Anti-abortion Web site: Creative intimidation, not free expression

An appeals court ruling draws a necessary distinction between intimidation and free speech.

Editorial. July 1, 2002.

As we now know so well, terror tactics can come in many forms. A 6-5 majority decision of the California-based 9th U.S. Circuit Court of Appeals has upheld the verdict (if not the monetary award) in a case where the tactics were novel but the end result was clear intimidation aimed at physicians practicing medicine in a lawful manner.

The groups and individuals who are the defendants in this civil case used "wanted"-style posters and a Web site as part of an effort to stop doctors from performing abortions. Both a jury and this court found that the way they did so made them liable under the Freedom of Access to Clinic Entrances Act of 1994.

An earlier appeals court reversal of the verdict was negated by this most recent ruling, which is likely headed to the U.S. Supreme Court. (The citation for the case is Planned Parenthood of the Columbia/?Willamette Inc., et al. v. American Coalition of Life Activists, et al., and we reported on the details of the case, including an American Medical Association friend-of-the-court brief on behalf of the plaintiffs, in our June 10 issue.)

The defendants claimed that they were exercising their right of free speech. Yet context is crucial in such cases.

Both the trial court and this appeals panel found these posters and Web site rose to the legal standard of a "true threat." A key element of the appeals court analysis was that three doctors were slain after being targeted in posters. The court also found that the Web site in question, known as the Nuremberg Files, crossed the protected speech line when it crossed out the names of doctors gunned down. Someone whose name appeared in such circumstances could reasonably assume to be on a genuine hit list. [...]