In its 6-5 decision, the 9th U.S. Court of Appeals ruled Thursday that comments posted on Web sites and anti-abortion "wanted" posters are not constitutionally protected speech under the First Amendment, but rather constitute a "true threat." The appeals court, however, sent the $108 million damages award back to a lower court for reconsideration.
The decision centered around the Freedom of Access to Clinics Entrances Act (FACE), a federal law that protects reproductive health services and its staff from violence or threats. A person who violates the law faces fines or imprisonment.
"FACE itself requires that the threat of force be made with the intent to intimidate," Circuit Judge Pamela Ann Rymer wrote in her opinion. The defendant's "conduct amounted to a true threat and is not protected speech."
Circuit Judge Stephen Reinhardt, however, disagreed with the decision. In his dissent, he wrote that the majority's unwillingness to recognize the difference between political speech and private threats "is extremely troublesome."
"Political speech, ugly or frightening as it may sometimes be, lies at the heart of our democratic process," Reinhardt wrote. "Private threats delivered one-on-one do not."
The ruling comes as the Web continues to be a haven for political activists to express their opinions. Legal experts said that although there is still plenty of room on the Web for a broad range of political views, there is a fine line between what constitutes freedom of speech and direct threats of violence.
"You can go a very, very long way in what you say before you get to the point of actually threatening violence upon a specific person or group of people," said Owen Seitel, a partner at the law firm Idell Berman & Seitel, which is not involved in the case. "But if people are going on posting online wanted posters and advocating the murder of specific individuals, providing their addresses, and so on and so forth, I think this case would be a precedent that would indicate that they lost their First Amendment rights."
Seitel said he expects the case will move up the legal hierarchy, reaching the Supreme Court, due to the fact that the ruling was a close vote and that the case is "such a crucial area of law."
The case was filed by four physicians, Planned Parenthood of the Columbia/Willamette, and the Portland Feminist Women's Health Center, which claimed that they were targeted with threats by the American Coalition of Life Activists (ACLA), Advocates for Life Ministries, and numerous individuals.
One of the issues in the case revolved around a list, called the "," which was a compilation of names of individuals that the ACLA anticipated one day might be put on trial for crimes against humanity, according to court reports. ACLA sent a hard copy of some of the "Nuremberg Files" to Neal Horsley, a non-party, to post on a Web site in January 1997. Approximately 200 people are listed under the label "Abortionists: the shooters." And 200 more are listed under the files for judges, politicians, law enforcement officials, spouses and abortion-rights supporters, according to court documents.
Three years ago, the site wasby Internet service providers. The federal court never ordered ISPs to shut down the Nuremberg Files, but two separate hosts did so after the site became the subject of criticism. Despite the shutdown, the site is currently up and running.
The Thomas More Law Center, which represents seven of the 16 defendants, said Friday it would seek U.S. Supreme Court review of the decision.
"The impact of (yesterday's) decision is that the speech of pro-lifers enjoys less First Amendment protection than does that of child pornographers utilizing computer-generated child pornography on the Internet," Richard Thompson, chief counsel of the Law Center, said in a statement.
Although the punitive damages have been remanded to a lower court, Planned Parenthood applauded the ruling.
"Our Constitution has never protected violence, nor has it protected speech used to place someone in fear of violence," Gloria Feldt, president of Planned Parenthood Federation of America, said in a statement. "This is victory for women and health care providers throughout the nation."