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Free Speech or True Threats?
Abortion "wanted posters" case continues

By JANN CARSON

In a case that appears destined for the U.S. Supreme Court, the latest decision of the 9th Circuit Court of Appeals has affirmed a Portland jury's conclusion that anti-abortion activists in the Planned Parenthood "wanted posters" case engaged in threats of physical harm, which fall outside the protection of the First Amendment.

In May of this year, an en banc panel of the 9th Circuit Court of Appeals, reversing the decision of a three-judge appellate panel, voted to uphold the trial court decision against the anti-abortion defendants in this civil lawsuit. The civil lawsuit, filed by Planned Parenthood in 1995, successfully sought an injunction and damages against the American Coalition of Life Activists, Advocates for Life Ministries and several individuals for distributing "wanted posters" that targeted specific abortion providers for threats of violence.

The ACLU Foundation of Oregon has filed friend of the court or amicus curiae briefs on behalf of Planned Parenthood and the other plaintiffs in this case at both the trial and appellate court. Throughout this case the ACLU has maintained that the safety of abortion providers could be secured by an appropriately crafted court order that does not violate the First Amendment rights of anti-abortion protesters.

ACLU believes the trial courtās order against the anti-abortion activists in the Planned Parenthood "wanted posters" case draws an appropriate line between political speech protected by the First Amendment and threats of physical harm which fall outside the bounds of free speech. However, ACLU remains concerned that the 9th Circuit decision did not adopt what we believe is the correct method of analyzing when implied threats do not come under the protection of free speech.

Throughout this case, ACLU has urged the courts to adopt a two-part test for defining "true threats," arguing that a court or jury must find both that a "reasonable person" who was the target of an alleged threat would be placed in fear, and that the speaker intended to create that fear. ACLU strongly believes this test is necessary to afford the greatest protection to free speech, especially political speech that is often harsh and mean-spirited. At the same time, the First Amendment may not be used as a shield by those who engage in acts of violence or issue threats of violence. While we expect the defendants to seek review of this case by the U.S. Supreme Court, at this writing they have not yet filed a petition for certerorai.

Michael Simon of Perkins Coie LLP is the ACLUās lead cooperating attorney in this case. He has been assisted by Chin See Ming of the same law firm.