Court reverses ruling on abortion activists

Associated Press

SAN FRANCISCO — A federal appeals court reversed course Thursday 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 someday, just as Nazi war criminals were at Nuremberg.

The appeals court on Thursday, 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.