler v. NOW, 126 S.Ct. 1264 (Feb. 28, 2006).

In this case the lower court did not ignore the clear mean-

ing ot a mandate of this Court, but it refused to consider a

motion to reconsider the judgment below in the light of sev-

eral highly relevant, supervening decisions of this Court. Pet.

9-10, Pet.App.3, 34 (rejecting consideration of supervening

decisions of this Court as outside of the mandate from the en

bane court and thus “not open for review’). Curiously, the

panel even refused to consider a relevant supervening deci-

sion of the Ninth Circuit, United States v. Cassel, 408 F.3d

622 (9th Cir. 2005) (applying Virginia v. Black to threat stat-

ute). Pet. 14-16.

The panel misread /n re Sanford Fork & Tool Co., 160

U.S. 247, 255 (1895), Pet.App.33, to preclude review of this

Court's supervening decisions in Scheidler I/ and in Black.

The predicates for the judgment of the en banc court are

irreconcilable with the teaching of this Court on RICO and

7

the Hobbs Act in the Scheidler decisions, with the teaching

of this Court on the “constitutionally proscribable sense” of

“intimidation” in Virginia v. Black, 538 U.S. 343 (2003), and

with the teaching of this Court on Article III standing in cases

like Friends of the Earth vy. Laidlaw Environmental Services,

528 U.S. 167 (2000). We address the impact of the Scheidler

decisions on this case in Part I, the impact of Virginia vy.

Black on this case in Part UH, and the impact of Friends of the

Earth and other standing decisions on this case in Part III.

REASONS FOR GRANTING THE PETITION

I. THIS COURT’S DECISIONS IN SCHEIDLER V.

NOW REQUIRE DISMISSAL OF THE RICO

CLAIM IN THIS CASE.

A. The statements and expressive acts of petitioners. Peti-

tioners published three communications at issue in this case.

1. In 1995, on the twenty-second anniversary of this Court's

decision in Roe v. Wade, ACLA held a news conference at

which they introduced a poster that reads: “Guilty of Crimes

Against Humanity. 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.’ The poster then listed the names and addresses or

phone numbers of twelve doctors who provide abortion ser-

vices. And the poster offered a reward of $5,000 “for infor-

mation leading to arrest, conviction, and revocation of license

to practice medicine.” L.1 [L. refers to “Lodging,” documents

attached at the end of the Pet. App. ]

2. Later that summer, at a rally outside the old federal

courthouse in St. Louis where Dred Scott went to trial in 1850

to gain his freedom, Pet.App.136, ACLA introduced a poster

describing respondent Robert Crist as “guilty of crimes against

humanity” and offering $500 “to any ACLA organization that

successfully persuades Crist to turn from his child killing”

through protected activities “within ACLA guidelines,” such

as writing, picketing, and leafleting. The poster also urged

a

8

readers to “ask Crist to turn from killing and injuring women

and children to helping and healing those in need.” L.2. Other

posters of a similar nature urged readers to “please call, write

and pray” for an abortion doctor’s “repentance, and ask him

to stop killing and injuring women and children, and rather

use his abilities to help and heal those in need.” L.52,53. Two

posters identified an abortion clinic in Granite City, Illinois,

and one in St. Louis, Missouri—neither of which is a party to

this litigation—and urged readers to “come to this place to

pray, picket and offer good alternatives to legalized child

killing.” L.54,55.

3. In 1996, ACLA publicly advocated compiling informa-

tion about abortion doctors for future Nuremberg-type trials,

in the event that America repudiates abortion on demand.

L.24. A nonparty to this litigation, Neil Horsley, launched

a website callec “Nuremberg Files.” L.24-42. Pet.App.77.

ACLA insisted that its name be withdrawn from the website

and has had nothing to do with it ever since. Tr. 1362-65,

2236-60,2282-87,2306,23 14.

The en banc opinion made much of the broad context of

these statements and acts. We explore this theme in greater

detail in Part II below. For now, it is enough to note the

immediate context or setting of all of these events: open public

rallies, where the presumption is that speech of this sort is the

classic instance of political speech at the very heart of First

Amendment protection. Pet.App. 149-50. Hence, in his dissent

from the en banc opinion, Judge Kozinski characterized the

petitioners’ statements as “highly charged political rhetoric

lying at the core of the First Amendment.” Pet.App.136. See,

e.2., New York Times v. Sullivan, 376 U.S, 254, 270 (1964)

(“debate on public issues should be uninhibited, robust, and

wide-open”); and see National Organization for Women v.

Scheidler, 510 U.S. 249, 263 (1994) (Souter, J., concurring)

(reversal of summary judgment did not bar First Amendment

challenges to particular applications of RICO to protected

protest activity).

9

B. The Scheidler litigation. As the Scheidler case pro-

gressed, the Court did not address the constitutional issue, but

focused on statutory interpretation of the Hobbs Act and the

RICO Act. Many of the amici participated in the Scheidler

litigation, argued and decided in October Term 2002 and in

the current October Term. On both occasions we noted the

lack of any statutory basis for applying RICO to social activ-

ists, and offered the Court numerous examples from the his-

tory of the Nation that makes the application of massive

penalties and nationwide permanent injunctions on speech

about matters of public concern utterly inconsistent with the

struggle for freedom in this country. See Scheidler v. NOW,

Nos. O1-1118 arid 01-1119, Brief Amicus Curiae of Seamless

Garment Network et al., 2002 WL 1594370, and Scheidler vy.

NOW, Nos, 04-1244 and 04-1352, Brief Amicus Curiae of

Consistent Life et al., 2005 WL 2148531. See the brief dis-

cussion of historical examples of this sort in Judge Kozinski’s

opinion for the panel.

As in Scheidier, the complaint in this case alleged that the

speeches and expressive actions of the petitioners constituted

Hobbs Act “extortion” in violation of the Racketeer Influ-

enced and-Corrupt Organizations Act, 18 U.S.C. §§ 1961, ef

seq. The district court rejected petitioners’ motion for sum-

mary judgment and allowed this contention to proceed to trial,

despite his judgment that the three communications summa-

rized above did not “contain any expressly or apparently

threatening language,” Pet.App.307-08, a point on which we

comment in Part II below.

The jury was instructed on the Hobbs Act predicates as the

only basis for finding liability under RICO. Pet.App.422-28.

Liability was imposed upon the petitioners under this RICO

theory, and damages were awarded in the amount of $11

million in compensatory damages, trebled under RICO, and

$109 million in punitive damages under FACE, Pet.App.81

n.4. The en banc court sustained the judgment obtained under

RICO as consistent with the First Amendment, Pet.App.90-

10

114,119-23, but vacated the award of punitive damages and

remanded for reconsideration under BMW of North America,

Inc. v. Gore, 517 U.S. 559 (1996). On remand the district

court approved the jury awards of punitive damages in full,

and denied petitioners’ motions for further briefing on super-

vening precedents of this Court. Pet.App.64-65. The court of

appeals vacated the judgment on punitive damages, which in

its view “exceed constitutional limits”; and it refused to con-

sider any other issue, including the relevance of supervening

opinions of this Court, as “not open for review.” Pet. App. 34.

In 2003 this Court noted in Scheidler IT:

There is no dispute . . . that petitioners [in Scheidler]

interfered with, disrupted, and in some instances com-

pletely deprived respondents of their ability to exercise

their property rights. ... But even when their acts of in-

terference and disruption achieved their ultimate goal of

“shutting down” a clinic that performed abortions, such

acts did not constitute extortion because petitioners did

not “obtain” respondents’ property. Petitioners may have

deprived or sought to deprive respondents of their al-

leged property right of exclusive control of their busi-

ness assets, but they did not acquire any such property.

Petitioners neither pursued nor received “something of

value from” respondents that they could exercise, trans-

fer, or sell. Sehettier v. NOW, 537 U.S. 393, 403-04,

(2003) citing Urmted States v. Nardello, 393 U.S. 286,

290 (1969).

In some respects ¢he words and deeds of the protestors in

Scheidler had much more direct consequences upon the re-

spondents in that case than did the words and deeds of the

petitioners in this case upon these respondents. But whatever

one makes of the words and expressive acts of the petitioners

in the instant case, they emphatically did not pursue or re-

ceive “something of value” from the respondent doctors or

clinics. Hence, under Scheidler II they cannot be made civilly

liable for damages for violating the Hobbs Act as a predicate

for a RICO violation.

1]

This view of the law was reinforced by the unanimous

decision in Scheidler Ill, 126 S.Ct. 1264 (Feb. 28, 2006),

which concluded:

Congress did not intend to create a freestanding physical

violence offense in the Hobbs Act. It did intend to forbid

acts or threats of physical violence in furtherance of a

plan or purpose to engage in what the statute refers to

as robbery or extortion (and related attempts or con-

spiracies). Jd. at 1274.

Scheidler Il and Scheidler [11 unambiguously establish that

the liability theory underlying the RICO verdict in this case—

and the Hobbs Act instructions given to the jury—are legally

invalid, even if the circuit court decisions on this issue at the

time of trial uniformly supported both the theory and the in-

structions. Inexplicably, however, the Ninth Circuit panel on

remand refused to apply this Court’s unambiguous, superven-

ing precedents to upset the flawed liability judgment in this

case. Pet.App.34. This refusal by the Ninth Circuit panel to

apply this Court’s decision has exactly the same effect—and

is no less tolerable—than the Seventh Circuit’s actions fol-

lowing remand in Scheidler 11. Accordingly, this Court should

grant, vacate and remand with instructions to dismiss all

RICO claims on the binding authority of Scheidler I] and

Scheidler If].

Hl. THIS COURT’S DECISION IN VIRGINIA V.

BLACK REQUIRES DISMISSAL OF THE FACE

CLAIM IN THIS CASE.

A. The relevance and limits of contextualization. The court

of appeals allowed the prohibition of intentional intimidation

in the Freedom of Access to Clinic Entrances Act (FACE), 18

U.S.C. § 248, to be construed in a manner that allows virtu-

ally unrestricted use of the “context” of a threat. Pet.App.72-

74,90-92,103, 105,109,120. When combined with the tlt of

the court of appeals away from a speaker-based understand-

ing of a “true threat” toward a hearer-based understanding of

this phenomenon, this development dangerously distorts the

12

=

fundamental role of mens rea in criminal law and of causation

in civil liability, and invites jurors to impute guilt or liability

to defendants through hidden factors that are constitutionally

impermissible.

It is a truism of historical method that the meaning of a fext

can be illuminated by understanding its context. But the broad

latitude given by the court of appeals to “contextualization”

stretches the utility of this tool to the breaking point, allowing

freedom to find the text itself in the surrounding context, even

though a speaker has not uttered that text. In this case, this

approach means in practical reality that jurors and judges may

attribute to petitioners responsibility for foul deeds they never

committed (such as the killing of three doctors who provided

abortions in the 1990s). As Judge Rymer implicitly acknowl-

edged in her opinion for the en-banc panel, the court below

allowed “classic protected speech” to be converted into non-

protected speech “by a context of violence that includes the

independent action of others.” Pet.App.91 (emphasis added).

Interpretation always occurs in the present moment when a

reader construes a text. Memory plays a role, but even the

process of remembering is a present activity. In the appellate

process, we assemble the relevant constitutional standards and

statutory provisions and records of proceedings, and pore

over them to answer the questions they present. In this proc-

ess, as in all acts of understanding, we the readers are the

ones engaged in the act of understanding whenever we read a

text. But that does not mean that we get to make up the text

according to what we recall about the times or the context

within which it was uttered, or that we may freely substitute

cisigesis for exegesis (reading preconceived notions into a

text rather than discerning the meaning that lies within a text).

Lawyers and judges make contextual assessments all the

time. But too much contextual analysis could bog down the

legal process interminably. For example, what is the current

context in which this case comes before the Court? Some

might identify it as a moment in which the country is engaged

13

in shooting wars on two fronts, and worry about the potential

impact of this case on anti-war protest. Others might situate

this case within the context of the post-Roe v. Wade era that

formed a lively part of the recent confirmation hearings of the

Chief Justice and of Justice Alito. Still others might describe

the context as a moment in a more general “culture war.” At

the very least, it may be said that tempers rise when the issue

is discussed, and that people become understandably agitated

when abortion protest is linked to the killing of doctors.

In this heated atmosphere petitioners’ words and deeds

understandably generated considerable popular outrage. But

speech in our republic must remain free not only for popular

speakers, but also for the unpopular. As Judge Berzon noted

in her dissent from the en banc opinion:

If we are not willing to provide stringent First Amend-

ment protection and a fair trial to those with whom we as

a society disagree as well as those with whom we

agree—as the Supreme Court did when it struck down

the convictions of members of the Ku Klux Klan for

their racist violence-condoning speech in Brandenberg—

the First Amendment will become a dead letter. More-

over, the next protest group—which may well be a new

civil rights movement or another group eventually vindi-

cated by acceptance of their goals by society at large—

will (unless we cease fulfilling our obligation as judges

to be evenhanded)* be censored according to the rules

applied to the last.” Pet.App.195.

See, e.g., James Davidson Hunter, Culture Wars: The Struggle to De-

fine America 4, 13, 19, 44, 49-50, 90-92, 162, 170, 218, 226, 253, 271,

285, 297, 305, 322 (1991). If the source for Hunter’s catchy title is the

Kulturkampf of nineteenth-century Germany, then the translation is inex-

act. Better to say that we are in conflict over deep cultural values. See,

e.z., Jimmy Carter, Our Endangered Values: America’s Moral Crisis 3,

33, 57. 71-76 (2005); and see Robert Wuthnow, The Struggle for America’s

Soul: Evangelicals, Liberals, and Secularism (1989),

' See, e.g., Hill vy. Colorado, 530 U.S. 703, 741-42 (2000) (Scalia, J.,

dissenting); Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 785

(Scalia, concurring in judgment tn part and dissenting in part) (danger of

14

See Brandenburg v. Ohio, 395 U.S. 444 (1969). All of the

reviewing judges who have assessed this record are in

agreement that under Brandenburg this case does not present

any incitement to imminent violence that was likely to have

flowed from the statements of the petitioners.

This Court roundly repudiated guilt by association in

NAACP. vy. Claiborne Hardware, 458 U.S. 886, 919 n.56

(1982) (an individual may not be held liable for damages

merely by reason of his association with others who com-

mitted unlawful acts, but only for unlawful conduct that he

himself authorized or incited). As Justice Stevens there ex-

plained: “the Court has consistently disapproved governmen-

tal action imposing criminal sanctions or denying rights and

privileges solely because of a citizen’s association with an

unpopular organization.” /d. at 919, citing Healy v. James,

408 U.S. 169, 185-86 (1972).

The en banc opinion mentioned Claiborne Hardware in

passing, distinguishing its authority on the ground that it did

not involve a threats statute such as FACE, Pet.App.93.

Judges Reinhardt, Kozinski, and Berzon, discussed this prece-

dent extensively, finding it controlling in the instant case.

Pet.App.128, 130-31, 135, 137-46, 174, 209-10. See also G.

Robert Blakey and Brian J. Murray, “Threats, Free Speech,

and the Jurisprudence of the Federal Criminal Law,” 20027

B.Y.U. L. Rev. 829, 874-91.

The en banc court purported to guard against guilt by asso-

ciation, Pet.App.113, but created a far more dangerous legal

tool, guilt by contextualization, Judge Rymer acknowledged

that the communications at issue in this case “do not contain a

threat of force on their face.” Pet.App.73. But she found it

constitutionally permissible to supply the deliberate intent to

intimidate “by force or thereat of force’ specified by Congress

in FACE, 18 U.S.C § 248(a)(1), Pet.App.404, by looking to the

“ad hoc nullification machine” to push aside application of doctrines of

constitutional law to protest against abortion).

15

-

“context” of the petitioners’ communications (sometimes

called the “historical facts,” Pet.App.90, or the “entire factual

context,” Pet.App.105, or the “whole factual context,” Pet.

App.110). In particular, the court reasoned, it was-proper for

the jury to view the petitioners’ communications in the “con-

text” of the killing of three doctors who performed abortions in

the 1990s, see note 2 above, even though there can be no legal

relation between these deplorable events and petitioners’ com-

munications, which were published after the acts of violence

had already occurred and which were followed by no violence

against anyone, including respondents.

Any attempt to contextualize is fraught with difficulty. One

person remembers what another forgets. One person cherishes

an aspect of the past more than another. One person perceives

a context that is unapparent or hidden to another. Hence, the

danger of opening wide the gates of “contextualization” is

that it invites jurors to bring into their deliberations all sorts.

of things that might be legally irrelevant or constitutionally

impermissible.

In short, it is an assault upon the First Amendment to allow

an alleged “threat” in speech that is not only facially non-

threatening, but positively advocates—like the posters here—

non-violent political action. And it is an assault upon core

values in federal criminal jurisprudence to allow the process

of contextualization to make up the very fext or the core ele-

ment of mens rea in a criminal case or liability in a civil case.

Guilt or liability by contextualization wrongly assigns liabil-

ity to A (such as petitioners) for passionate statements made

by B and foul deeds committed by C (nonparties unrelated to

A and not under the control of A), and then bankrupts and

muzzles A for expressing views on a controversial matter for

the rest of his life. See, e.g., Blakey and Murray, “Threats,

Free Speech, and the Jurisprudence of the Federal Criminal

Law,” 2002 B.Y.U. L. Rev. 829, 1010-51.

The en banc court also ruled that the format of the com-

munications may also determine whether it is protected speech

16

or a “true threat.” In particular, the court suggested that “[t]he

true threats analysis turns on the poster pattern... . it is the

use of the ‘wanted-type format’ in the context of the poster

pattern—poster followed by murder—that constitutes the

threat itself.” Pet.App.120. It offends common sense, let

alone the First Amendment, to hold that the format of a

communication could turn protected speech on a poster into a

“true threat,” but that the same words spoken on a radio

broadcast would be protected. See United States v. Kelner,

534 F.2d 1020 (2d Cir. 1976) (First Amendment protects

statement over radio that trained people are now on a mission

to make sure that Arafat is assassinated). This makes about as

much sense as saying that eye color or weight may by itself

determine eligibility for food stamps or a driver's license.

B. Virginia v. Black. We now turn directly to the issue of

“true threats,” which we readily acknowledge to be unpro-

tected by the First Amendment. It is easy to understand that

the respondent doctors would have felt threatened by the

words and expressive acts of the petitioners. But it is quite

another thing for the courts to accept this subjective percep-

tion of threat as the only legitimate means of determining

when a threat is constitutionally “true.” As Judge Kozinski

correctly observed, “the constitutional question turns on the

source of their fear.” Pet.App.211. Judge Kozinski concluded:

“Unless ACLA threatened that its members would themselves

assault the doctors, the First Amendment protects its speech.”

Pet.App.210; and see the extensive discussion of “true threats”

by Judge Berzon. Pet.App.154-75.

Judge Rymer concluded that the posters distributed by

petitioners constituted a “true threat because, like . . . burning

crosses, they connote something they do not literally say, but

both the actor and the recipient get the message.” Pet. App.

121. When Judge Rymer wrote in this way, she had_only the

power of analogical reasoning from prior precedents of this

Court, such as Capital Square Review and Advisory Bd. v.

17

Pinnette, 515 U.S. 753 (1995) (KKK may display unadorned

cross in public square).

Now, however the task of discerning the law must take in

to account this Court’s analysis of “intimidation” in Virginia

v. Black, 538 U.S. 343 (2003), that specifically addressed a

Virginia statute that criminalizes the burning of a cross with

intent to intimidate. In Black, this Court sustained the statute

on its face, but held that the statute could not make the act of

burning a cross prima facie evidence of the crime, and re-

quired proof that a speaker means to communicate a serious

expression of intent either to commit an act of unlawful vio-

lence to a particular individual or group of individuals, or to

place a victim in fear of bodily harm or death.

In United States v. Cassel, 408 F.3d 622 (9th Cir. 2005),

the Ninth Circuit expressly ruled that, in light of Virginia

v. Black, “speech may be deemed unprotected by the First

Amendment as a true threat only upon proof that the speaker

subjectively intended the speech as a threat.” 408 F. 3d at 633

(emphasis added).

It is utterly impossible to reconcile this specific intent stan-

dard with the jury instructions in this case, which expressly

reject a specific intent standard. Pet.App.416. Yet on appeal

after remand from the en banc court, the panel refused to

consider either this Court’s explicit teaching in Black on the

constitutional prescription that must surround a threats stat-

ute, or the application of Black to the facts in Cassel.

Instead, the panel decided that it had no obligation to fol-

low the law of the land announced by this Court unless ex-

pressly ordered to do so. Pet.App.34. This view flies in the

face of this Court's teaching that the rule of mandate governs

the relationship of an appellate court to the trial court, but

does not relieve a court of appeals from the duty of correcting

its ruling in light of a subsequent relevant ruling by this

Court. United States v. Wells, 519 U.S. 482, 488 n.4 (1997);

see also Fogel v.Chestnutt, 668 F. 2d 100, 109 (2d Cir. 1981).

18

It may be understandable that appellate judges are reluctant

to wipe away the products of significant investments of their

time, such as the prior en banc opinions. But that concern

rings hollow here, for the Ninth Circuit itself acknowledged

in Cassel that Virginia v. Black supersedes the en banc major-

ity’s “true threats” analysis. Misplaced judicial pride of author-

ship cannot and should not be permitted to override the need

to ensure that justice is done in individual cases, including the

obligation to apply the law as declared by this Court. Where,

as here, a liability judgment and injunction carry such obvi-

ous negative implications for cherished (but fragile) First

Amendment rights, there is even less reason to retain such a

superseded decision on the books,

Here again, this Court should grant the petition, vacate, and

remand with instructions to the panel to dismiss the applica-

tion of FACE to the petitioners under Virginia v. Black.

Ill, RESPONDENTS’ LACK OF STANDING RE-

QUIRES DISMISSAL OF THE CLINICS FROM

THIS CASE,

Respondents are two abortion clinics in Portland, Oregon:

Planned Parenthood of the Columbia/Willamette, Inc. and

Portland Feminist Women’s Health Center. Neither of these

clinics was mentioned in any of the statements issued by

petitioners. L.1-2, 8-42; Pet.App.329. And none of the four

physicians-respondents—Robert Crist, M.D.; Warren M. Hern,

M.D.; Elizabeth Newhall, M.D.; and James Newhall, M.D.—

has any financial relationship (such as employment) with

either clinic. Tr.1182, 1994.”

For two reasons there is serious doubt as to the jurisdiction

of the federal courts over this case. First, the uncontested

facts about the respondents stated above suggest that the

* In fact, amici Catholic Worker and Greenpeace have a more solid ba

sis for alleging actual, concrete injury to be adjudicated in a federal court

than do respondent clinics. See Enc Lichtblaum, “F.B.1. Watched Activist

Groups, New Files Show.” New York Times, Dec. 20, 2005

19

clinics have not suffered any injury in fact. It is well settled

that a plaintiff must allege a grievance that is not abstract,

conjectural, or hypothetical, but one that is actual, real, and

concrete. See, v.y., Friends of the Earth v. Laidlaw Environ-

mental Services, 475 U.S. 167, 180 (2000); Lujan y.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1991); Valley

Forge Christian College v. Americans United for Separation

of Church and State, 454 U.S. 464, 472 (1982); Laurence

Tribe, American Constitutional Law 111-29 (2d ed. 1988). As

for the timing of the alleged injury, the harm need not have

occurred already; it is sufficient that it may be imminent. But,

as Judge Kozinski correctly observed in his dissent: “Under

Brandenburg, advocacy can be made illegal if it amounts to

incitement. But incitement requires an immediacy of action

that simply does not exist here, which is doubtless why plain-

tiffs did not premise their claims on an incitement theory.”

Pet.App.135-36; see also at 140 (posters “resulted in no

immediate harm to anyone’’).

Second, the core of the theory of the en banc court—

contextualization that enables jurors to impose liability upon

A by virtue of the words or deeds of B—flies in the face of

the second standing requirement, that a litigant show that the

actions of the defendants caused the alleged injury. Warth vy.

Seldin, 422 U.S. 490, 505 (1975) (plaintiffs must establish

that “in fact, the asserted injury was the consequence of the

defendants’ actions”); Friends of the Earth, supra, 528 U.S.

at 180 (same); Lujan, supra, 504 U.S. at 560-61; Tribe.

American Constitutional Law, supra, 129-34.

The panel dismissed the standing claim without analyzing

its merits. It maintained that the issue was “finally settled.”

Pet.App.32. That view is incortect factually. The standing

issue was raised before the district court, which acknow]

edged “serious questions concerning each Plaintiff's standing

lo assert the causes of action in the Complaint,” but “de-

clinejd} ¢e@ vesolve this issue at this juncture.” Pet.App.362.

20

and see 386-88. The issue was reasserted on remand, but the

panel declined to rule on the issue. Pet.App.34.

Article If standing may not be waived: “Standing repre-

sents a jurisdictional requirement which remains open to re-

view at all stages of the litigation.” National Organization for

Women v. Scheidler, 510 U.S. 249, 255 (1994); Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534 (1986). The panel

purported to avoid the standing issue, but the overlooking of a

glaring jurisdictional problem is but another example of how

we are left in this case with a result in search of a rationale.

In sum, the panel turned a blind eye to the teaching of this

Court on the Hobbs Act in Scheicler, the constitutional limits

for a true threat as clarified in Black, and the classic require-

ment for Article II] standing that a plaintiff must have suf-

fered actual, concrete injury caused by the defendant. For

these reasons, the court of appeals must be reversed.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

EDWARD MCGLYNN GAFFNEY, JR. *

VALPARAISO UNIVERSITY

SCHOOL OF LAW

656 S. Greenwich Street

Valparaiso, IN 45383

(219) 465-7860

JOHN W. WHITEHEAD

THE RUTHERFORD INSTITUTE

P.O. Box 7482

Charlottesville, VA 22906

* Counsel of Record (434) 978-3888

In THE

Supreme Court of the United States

AMERICAN COALITION OF LiFE ACTIVISTS, ET AL.,

Petitioners,

V.

PLANNED PARENTHOOD OF THE CoLUMBIA/WILLAMETTE, INC.,

ET AL.,

Respondents.

eat

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

VICTORIA KRAEGER AND EDWARD HYATT

SUPPORTING PETITIONERS

BERTRAM P. Go tz, Jr.

Counsel of Record

478 Notch Road, Apt. 1C

Clifton, NF 07013

(973) Sg0-0146

Attorney for Amici Curiae

Victoria Kraeger and Edward Hyatt

TABLE OF CONTENTS

‘Table of Authorities

Interests of Amici Curiae

Summary of Argument

Argument

BECAUSE OF THE LONG-ARM JURISDICTION EXERCISED IN

CASES SUCH AS THIS, THE NINTH CIRCUIT TRUE-THREAT

STANDARD WILL BE APPLIED TO PERSONS EXERCISING

THEIR FIRST AMENDMENT RIGHTS ACROSS THE NATION.

YET THAT STANDARD CONFLICTS WITH OTHER CIRCUITS

AND WITH PRECEDENTS OF THIS COURT, FOR EVEN WHEN

A SPEAKER CONTROLS OR ACTS IN CONCERT WITH NO ONE

ELSE, HE CAN BE FOUND GUILTY OF ISSUING A “THREAT”

MERELY ON HOW HIS SPEECH MIGHT BE ACTED UPON

BY SOMEONE ELSE—EVEN SOMEONE UNKNOWN TO THE

SPEAKER. THE BURDEN ON SPEECH IS INTOLERABLE. THIS

COURT SHOULD GRANT CERTIORARI AND REVERSE.

Conclusion

il

TABLE OF AUTTIORITIES

' CASEs:

Bigelow v. Virginia, 421 U.S. 809 (1975)

City of Chicago v. Morales, 527 U.S. 41 (1999)

Dombrowski v. Pfister, 380 U.S. 479 (1965)

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)

NAACP v. Claiborne Hardware Company,

458 U.S. 886 (1982)

New York ex rel. Spitzer v. Operation Rescue National,

273 F. 3d 184 (2d Cir. 2001)

Planned Parenthood of the Columbia/Willamette Inc. v.

American Coalition of Life Activists,

945 F. Supp. 1355 (D.Or. 1996)

Planned Parenthood of the Columbia/Willamette Inc.

American Coalition of Life Activists,

290 F. 3d 1058 (oth Cir. 2002)

Planned Parenthood of the Columbia/Willamette Inc.

American Coalition of Life Activists,

422 F. 3d at 958

RAV. v. City of St. Paul, 505 U.S. 377 (1992)

United States v. Kelner,

534 F. 2d 1020 (2d Cir. 1976)

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

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

STATUTORY PROVISIONS:

FA) BE See eben

111

TABLE OF AUTHORITIES-—Continued

RuLE PRovIsIOoNs:

Fed. R. Civ. P. 12(b)(2)

Sup. Cr. R. ro(a)

INTERESTS OF AMICI CURIAEF*

Victoria Kraeger

Victoria Kraeger of Port Leyden, New York and her hus-

band have been involved in pro-life activism since the early

1970s, working at fair booths, passing out literature in front

of abortion mills, picketing and debating. Mrs. Kraeger was

part of Operation Rescue, passively blocking the doors of

abortion mills until the Freedom of Access to Clinic En-

trances (““FACE”’) Act forced her and her fellow pro-lifers

to stop this peaceful way of saving babies.

Mrs. Kraeger and her pro-life companions were using the

same tactics as the defendants-petitioners American Coali-

tion of Life Activists (“ACLA’), they were letting people

know which doctors were abortionists. She made posters

and flyers naming the abortionists and asked for prayers for

them. She sees nothing wrong with lettmg the public know

what their doctor is doing, for itis no different than publicly

identifying doctors who are heart surgeons or pediatricians

—or doctors who do not perform abortions. As a woman,

she should have a right to know if a doctor she is about to

choose to deliver her baby favors killing babies before birth.

She has provided just such information to women who have

thanked her for letting them know.

Mrs. Kraeger observes that we live in a society that sells

maps to the homes of famous people, publishes internet lists

of sex offenders and identifies CEOs of major corporations

that are not earth-friendly. She believes, therefore, that the

Court of Appeals for the Ninth Circuit unfairly singled out

ACLA for punishment for something that other groups of

Americans do.

Counsel tor all parties have consented to the filing of this amicus briet. Uheir

consent statements are on file with the Clerk of the Court. No counsel tor

a party authored this brief in whole or in part. A monetary contribution to

the preparation of this brief was made by Keep The Faith of Ramsey, New

Jersey.

If the opportunity arose, Mrs. Kraeger would consider

naming abortion providers not only in her own area, but

in one or more of the Ninth Circuit jurisdictions, but she

is frankly hesitant and fearful of doing so considering the

potentual reach of the Ninth Circuit holding. In her words:

When I heard about the Ninth Circuit ruling against

ACLA, I burned my lists because I was fearful that I

could be implicated also. lam shocked that the right to

know and our right to free speech is so totally brought

to a halt. I still picket with my family and friends at

abortion facilities, but we are always worried about

the content of our speech and if someone is going to

misinterpret what we say.

If this case against ACLA remains as it is, I’m con-

cerned that similar cases will be made against other

Pro-Lifers and soon, like the babies killed by abortion,

we will have no voice at all.

Edward Hyatt

Edward Hyatt of Pendleton, South Carolina had never

thought seriously about opposing abortion until the late

1980s, when Operation Rescue began. He had heard re-

marks about “hard cases,” and he had thought that abortion

was probably the best way out of a hard situation. Now, how-

ever, on programs hosted by Dr. James Dobson and Mar-

lin Maddoux that featured Randall Terry and other pro-life

spokesmen, he was hearing the other side, and he knew that

abortion for any reason was a sin against God. It was mur-

der.

Mr. Hyatt’s first pro-life involvement was attending a big

right-to-life rally in Washington, D.C. in April rg90. Then,

in January 1991, he attended a “Jericho March” at the lo-

cal abortion clinic, met key pro-life activists, and has since

spent many hours protesting in front of abortion clinics

and in abortionists’ neighborhoods, giving out literature,

carrying signs, showing graphic pictures of aborted babies,

and talking to anyone involved in any way with having an

abortion: the boyfriend, the mother, the grandmother. He

has attempted to block clinic access to prevent women from

making such an awful mistake and so has been arrested. He

has been arrested too for showing the graphic pictures sim-

ply because, by showing what abortion truly is, they were

deemed by some as “offensive.”

Mr. Hyatt would consider identifying abortionists by

name and picture in states encompassed by the Ninth Cir-

cuit, but he is hesitant and fearful of being prosecuted and

then being held liable by the same court that held the

defendants-petitioners liable.

SUMMARY OF ARGUMENT

As in this case, in which six of the defendants were from

outside the Ninth Circuit but were subjected to its long-

arm jurisdiction, future cases of this kind are likely to have

the true-threat standard enunciated by the Ninth Circuit

here applied to persons in other circuits. The above-named

amici curiae therefore come before this Court representing

not only themselves, but countless others across the nation

who now are tearful of exercising their First Amendment

right of free speech because of that standard.

This Court has spoken of the transcendent value to so-

ciety of constitutionally-protected expression, and it conse-

quently has specified that one may be found guilty of in-

citement only if there is a proved, proximately-caused nexus

between the speaker’s statement and any violent act that

may follow and of threatening only if the speaker means to

communicate a serious expression of an intent to commit

an act of unlawful violence. The Ninth Circuit, by con-

trast, now has held, in a strange amalgam of incitement law

and threat law, that one may be found guilty of issuing a

“threat” by dint merely of how his or her speech might be

acted upon by some other person—even someone wholly

4

unknown to the sj « :r. That standard is distinctly at odds

with, in particular, the true-threat standard of the Second

Circuit, where the amicus Victoria Kraeger lives, for in that

circuit only unequivocal, unconditional and specific expres-

sions of intention immediately to inflict injury may be pun-

ished—threats which are so unambiguous and have such

immediacy that they convincingly express an intention of

being carried out. This circuit split combined with having

the Ninth Circuit standard applied to and thereby chill the

free speech of persons across the country demands that this

Court grant certiorari and then reverse.

ARGUMENT

Because of the long-arm jurisdiction exercised in

cases such as this, the Ninth Circuit true-threat

standard will be applied to persons exercising their

First Amendment rights across the nation. Yet

that standard conflicts with other circuits and with

precedents of this Court, for even when a speaker

controls or acts in concert with no one else, he

can be found guilty of issuing a “threat” merely

on how his speech might be acted upon by some-

one else —even someone unknown to the speaker.

The burden on speech is intolerable. This Court

should grant certiorari and reverse.

This Court should grant certiorari because of the adverse

impact the Ninth Circuit decision has on freedom of speech

_ not only in that circuit, but across the nation. The First

Amendment doctrine enunciated by the Ninth Circuit here

is most bizarre. Henceforth, every time one contemplates

speaking out on a matter of public importance, he or she

must keep an eve to the sky and an ear to the ground,

looking not only to the content and propriety of one’s own

statements and behavior, but to the propriety of what other,

wholly unrelated persons have done in the past and, what

is more, may do in the future on hearing what one is now

about to say. As one of the dissenting Ninth Circuit judges

wrote, :

The difference between a true threat and protected

expression is this: A true threat warns of violence or

other harm that the speaker controls. . . . [S]tatements

that are intimidating, even coercive, are protected by

the First Amendment, so long as the speaker does

not threaten that he, or someone acting in concert

with him, will resort to violence if the warning is not

heeded. [Planned Parenthood of the Columbia/Willamette

Inc. v. American Coalition of Life Activists, 290 F. 3d

1058, 1089, 1090 (gth Cir. 2002) (en banc) (“PPCW

1’) (Koszinski, J., dissenting). |

Such has always been the law under precedei:ts of this

Court, but it no longer is the law in the Ninth Circuit.

Nor, for practical purposes given how jurisdiction was laid

in this case and likely will be laid in similar future cases, is

it any longer the law in any other circuit either.

Now, under this Ninth Circuit precedent, even when a

speaker controls or acts in concert with no one else, he or

she can be found guilty of issuing a “threat” by dint merely

of how his or her speech might be acted upon by some other

person—even a person wholly unknown to the speaker.

Even more disturbingly, however, because of how jurisdic-

tion was laid in this case and undoubtedly will be laid in

future multi-defendant, multi-jurisdictional cases, this doc-

trinal aberration will not be confined to the Ninth Circuit.

Instead, it will inevitably be applied to persons exercising

their First Amendment rights in other circuits across the

nation. Irrespective of where outside the Ninth Circuit they

live, if they protest against abortion providers—or, for that

matter, against anyone else on any other hotly-controversial

issue—located in a Ninth Circuit jurisdiction, they will be

subject to the Ninth Circuit true-threat standard. Indeed,

should these amici choose to name abortion providers in a

6

Ninth Circuit jurisdiction, the Ninth Circuit aberration will

be applied to them, including the amicus Victoria Kraeger

of Port Leyden, New York, even though Second Circuit

true-threat doctrine is far different and, in deference to de-

cisions of this Court, far more protective of free speech.

The chill on free expression thus will be nationwide and

can be thawed only through this Court’s intervention.

This Court has stressed that, even for kinds of speech

that may be proscribed outright, “they are [not] categories

of speech entirely invisible to the Consttution. . . .” RAK

v. City of St. Paul, 505 U.S. 377, 383 (1992). Even fight-

ing words are categorically excluded from First Amend-

ment protection not because of their particular idea, but

because they employ a particularly intolerable and socially

unnecessary mode of expressing the idea—whatever idea it

may be. /d. at 393. Therefore the mode of expression will

be prohibited only if it is beyond question intolerable and

unnecessary. NAACP v. Claiborne Hardware Company, 458

U.S. 886, 915 (1982) (“The fact that such activity is con-

stitutionally protected . . . imposes a special obligation on

this Court to examine critically the basis on which liability

was imposed”’).

“{P|recision of regulation” thus is demanded when sup-

posed “threats” of violence occur in the context of constitu-

tionally-protected activity. /bid. Such precision is particu-

larly required when the speaker is to be held liable not

for his own unlawful conduct, but for the unlawful con-

duct of others. Such liability will be sustained only if: (1)

the speaker authorized, directed, or ratified specific tortious

activity, (2) his or her speech was likely to incite unlawful

conduct occurring within a reasonable time thereafter, or

(3) the speech evidenced other specific instructions to carry

out violent acts or threats. /d. at 927. “[Mlere advocacy of

the use of force or violence does not remove speech trom

the protection of the First Amendment.” /d. at 927. Rather,

the advocacy must be “directed to inciting or producing

7

imminent lawless action and is likely to incite or produce

such action.” /bid.

If the gravamen of the allegation is incitement to vi-

olence, then, incitement may be found only if there is a

proved, proximately-caused nexus between the statement

and any violent act that may follow. Id. at 922, 928. If the

gravamen is, by contrast, not incitement but threat, a true

threat under constitutional standards must be far more than

merely ‘“‘a kind of very crude offensive method of stating

a political opposition. . . .” Watts v. United States, 394 U.S.

705, 708 (1969). This Court in Watts understood itself as

obligated to interpret the statute prohibiting threats against

the President

against the background of a profound national com-

mitment to the principle that debate on public issues

shou!d be uninhibited, robust, and wide-open, and that

it may include vehement, caustic, and sometimes un-

pleasantly sharp attacks. . . . [/bid.|

Thus, an anti-war protestor would not be found guilty for

having declared to a crowd on the grounds of the Wash-

ington Monument, “If they ever make me carry a rifle the

first man | want to get in my sights is L.B.J.” Id. at 706. As

outrageous as the statement might have seemed to some, it

was in truth nothing more than political hyperbole. Jd. at

708. As this Court has said more recently, a true threat is a

statement in which 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.

Virginia v. Black, 538 U.S. 343, 359 (2003). As with the

cross-burning at issue there, a particular mode of expres-

sion need not always be intended to intimidate, but may

instead be core political speech, and so it is essential that

the statutory provision being applied not be interpreted so

as to create an unacceptable risk of the suppression of ideas.

Id. at 365.

8

As between these two doctrinal exceptions to First Amend-

ment freedom of expression, it is not entirely clear whether

the present case is to be deemed an incitement case or

a threat case or some combination of the two. Certainly

the notion advanced by the Ninth Circuit—the notion that

speakers are to be held responsible for what others, totally

uninvolved with the speakers themselves, choose to do with

what the speakers say—partakes of incitement, though it is

incitement adjudicated without the “extreme care” man-

dated by this Court. NAACP v. Claiborne Hardware Com-

pany, supra, 458 U.S. at 927. Yet however the Ninth Circuit

opinion might be categorized, it announces a First Amend-

ment free speech doctrine that is passing strange. Both the

Ninth Circuit majority, PPCW V, supra, 290 F. 3d at 1062,

and the Ninth Circuit dissent, éd. at 1101 (Berzon, J., dis-

senting), agreed that the posters and files contained no ex-

plicit threats—no “‘serious expression of an intent to com-

mit an act of unlawful violence” to a particular individual

or group of individuals. Virginia v. Black, supra, 538 U.S. at

359. rather, as Judge Berzon observed:

The posters and website could not and would not have

been proscribed, as “true threats” or otherwise, had

there been no (1) history of similar—although not

at all identical—publications put out by other people

that were followed by murders—by other people, not

members of either of the two defendant organizations

—of health professionals who performed abortions;

and (2) repeated advocacy by these defendants of the

proposition that violence against abortion providers

can be morally justified, advocacy that all concede was,

standing alone, itself protected by the First Amend-

ment. [/d. at 1102.]

Judge Berzon then identified the precise question before

the Court of Appeals:

whether that context is sufficient to turn a set of com-

munications that contains speech at the core of the