Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists

dissenting:

This case is proof positive that hard cases make bad law, and that when the case is very hard — meaning that competing legal and moral imperatives pull with impressive strength in opposite directions — there is the distinct danger of making ve-ry bad law.

The majority opinion in this case suitably struggles with the difficult First Amendment issues before us concerning whether the posters and website at issue are or are not First Amendment protected speech. The legal standard the majority applies, however, is, in my view, insufficiently cognizant of underlying First Amendment values, for reasons that are largely explained in Judge Kozinski’s dissent, and for additional reasons that I develop below.

Moreover, the majority, in an offhand way, also decides two evidentiary issues that, I can say with some confidence, would not be decided so summarily, and would probably not be decided in the same way, were this a less wrenching case on its facts. Keeping one’s eyes on the broader picture is not always easy when people’s fives — in this case the fives of medical professionals — are being severely disrupted because they are performing constitutionally protected activities…

dissenting:

The majority writes a lengthy opinion in a vain effort to justify a crushing monetary judgment and a strict injunction against speech protected by the First Amendment. The apparent thoroughness of the opinion, addressing a variety of issues that are not in serious dispute, 1 masks the fact that the majority utterly fails to apply its own definition of a threat, and affirms the verdict and injunction when the evidence in the record does not support a finding that defendants threatened plaintiffs.

After meticulously canvassing the case-law, the majority correctly distills the following definition of a true threat: “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm, upon that person.” Maj. op. at 1076-77 (emphasis added). 2 The emphasized language is crucial, because it is not illegal — -and cannot be made so-merely to say things that would frighten.or intimidate the listener. For example, when a doctor says; “You have cancer and will die within six months,” it is not a threat, even' though…

dissenting:

I concur fully in both Judge Kozinski’s and Judge Berzon’s dissents. The differences between the majority and dissenting opinions with respect to the First Amendment are clear. I write separately to emphasize one point: the majority rejects the concept that speech made in a political forum on issues of public concern warrants heightened scrutiny. See Majority Op. at 1076. This rejection, if allowed to stand, would significantly weaken the First Amendment protections we now enjoy. It is a fundamental tenet of First Amendment jurisprudence that political speech in a public arena is different from purely private speech directed at an individual. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926-27 , 102 S.Ct. 3409 , 73 *1089 L.Ed.2d 1215 (1982); Watts v. United States, 394 U.S. 705, 708, 89 , S.Ct. 1399, 22 L.Ed.2d 664 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Terminiello v. City of Chicago, 337 U.S. 1, 4 , 69 S.Ct. 894 , 93 L.Ed. 1131 (1949). Political speech, ugly or frightening as it may sometimes be, lies at the heart of our democratic process. Private threats delivered one-on-one do not. The majority’s…

Opinion by Judge RYMER; Dissent by Judge REINHARDT; Dissent by Judge KOZINSKI; Dissent by Judge BERZON.

For the first time we construe what the Freedom of Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248 , means by “threat of force.” FACE gives aggrieved persons a right of action against whoever by “threat of force ... intentionally ... intimidates ... any person because that person is or has been ... providing reproductive health services.” 18 U.S.C. § 248 (a)(1) and (c)(1)(A). This requires that we define “threat of force” in a way that comports with the First Amendment, and it raises the question whether the conduct that occurred here falls within the category of unprotected speech.

Four physicians, Dr. Robert Crist, Dr. Warren M. Hern, Dr. Elizabeth Newhall, and Dr. James Newhall, and two health clinics that provide medical services to women including abortions, Planned Parenthood of the Columbia/Willamette, Inc. (PPCW) and the Portland Feminist Women’s Health Center (PFWHC), brought suit under FACE 1 claiming that they were targeted with threats by the American Coalition of Life Activists (ACLA), Advocates for Life Ministries (ALM), and numerous individuals. 2 Three…