http://www.latimes.com/news/nationworld/nation/la-051602abortion_wr.story
Court: Abortion Activists Created 'True Threat'
By DAVID KRAVETS, Associated Press Writer
SAN FRANCISCO -- A federal appeals court reversed
course
today and ruled that anti-abortion activists who
created Wild
West-style posters and a Web site condemning
abortion doctors can
be held liable because their works amounted to
illegal threats, not free
speech.
However, the sharply divided 9th U.S. Circuit Court
of Appeals
ordered a lower-court judge to reduce the $108.5
million in punitive
damages a Portland, Ore., jury awarded to four
doctors who sued the
abortion foes.
At issue was whether the posters and Web sites
violated a 1994
federal law that makes it illegal to incite
violence and threaten abortion
doctors. In its 6-5 decision, the appeals court
called the works a "true
threat."
The same court had come to an opposite decision
last year. Many
members of Congress and others had said if the
court's original ruling
were allowed to stand, the Freedom of Access to
Clinic Entrances
Act would be gutted.
The anti-abortion activists had depicted various
doctors on Old
West-style wanted posters passed out at rallies and
on a Web site
called the "Nuremberg Files," which listed abortion
providers' names and addresses and declared
them guilty of crimes against humanity. The name of
Dr. Barnett Slepian was crossed off the list
after he was killed by a sniper's bullet at his
home near Buffalo, N.Y., in 1998.
Four doctors, claiming they feared for their lives,
sued under racketeering laws and the 1994 law.
And a federal jury found in 1999 that the Web site
and some of the posters amounted to threats
to kill.
The anti-abortion activists had argued the posters
were protected under the First Amendment
because they were merely a list of doctors and
clinics that they hoped to put on trial some day,
just as Nazi war criminals were at Nuremberg.
The appeals court today, however, disagreed.
Circuit Judge Pamela Ann Rymer wrote that there was
substantial evidence the posters were
distributed to intimidate doctors. Holding the
abortion foes accountable "does not impinge on
legitimate protest or advocacy," Rymer wrote.
In a dissent, Circuit Judge Alex Kozinski wrote
that "the evidence in the record does not support
a finding that defendants threatened plaintiffs."
The appeals court instructed the trial judge to
reconsider the $108.5 million in punitive damages in
light of the court's 2001 ruling in the Exxon
Valdez case.
In that case, the 9th Circuit said that the $5
billion punitive damages verdict against Exxon for the
1989 oil spill in Alaska was excessive. It said
that for every dollar in compensatory damages
awarded, the judge should allocate about $4 in
punitive damages.
In the abortion case, a jury awarded $12 million in
compensatory damages, but nine times as
much in punitive damages, well beyond the ratio
specified in the Exxon Valdez ruling.
Among the defendants was Michael Bray of Bowie,
Md., author of a book that justifies killing
doctors to stop abortions. Bray went to prison from
1985 to 1989 for his role in arson attacks
and bombings of seven clinics.
The case was widely seen as a test of a Supreme
Court ruling that said a threat must be explicit
and likely to cause "imminent lawless action."
During the trial, U.S. District Judge Robert Jones
had told the jury the posters and Web site
should be considered threats if they could be taken
as such by a "reasonable person." Jones also
had instructed the jury to consider the history of
violence in the anti-abortion movement, including
the slayings of Slepian and two other doctors whose
names had appeared on the list.
