UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.,
Plaintiffs-Appellees,
and
KAREN SWEIGERT, M.D.,
Plaintiff,
No. 99-35320
v.
D.C. No.
AMERICAN COALITION OF LIFE CV-95-01671-REJ
ACTIVISTS; ADVOCATES FOR LIFE
MINISTRIES; MICHAEL BRAY;
ANDREW BURNETT; DAVID A.
CRANE; TIMOTHY PAUL DRESTE;
MICHAEL B. DODDS; JOSEPH L.
FOREMAN; CHARLES ROY
MCMILLAN; STEPHEN P. MEARS;
BRUCE EVAN MURCH; CATHERINE
RAMEY; DAWN MARIE STOVER;
CHARLES WYSONG,
Defendants,
and
3919
MONICA MIGLIORINO MILLER;
DONALD TRESHMAN,
Defendants-Appellants.
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.,
Plaintiffs-Appellees,
and
KAREN SWEIGERT, M.D.,
Plaintiff,
v.
No. 99-35325
AMERICAN COALITION OF LIFE
D.C. No.
ACTIVISTS; ADVOCATES FOR LIFE
CV-95-01671-REJ
MINISTRIES; MICHAEL BRAY;
ANDREW BURNETT; DAVID A.
CRANE; TIMOTHY PAUL DRESTE;
JOSEPH L. FOREMAN; STEPHEN P.
MEARS; MONICA MIGLIORINO
MILLER; CATHERINE RAMEY; DAWN
MARIE STOVER; DONALD TRESHMAN;
CHARLES WYSONG,
Defendants,
and
MICHAEL DODDS; CHARLES ROY
MCMILLAN; BRUCE EVAN MURCH,
Defendants-Appellants.
3920
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.,
Plaintiffs-Appellees,
and
KAREN SWEIGERT, M.D.,
Plaintiff,
v.
No. 99-35327
AMERICAN COALITION OF LIFE
D.C. No.
ACTIVISTS; ADVOCATES FOR LIFE
CV-95-01671-REJ
MINISTRIES; MICHAEL BRAY;
ANDREW BURNETT; DAVID A.
CRANE; MICHAEL DODDS; CHARLES
ROY MCMILLAN; STEPHEN P.
MEARS; MONICA MIGLIORINO
MILLER; BRUCE EVAN MURCH;
CATHERINE RAMEY; DAWN MARIE
STOVER; DONALD TRESHMAN,
Defendants,
and
TIMOTHY PAUL DRESTE; JOSEPH L.
FOREMAN; CHARLES WYSONG,
Defendants-Appellants.
3921
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.,
Plaintiffs-Appellees,
and
KAREN SWEIGERT, M.D.,
Plaintiff,
v.
No. 99-35331
AMERICAN COALITION OF LIFE
ACTIVISTS; ADVOCATES FOR LIFE
D.C. No.
MINISTRIES; MICHAEL BRAY; CV-95-01671-REJ
ANDREW BURNETT; DAVID A.
CRANE; CATHERINE RAMEY; DAWN
MARIE STOVER,
Defendants-Appellants,
and
TIMOTHY PAUL DRESTE; MICHAEL
DODDS; JOSEPH L. FOREMAN;
CHARLES ROY MCMILLAN; STEPHEN
P. MEARS; MONICA MIGLIORINO
MILLER; BRUCE EVAN MURCH;
DONALD TRESHMAN; CHARLES
WYSONG,
Defendants.
3922
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.,
Plaintiffs-Appellees,
v.
AMERICAN COALITION OF LIFE
ACTIVISTS; ADVOCATES FOR LIFE
No. 99-35333
MINISTRIES; MICHAEL BRAY;
D.C. No.
ANDREW BURNETT; DAVID A. CV-95-01671-REJ
CRANE; TIMOTHY PAUL DRESTE;
MICHAEL B. DODDS; JOSEPH L.
FOREMAN; CHARLES ROY
MCMILLAN; BRUCE EVAN MURCH;
CATHERINE RAMEY; DAWN MARIE
STOVER; DONALD TRESHMAN;
CHARLES WYSONG,
Defendants.
PAUL DEPARRIE,
Movant-Appellant.
3923
PLANNED PARENTHOOD OF
THE COLUMBIA/WILLAMETTE INC.;
PORTLAND FEMINIST WOMEN'S
HEALTH CENTER; ROBERT CRIST,
M.D.; WARREN M. HERN, M.D.;
ELIZABETH NEWHALL, M.D.; JAMES
NEWHALL, M.D.; KAREN SWEIGERT,
M.D., individually and on behalf
of all persons similarly situated,
Plaintiffs-Appellees,
No. 99-35405
v.
D.C. No.
AMERICAN COALITION OF LIFE CV-95-01671-REJ
ACTIVISTS; ADVOCATES FOR LIFE
OPINION
MINISTRIES; MICHAEL BRAY;
ANDREW BURNETT; DAVID CRANE;
TIMOTHY PAUL DRESTE; MICHAEL
DODDS; JOSEPH L. FOREMAN;
CHARLES ROY MCMILLAN; MONICA
MIGLIORINO MILLER; BRUCE EVAN
MURCH; CATHERINE RAMEY; DAWN
MARIE STOVER; DONALD TRESHMAN;
CHARLES WYSONG,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued September 12, 2000
Submitted September 15, 2000*
_________________________________________________________________
*Following oral argument, we deferred submission and encouraged the
parties to settle. We asked the parties to notify us within 48 hours if nego-
tiations were progressing and more time was needed. Having heard noth-
ing by close of business on September 14, 2000, we ordered the case
submitted.
3924
Filed March 28, 2001
Before: Alex Kozinski and Andrew J. Kleinfeld,
Circuit Judges, and William W Schwarzer, District Judge.**
Opinion by Judge Kozinski
_________________________________________________________________
**The Honorable William W Schwarzer, United States Senior District
Judge for the Northern District of California, sitting by designation.
COUNSEL
Christopher A. Ferrara, American Catholic Lawyers Associa-
tion Inc., Ramsey, New Jersey, argued the cause for all
Appellants, and submitted a brief on behalf of appellant Don-
ald J. Treshman.
Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison,
New York, New York, argued the cause for Appellees.
Stephen J. Safranek, Thomas More Center for Law & Justice,
Ann Arbor, Michigan, for Appellants American Coalition of
Life Activists, Advocates for Life Ministries, Andrew Bur-
nett, David Crane, Catherine Ramey, Michael Bray and Dawn
Stover.
Robert M. O'Neil, for amicus curiae Thomas Jefferson Center
for the Protection of Free Expression, Charlottesville, Vir-
ginia, in support of reversal.
Paul deParrie, Portland, Oregon, amicus curiae, in support of
reversal.
3927
Michael H. Simon, Perkins Coie LLP, Portland, Oregon, for
amicus curiae ACLU Foundation of Oregon, Inc., in support
of affirmance.
Susan M. Popik, Chapman, Popik & White, San Francisco,
California, for amici curiae Feminist Majority Foundation,
Center for Reproductive Law and Policy, National Abortion
and Reproductive Rights Action League and NARAL Foun-
dation, National Abortion Federation, National Coalition of
Abortion Providers, National Organization for Women Foun-
dation, NOW Legal Defense and Education Fund, National
Women's Health Foundation, Northwest Women's Law Cen-
ter, Physicians for Reproductive Choice and Health, and
Women's Law Project, in support of affirmance.
Richard Blumenthal, Attorney General of Connecticut, for
amici curiae Connecticut, Arizona, California, Colorado,
Hawaii, Kansas, Montana, Nevada, New York, Oklahoma,
Oregon and Washington, in support of affirmance.
Erwin Chemerinsky, University of Southern California Law
School, Los Angeles, California, for amici curiae Anti-
Defamation League, the American Jewish Committee, Hadas-
sah, the Women's Zionist Organization of America, Inc., in
support of affirmance.
_________________________________________________________________
OPINION
KOZINSKI, Circuit Judge:
Anti-abortion activists intimidated abortion providers by
publishing their names and addresses. A jury awarded more
than $100 million in actual and punitive damages against the
activists, and the district court enjoined their speech. We con-
sider whether such speech is protected by the First Amend-
ment.
3928
I
During a 1995 meeting called to mark the anniversary of
Roe v. Wade, 410 U.S. 113 (1973), the American Coalition of
Life Activists (ACLA) unveiled a poster listing the names and
addresses of the "Deadly Dozen," a group of doctors who per-
form abortions. In large print, the poster declared them guilty
of "crimes against humanity" and offered $5,000 for informa-
tion leading to the "arrest, conviction and revocation of
license to practice medicine." The poster was later published
in an affiliated magazine, Life Advocate, and distributed at
ACLA events.
Later that year, in front of the St. Louis federal courthouse,
ACLA presented a second poster, this time targeting Dr. Rob-
ert Crist. The poster accused Crist of crimes against humanity
and various acts of medical malpractice, including a botched
abortion that caused the death of a woman. Like the Deadly
Dozen List, the poster included Crist's home and work
addresses, and in addition, featured his photograph. The
poster offered $500 to "any ACLA organization that success-
fully persuades Crist to turn from his child killing through
activities within ACLA guidelines" (which prohibit violence).
In January 1996, at its next Roe anniversary event, ACLA
unveiled a series of dossiers it had compiled on doctors, clinic
employees, politicians, judges and other abortion rights sup-
porters. ACLA dubbed these the "Nuremberg Files, " and
announced that it had collected the pictures, addresses and
other information in the files so that Nuremberg-like war
crimes trials could be conducted in "perfectly legal courts
once the tide of this nation's opinion turns against the wanton
slaughter of God's children." ACLA sent hard copies of the
files to Neal Horsley, an anti-abortion activist, who posted the
information on a website.1 The website listed the names of
_________________________________________________________________
1 Plaintiffs did not sue Horsley, but the district court concluded that Hor-
sley was an agent of ACLA and other defendants as well as a co-
3929
doctors and others who provide or support abortion and called
on visitors to supply additional names.2 The website marked
the names of those already victimized by anti-abortion terror-
ists, striking through the names of those who had been mur-
dered and graying out the names of the wounded. Although
ACLA's name originally appeared on the website, Horsley
removed it after the initiation of this lawsuit.
Neither the posters nor the website contained any explicit
threats against the doctors. But the doctors knew that similar
posters prepared by others had preceded clinic violence in the
past. By publishing the names and addresses, ACLA robbed
the doctors of their anonymity and gave violent anti-abortion
activists the information to find them. The doctors responded
to this unwelcome attention by donning bulletproof vests,
drawing the curtains on the windows of their homes and
accepting the protection of U.S. Marshals.
Some of the doctors went on the offensive. Along with two
Portland-based health centers, the doctors sued ACLA, twelve
activists and an affiliated organization, alleging that their
threatening statements violated state and federal law, includ-
ing the Freedom of Access to Clinic Entrances Act of 1994
(FACE), 18 U.S.C. S 248.3 Because the doctors claimed they
_________________________________________________________________
conspirator. See Planned Parenthood of the Columbia/Willamette, Inc. v.
American Coalition of Life Activists, 41 F. Supp. 2d 1130, 1152 (D. Or.
1999). In addition, the court found that the defendants came up with the
idea for the webpage and sent Horsley much of its content. See id. at 1152-
53.
2 In addition to plaintiffs, the Nuremberg Files website identifies dozens
of clinic employees and public figures as abortion supporters (and future
war crimes defendants), including six current members of the Supreme
Court, Bill Clinton, Al Gore, Janet Reno, Jack Kevorkian, C. Everett
Koop, Mary Tyler Moore, Whoopi Goldberg and, for reasons unknown,
Retired Justice Byron White. See Roe, 410 U.S. at 221 (White, J., dissent-
ing).
3 Specifically, they alleged violations of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. S 1962, the Oregon Racke-
teer Influenced and Corrupt Organizations Act, Or. Rev. Stat. S 166.720,
and the state tort of intentional infliction of emotional distress. The state
law claims were abandoned before trial, and the district court submitted
to the jury only the FACE and RICO claims.
3930
were harmed by defendants' speech, the district court
instructed the jury that defendants could only be liable if their
statements were "true threats" and therefore unprotected by
the First Amendment.4 In a special verdict, the jury found that
all the statements were true threats and awarded the doctors
$107 million in actual and punitive damages.5 The district
court then issued an injunction barring defendants from mak-
ing or distributing the posters, the webpage or anything simi-
lar. ACLA and the other defendants appeal, claiming that
their statements are protected by the First Amendment.6
_________________________________________________________________
4 We call statements "true threats" to distinguish them from statements
that are threatening on their face but could only be understood, under the
circumstances, as hyperbole or jokes. For example, in Watts v. United
States, 394 U.S. 705 (1969) (per curiam), the Supreme Court held that the
defendant's statement that "[i]f they ever make me carry a rifle the first
man I want to get in my sights is L.B.J.," was not a true threat. Id. at 706,
708 (internal quotation marks and citation omitted). It was instead "politi-
cal hyperbole . . . a kind of very crude offensive method of stating a politi-
cal opposition to the President." Id. at 708 (internal quotation marks
omitted).
5 The jury held that defendants Michael Bray and Donald Treshman
were not liable under RICO. Although the district court had previously
found Bray in default because of his refusal to comply with discovery
orders, the court later set aside the default and entered judgment against
Bray on the FACE claim based on the verdict.
6 In No. 99-35333, Paul deParrie, a non-party, moves to intervene in the
appeal because he was enjoined as an employee and agent of one of the
defendant organizations, the Advocates for Life Ministries (ALM). See
Fed. R. Civ. P. 65(d). DeParrie relies on Keith v. Volpe, 118 F.3d 1386,
1391 (9th Cir. 1997), but that case dealt with a situation where a non-party
sought to appeal a judgment that would not otherwise have been appealed
by the parties. The question then was whether someone who is not a party
might take the legally operative step of filing a notice of appeal. Here, all
of the losing parties have appealed and deParrie's proposed participation
is in the nature of an amicus. We therefore construe deParrie's motion as
one to participate as an amicus curiae and grant it.
In No. 99-35320 and No. 99-35405, a former defendant, Monica
Migliorino Miller, filed a notice of appeal of the injunction with which the
district court ordered she be served. At plaintiffs' request, the district court
had dismissed Miller from the suit before trial and so she was not herself
enjoined. The injunction applies to her only insofar as she is an agent or
employee of defendants, and so she has no independent standing to appeal.
Her notice of appeal is therefore ordered stricken.
3931
II
A. Extreme rhetoric and violent action have marked many
political movements in American history. Patriots intimidated
loyalists in both word and deed as they gathered support for
American independence. John Brown and other abolitionists,
convinced that God was on their side, committed murder in
pursuit of their cause. In more modern times, the labor, anti-
war, animal rights and environmental movements all have had
their violent fringes. As a result, much of what was said even
by nonviolent participants in these movements acquired a
tinge of menace.
The Supreme Court confronted this problem in NAACP v.
Claiborne Hardware Co., 458 U.S. 886 (1982). There, a
group of white-owned businesses sued the NAACP and others
who organized a civil rights boycott against the stores. To
give the boycott teeth, activists wearing black hats stood out-
side the stores and wrote down the names of black patrons.
After these names were read aloud at meetings and published
in a newspaper, sporadic acts of violence were committed
against the persons and property of those on the list. At one
public rally, Charles Evers, a boycott organizer, threatened
that boycott breakers would be "disciplined" and warned that
the sheriff could not protect them at night. See id. at 902. At
another rally, Evers stated, "If we catch any of you going in
any of them racist stores, we're gonna break your damn
neck." See id. The Mississippi courts held the boycott orga-
nizers liable based on Evers's statements and the activities of
the black-hatted activists.
The Supreme Court acknowledged that Evers's statements
could be interpreted as inviting violent retaliation, "or at least
as intending to create a fear of violence whether or not
improper discipline was specifically intended." Id. at 927
(emphasis added). Nevertheless, it held that the statements
were protected because there was insufficient evidence that
Evers had "authorized, ratified, or directly threatened acts of
3932
violence." Id. at 929. Nor was publication of the boycott vio-
lators' names a sufficient basis for liability, even though col-
lecting and publishing the names contributed to the
atmosphere of intimidation that had harmed plaintiffs. See id.
at 925-26. While Charles Evers and the defendants in our case
pursued very different political goals, the two cases have one
key thing in common: Political activists used words in an
effort to bend opponents to their will.
[1] The First Amendment protects ACLA's statements no
less than the statements of the NAACP. Defendants can only
be held liable if they "authorized, ratified, or directly threat-
ened" violence. If defendants threatened to commit violent
acts, by working alone or with others, then their statements
could properly support the verdict. But if their statements
merely encouraged unrelated terrorists, then their words are
protected by the First Amendment.
[2] Political speech may not be punished just because it
makes it more likely that someone will be harmed at some
unknown time in the future by an unrelated third party. In
Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), the
Supreme Court held that the First Amendment protects speech
that encourages others to commit violence, unless the speech
is capable of "producing imminent lawless action. " Id. at 447.
It doesn't matter if the speech makes future violence more
likely; advocating "illegal action at some indefinite future
time" is protected. Hess v. Indiana , 414 U.S. 105, 108 (1973)
(per curiam). If the First Amendment protects speech advocat-
ing violence, then it must also protect speech that does not
advocate violence but still makes it more likely. Unless
ACLA threatened that its members would themselves assault
the doctors, the First Amendment protects its speech.7
_________________________________________________________________
7 If such statements were unprotected threats, newspapers might face lia-
bility for publishing stories that increased the likelihood that readers
would harm particular persons, for example by disclosing the identity of
mobsters in hiding or convicted child molesters. This would permit the
3933
B. ACLA's speech no doubt frightened the doctors, but the
constitutional question turns on the source of their fear.8 The
doctors might have understood the statements as veiled threats
that ACLA's members (or others working with ACLA) would
inflict bodily harm on the doctors unless they stopped per-
forming abortions. So interpreted, the statements are unpro-
tected by the First Amendment, regardless of whether the
activists had the means or intent to carry out the threats. See
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 n.3
(9th Cir. 1990). So long as they should have foreseen that the
_________________________________________________________________
imposition of liability for the mere publication of news, dramatically
undercutting the freedom constitutionally accorded to the press. Cf. New
York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing the
need to protect our "profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open").
8 It is not unlawful to say things that frighten other people. A doctor who
discloses an adverse prognosis often instills fear in the patient and his fam-
ily; predicting a future event--"That bus is about to hit your child!"--can
cause the listener intense apprehension. Yet such statements are not (and
cannot be made) unlawful. Nor does it matter that the speaker makes the
statement for the very purpose of causing fear. Let's say your malicious
neighbor sees your house is burning. He calls you at work and announces:
"Your house is on fire!" This may scare you--it may have no other
purpose--yet it is lawful because it is speech and does not fall within one
of the narrow categories the Supreme Court has held is unprotected under
the First Amendment.
The matter is more complicated where the speech is intended to intimi-
date the listener into changing his conduct. Blackmail and extortion--the
threat that the speaker will say or do something unpleasant unless you
take, or refrain from taking, certain actions--are not constitutionally pro-
tected. See, e.g., Watts, 394 U.S. 705. On the other hand, the statement,
"If you smoke cigarettes you will die of lung cancer," is protected, even
though its purpose is to scare you into quitting smoking. So is, "If you
mess around with Tom's girlfriend, he'll break your legs," unless the
speaker is sent by Tom. The difference is this: In the case of blackmail and
extortion, you are given to understand that, unless you do what's asked of
you, the speaker himself (or someone acting on his behalf) will bring
about that which you abhor; in the other examples, the speaker has no con-
trol over the adverse consequences and merely predicts what is likely to
happen if you act (or refrain from acting) in a particular way.
3934
doctors would take the threats seriously, the speech is unlaw-
ful. See id. at 1265.9
But the statements might also have scared the doctors in
another way. By singling out the plaintiffs from among the
thousands across the country who are involved in delivering
abortion services, ACLA called them to the unfriendly atten-
tion of violent anti-abortion activists. And by publishing the
doctors' addresses, ACLA made it easier for any would-be
terrorists to carry out their gruesome mission. 10 From the doc-
tors' point of view, such speech may be just as frightening as
a direct threat, but it remains protected under Claiborne
Hardware.
The jury would be entitled to hold defendants liable if it
understood the statements as expressing their intention to
_________________________________________________________________
9 Our case law has not been entirely consistent as to whether a speaker
may be penalized for negligently uttering a threat or whether he must have
specifically intended to threaten. Compare Orozco-Santillan, 903 F.2d at
1265 ("Whether a particular statement may properly be considered to be
a threat is governed by an objective standard--whether a reasonable per-
son would foresee that the statement would be interpreted by those to
whom the maker communicates the statement as a serious expression of
intent to harm or assault."), with United States v. Gilbert (Gilbert I), 813
F.2d 1523, 1529 (9th Cir. 1987) ("[Gilbert] correctly identifies the element
of intent specified in section 3631 as the determinative factor separating
protected expression from unprotected criminal behavior . . . . [T]he stat-
ute's requirement of intent to intimidate serves to insulate the statute from
unconstitutional application to protected speech. " (citation omitted)).
While we believe that Gilbert I states the correct rule, the result here is the
same under either standard. We therefore presume that the less speech-
protective standard of Orozco-Santillan applies.
10 We need not decide here whether the First Amendment would protect
defendants from a suit for invasion of privacy, because plaintiffs do not
claim damages based solely on the publication of private facts, namely
their addresses and telephone numbers. Cf. Anderson v. Fisher Broadcast-
ing Cos., 712 P.2d 803, 807 (Or. 1986) (recognizing a tort for invasion of
privacy when the tortfeasor has the specific intent to cause plaintiff severe
mental or emotional distress and such conduct exceeds "the farthest reach
of socially tolerable behavior").
3935
assault the doctors but not if it understood the statements as
merely encouraging or making it more likely that others
would do so. But the jury instruction was ambiguous on this
critical point. The instruction provided that "[a] statement is
a `true threat' when a reasonable person making the statement
would foresee that the statement would be interpreted by
those to whom it is communicated as a serious expression of
an intent to bodily harm or assault." Jury Instruction No. 10,
at 14. This instruction was consistent with our previous threat
cases. See Lovell v. Powell Unified Sch. Dist., 90 F.3d 367,
372 (9th Cir. 1996). But in those previous cases, there was no
need to emphasize that threats must be direct because the
speakers themselves made it perfectly clear that they would
be the ones to carry out the threats.11 Under the instruction in
this case, the jury could have found the anti-abortion activists
liable based on the fact that, by publishing the doctors' names,
the activists made it more likely that the doctors would be
harmed by third parties.
This is not a fanciful possibility. The record contains much
evidence that the doctors were frightened, at least in part,
because they anticipated that their unwelcome notoriety could
expose them to physical attacks from third parties unrelated
to defendants. For example, plaintiff Dr. Elizabeth Newhall
testified, "I feel like my risk comes from being identified as
_________________________________________________________________
11 See, e.g., Lovell, 90 F.3d at 369 (student told administrator, "I'm
going to shoot you"); Melugin v. Hames, 38 F.3d 1478, 1481 (9th Cir.
1994) (civil defendant sent letter to judge threatening to kill him); Orozco-
Santillan, 903 F.2d at 1264 (arrestee threatened INS agent at his arrest and
during subsequent phone calls); United States v. Gilbert (Gilbert II), 884
F.2d 454, 455-56 (9th Cir. 1989) (white supremacist mailed a letter to the
head of an inter-racial adoption agency, condemning her occupation and
enclosing posters suggesting he would commit violence against inter-
racial couples and ethnic minorities); United States v. Mitchell, 812 F.2d
1250, 1252 (9th Cir. 1987) (defendant told Secret Service agents he was
going to kill them and the President); Roy v. United States, 416 F.2d 874,
875 (9th Cir. 1969) (marine called the White House and said he was going
to kill the President). The instruction continues to be good law in cases
where the source of the threatened violence is not an issue.
3936
a target. And . . . all the John Salvis in the world know who
I am, and that's my concern."12 Testimony of Elizabeth
Newhall, Planned Parenthood of the Columbia/Willamette,
Inc. v. American Coalition of Life Activists , No. CV 95-
01671-JO, at 302 (D. Or. Jan. 8, 1999); see also id. at 290
("[U]p until January of `95, I felt relatively diluted by the--
you know, in the pool of providers of abortion services. I
didn't feel particularly visible to the people who were--you
know, to the John Salvis of the world, you know. I sort of felt
one of a big, big group."). Likewise, Dr. Warren Martin Hern,
another plaintiff, testified that when he heard he was on the
list, "I was terrified . . . . [I]t's hard to describe the feeling that
--that you are on a list of people to--who have been brought
to public attention in this way. I felt that this was a--a list of
doctors to be killed." Testimony of Warren Martin Hern,
Planned Parenthood, No. CV 95-01671-JO, at 625 (Jan. 11,
1999).
Were the instruction taken literally, the jury could have
concluded that ACLA's statements contained "a serious
expression of intent to harm," not because they authorized or
directly threatened violence, but because they put the doctors
in harm's way. However, the First Amendment does not per-
mit the imposition of liability on that basis.
C. Although the jury instruction was ambiguous, we need
not decide whether the ambiguity was so great as to require
us to set aside the verdict. Even if the jury drew only the per-
missible inference, we must evaluate the record for ourselves
to ensure that the judgment did not trespass on the defendants'
First Amendment rights. Specifically, we must determine
whether ACLA's statements could reasonably be construed as
saying that ACLA (or its agents) would physically harm doc-
_________________________________________________________________
12 In December 1994, John Salvi killed two clinic workers and wounded
five others in attacks on two clinics in Brookline, Massachusetts; Salvi
later fired shots at a clinic in Norfolk, Virginia before he was appre-
hended. Salvi is not a defendant in this case.
3937
tors who did not stop performing abortions. Because the dis-
trict court rejected the First Amendment claim, we conduct a
de novo review of both the law and the relevant facts. See
Lovell, 90 F.3d at 370. The question therefore is not whether
the facts found below are supported by the record but whether
we, looking at the record with fresh eyes, make the same find-
ings. If we disagree with the district court, our findings pre-
vail. See Eastwood v. National Enquirer, Inc., 123 F.3d 1249,
1252 (9th Cir. 1997).
We start by noting that none of the statements ACLA is
accused of making mention violence at all. While pungent,
even highly offensive, ACLA's statements carefully avoid
threatening the doctors with harm "in the sense that there are
no `quotable quotes' calling for violence against the targeted
providers." Planned Parenthood of the Columbia/Willamette,
Inc. v. American Coalition of Life Activists , 23 F. Supp. 2d
1182, 1186 (D. Or. 1998). Instead, ACLA offers rewards to
those who take nonviolent measures against the doctors, such
as seeking the revocation of their medical licenses and pro-
testing their activities. One poster talks about persuading Crist
to "turn from his child killing," but stops short of suggesting
any violence or other criminal conduct against him. The web-
site seeks to gather information about abortion supporters and
encourages others to do the same. ACLA also speaks of future
"perfectly legal" Nuremberg-like trials, to be held at a time
when public opinion has turned in its favor.
We recognize that the words actually used are not disposi-
tive, because a threat may be inferred from the context in
which the statements are made.13 However, there are at least
_________________________________________________________________
13 See, e.g., Orozco-Santillan, 903 F.2d at 1265 ("Alleged threats should
be considered in light of their entire factual context, including the sur-
rounding events and reaction of the listeners."); Gilbert II, 884 F.2d at 457
("The fact that a threat is subtle does not make it less of a threat."). Other
courts have also recognized that ambiguous language may still constitute
a threat. See United States v. Dinwiddie , 76 F.3d 913, 925 (8th Cir. 1996)
3938
two kinds of ambiguity that context can resolve. The first
deals with statements that call for violence on their face, but
are unclear as to who is to commit the violent acts--the
speaker or a third party. All cases of which we are aware fall
into this category: They hold that, where the speaker
expressly mentions future violence, context can make it clear
that it is the speaker himself who means to carry out the
threat. See note 13 supra.
A more difficult problem arises when the statements, like
the ones here, not only fail to threaten violence by the defen-
dants, but fail to mention future violence at all. 14 Can context
supply the violent message that language alone leaves out?
While no case answers this question, we note important theo-
retical objections to stretching context so far. Context, after
all, is often not of the speaker's making. For example, the dis-
trict court in this case admitted evidence of numerous acts of
violence surrounding the abortion controversy, almost none of
them committed by the defendants or anyone connected with
_________________________________________________________________
(holding that an anti-abortion activist, who had previously used force
against clinic personnel, threatened Dr. Crist when she screamed at him
on numerous occasions that he could be killed if he kept on committing
abortions); United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994) (finding
a threat where defendant sent letters to a federal appellate judge suggest-
ing he would use force against the panel unless it reversed its decision);
United States v. Khorrami, 895 F.2d 1186, 1193 (7th Cir. 1990) (holding
that defendant made a threat by repeatedly making anti-Semitic phone
calls to a Jewish organization and sending it letters calling for the deaths
of Israeli leaders).
14 The defendants come closest to suggesting violence on the webpage,
where the names of the murdered doctors are stricken and the wounded
ones are grayed. We read the striketype and graying as the equivalent of
marking "killed" or "wounded" next to the names. This clearly reports
past violent acts and may connote approval. But it cannot fairly be read
as calling for future violence against the several hundred other doctors,
politicians, judges and celebrities on the list; otherwise any statement
approving past violence could automatically be construed as calling for
future violence.
3939
them.15 In the jury's eyes, then, defendants' statements were
infused with a violent meaning, at least in part, because of the
actions of others. If this were a permissible inference, it could
have a highly chilling effect on public debate on any cause
where somebody, somewhere has committed a violent act in
connection with that cause. A party who does not intend to
threaten harm, nor say anything at all suggesting violence,
would risk liability by speaking out in the midst of a highly
charged environment.
In considering whether context could import a violent
meaning to ACLA's non-violent statements, we deem it
highly significant that all the statements were made in the
context of public discourse, not in direct personal communi-
cations. Although the First Amendment does not protect all
forms of public speech, such as statements inciting violence
or an imminent panic, the public nature of the speech bears
heavily upon whether it could be interpreted as a threat.16 As
we held in McCalden v. California Library Ass'n, 955 F.2d
1214 (9th Cir. 1992), "public speeches advocating violence"
are given substantially more leeway under the First Amend-
ment than "privately communicated threats." Id. at 1222; see
_________________________________________________________________
15 Defendants objected to admission of much of this evidence and press
their objections on appeal. Given our ruling on the merits, we need not
pass on this issue. Nothing we say, therefore, should be construed as
approving the district court's evidentiary rulings.
16 The doctors do not claim that ACLA's speech amounted to incite-
ment. To rise to incitement, the speech must be capable of "producing
imminent lawless action." Brandenburg, 395 U.S. at 447. Here, the state-
ments were made at public rallies, far away from the doctors, and before
an audience that included members of the press. ACLA offered rewards
to those who stopped the doctors at "some indefinite future time," Hess,
414 U.S. at 108, and the ambiguous message was hardly what one would
say to incite others to immediately break the law. Finally, the statements
were not in fact followed by acts of violence. See Claiborne Hardware,
458 U.S. at 928 ("[H]ad [the speech] been followed by acts of violence,
a substantial question would be presented" as to incitement, but "[w]hen
such appeals do not incite lawless action, they must be regarded as pro-
tected speech.").
3940
also Orozco-Santillan, 903 F.2d at 1265 ("Although a threat
must be `distinguished from what is constitutionally protected
speech,' this is not a case involving statements with a political
message." (quoting Watts v. United States, 394 U.S. 705, 707
(1969) (per curiam)).
There are two reasons for this distinction: First, what may
be hyperbole in a public speech may be understood (and
intended) as a threat if communicated directly to the person
threatened, whether face-to-face, by telephone or by letter. In
targeting the recipient personally, the speaker leaves no doubt
that he is sending the recipient a message of some sort. In
contrast, typical political statements at rallies or through the
media are far more diffuse in their focus because they are
generally intended, at least in part, to shore up political sup-
port for the speaker's position.
[3] Second, and more importantly, speech made through the
normal channels of group communication, and concerning
matters of public policy, is given the maximum level of pro-
tection by the Free Speech Clause because it lies at the core
of the First Amendment. See Claiborne Hardware , 458 U.S.
at 926-27 ("Since respondents would impose liability on the
basis of a public address--which predominantly contained
highly charged political rhetoric lying at the core of the First
Amendment--we approach this suggested basis of liability
with extreme care."). With respect to such speech, we must
defer to the well-recognized principle that political statements
are inherently prone to exaggeration and hyperbole. See
Watts, 394 U.S. at 708 ("The language of the political arena
. . . is often vituperative, abusive, and inexact. " (citation omit-
ted)). If political discourse is to rally public opinion and chal-
lenge conventional thinking, it cannot be subdued. Nor may
we saddle political speakers with implications their words do
not literally convey but are later "discovered " by judges and
juries with the benefit of hindsight and by reference to facts
over which the speaker has no control.
3941
Our guiding light, once again, is Claiborne Hardware.
There, Charles Evers expressly threatened violence when he
warned the boycott violators that "we're gonna break your
damn neck[s]," and that the sheriff could not protect them
from retribution. See 458 U.S. at 902. Evers made these state-
ments at a time when there had already been violence against
the boycott breakers. Evers did not himself identify specific
individuals to be disciplined, but his associates had gathered
and published the names, and there's no doubt that the black
community in the small Mississippi county where the boycott
was taking place knew whom Evers was talking about. The
Supreme Court held that, despite his express call for violence,
and the context of actual violence, Evers's statements were
protected, because they were quintessentially political state-
ments made at a public rally, rather than directly to his tar-
gets. See id. at 928-29.
[4] If Charles Evers's speech was protected by the First
Amendment, then ACLA's speech is also protected. 17 Like
Evers, ACLA did not communicate privately with its targets;
the statements were made in public fora. And, while ACLA
named its targets, it said nothing about planning to harm
them; indeed, it did not even call on others to do so. This
stands in contrast to the words of Charles Evers, who explic-
itly warned his targets that they would suffer broken necks
and other physical harm. Under the standard of Claiborne
Hardware, the jury's verdict cannot stand.18
_________________________________________________________________
17 We cannot distinguish this case from Claiborne Hardware on the
ground that the speech is aimed at impeding abortions, which are constitu-
tionally protected against government interference. The speech in Clai-
borne Hardware likewise sought to prevent lawful conduct--black
citizens' patronage of white stores--that the government could not ban
without violating the Equal Protection Clause. The Constitution protects
rights against government interference; it doesn't justify the suppression
of private speech that tries to deter people from exercising those rights.
18 For precisely the same reasons, the district court could not enjoin the
defendants based upon such protected statements. We must therefore
vacate the injunction as well.
3942
VACATED and REMANDED with instructions that the
district court dissolve the injunction and enter judgment for
the defendants on all counts.
3943