FRAP 29(c)(3)

The American Civil Liberties Union Foundation of Oregon, Inc. (the "ACLU") is a nonprofit, nonpartisan organization dedicated to the principles embodied in the Bill of Rights. Since its founding, the ACLU has been a zealous advocate of the First Amendment and has steadfastly opposed governmental suppression or proscription of free speech. This commitment to free speech has led the ACLU to defend numerous clients whose political ideologies are abhorrent to most members of the organization. We have done so, nonetheless, because we believe that civil liberties are indivisible, and that free speech rights cannot be granted to some and denied to others. In addition, the ACLU has long supported the constitutional right to abortion and has opposed attempts to diminish that right or otherwise interfere with the exercise of that right.

The ACLU argues in this amicus brief that the trial court erred in instructing the jury concerning the definition of a "true threat" by failing to require proof of a "specific intent to threaten." Nevertheless, there is no constitutional error requiring reversal because in another instruction, concerning plaintiffs' statutory claim under FACE, the jury was properly instructed on plaintiffs' need to prove a specific intent to intimidate, which the jury concluded had been established. In addition, because the trial court separately found that defendants had a specific intent to threaten, the error in the jury instructions has no bearing on the permanent injunction that was entered by the trial court.

STATEMENT OF FACTS⁽²⁾

Plaintiffs are operators of medical clinics and individual physicians who provide abortion as part of their medical practices. Defendants are anti-abortion organizations and individual anti-abortion activists and protesters. Following a period of violence, including murder, committed against physicians who provide abortion services, and following the appearance of "wanted"-style posters identifying several of the murder victims shortly before they were killed, defendants participated in the creation or distribution of two "wanted"-style posters that specifically identified several of the plaintiffs in this lawsuit. Defendants also participated in the creation or maintenance of an Internet site that specifically identified several plaintiffs.

The first poster, known as the "Deadly Dozen Poster," was received in evidence as Plaintiffs' Trial Exhibit 1. The second poster, known as the "Dr. Robert Crist Poster," was received in evidence as Plaintiffs' Trial Exhibit 5. The Internet site is known as the "Nuremberg Files." Copies of pages printed from the "Nuremberg Files Internet site" were received in evidence as Plaintiffs' Trial Exhibit 7.

Based upon these three specific communications (the "Deadly Dozen Poster," the "Dr. Robert Crist Poster," and the "Nuremberg Files Internet site"), plaintiffs alleged two claims against defendants. The first claim was brought under the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. ß 248. The second claim was brought under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ß 1962. At the core of these two claims is the allegation that these three communications, when viewed in their relevant factual context, all constituted "true threats" against the lives and physical safety of the plaintiffs and, therefore, are unprotected under the First Amendment.

Following a lengthy trial, during which plaintiffs introduced evidence of the factual context in which these communications were made and of the terrifying effect that they had on plaintiffs, the jury returned a verdict in favor of plaintiffs in the amount of approximately $107 million, mostly in punitive damages. After the verdict, the trial court entered a judgment consistent with the jury's award and also entered a permanent injunction against defendants. See Amended Order and Permanent Injunction dated March 16, 1999.

SUMMARY OF ARGUMENT

Civil liberties are indivisible. Free speech rights cannot be granted to some and denied to others. The First Amendment, however, does not protect a speaker who intentionally threatens another with death or serious bodily injury. Although easy to state, this rule is not always easy to apply. Its application is especially difficult where, as in this case, politically and emotionally charged issues are involved and the alleged "threat" is not explicit but may be inferred, if at all, only from the surrounding factual circumstances, or "context."

Whenever First Amendment rights are at stake, clear and understandable rules are often the only safeguard against the chilling effect of self-censorship that follows from imprecise and uncertain applications of ambiguous standards. If the line between protected and unprotected speech is unclear, a speaker is likely to refrain from engaging in protected speech in order to avoid the potentially serious adverse consequences of making a wrong decision. Such adverse consequences may include not only criminal punishment but also civil damage awards, including punitive damages.

When protected speech is chilled because of uncertainty about the dividing line between protected and unprotected speech, the benefits and protections of the First Amendment are diminished for everyone. On the other hand, "true threats" undeniably have a chilling effect on the exercise of constitutionally-protected activities and have no place in civil society. Reconciling these two principles is one of the most important challenges in this case.

Plaintiffs allege and both the judge and jury found that defendants' communications were unprotected threats of death or serious bodily harm.⁽³⁾ Defendants maintain that the challenged statements do not contain explicit threats and, therefore, are protected political speech for which defendants may not, constitutionally, be held liable. Plaintiffs respond by arguing that the context of the challenged statements demonstrates that defendants' statements were "true threats" and, hence, fall within an unprotected exception to the First Amendment.

The trial court correctly instructed the jury that "true threats are not protected by the First Amendment." Jury Instruction No. 8. In our view, however, the trial court erred by instructing the jury that a speaker who did not intend to threaten may still be held liable under the "true threats" exception to the First Amendment. Jury Instruction No. 10.

We recognize, of course, that the trial court's jury instruction defining "true threats" was derived from prior decisions of this Court. Unlike the trial court, however, we do not read those decisions as an unequivocal rejection of the subjective, or specific intent, standard in all circumstances. To the contrary, this Court has emphasized that the reasonable foreseeability test relied on by the trial court in its jury charge was primarily developed in cases that did not "involv[e] statements with a political message." United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990). See also United States v. Gilbert ("Gilbert I"), 813 F.2d 1523 (9^th Cir. 1987), cert. denied, 484 U.S. 860 (1987) (the Fair Housing Act's "requirement of intent to intimidate serves to insulate the statute from unconstitutional application to protected speech") (emphasis added). Thus, in light of Orozco-Santillan and Gilbert I, we believe it is far from certain that this Court has previously rejected a specific intent requirement for "true threats."

More importantly, we believe that specific intent is an essential component of any test that purports to distinguish between unprotected threats and protected speech. Accordingly, we believe that the constitutionally appropriate definition of a true threat embodies two elements: First, would a reasonable listener have understood the speaker's words as expressing an intent to inflict or cause serious harm; second, did the speaker intend to place the listener in fear, regardless of whether the speaker in fact intended to carry out the threat. In addition, while we are particularly concerned about the application of the "true threats" doctrine to political speech cases, we do not think that this definition is limited to such cases. Our worry, more broadly, is that a "negligence" standard will lead to self-censorship by speakers who must necessarily guess about where the constitutional lines will ultimately be drawn. For that reason, the Supreme Court has often imposed a scienter requirement in free speech cases ranging from New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed. 2d 686 (1964) (defamation of public officials) to United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L. Ed. 2d 372 (1994) (violation of obscenity law).

Here, as elsewhere, the determination of subjective intent will often turn on "content, form, and context." See Rankin v. McPherson, 483 U.S. 378, 385, 107 S.Ct. 2891, 2897, 97 L. Ed. 2d 315 (1987) (relying on content, form, and context to determine if public employee's speech involves matters of public concern). Thus, it is appropriate to ask: "What was said? To whom was it said? Where was it said? How, or under what circumstances, was it said?" At the same time, the search for context must itself respect relevant First Amendment limits designed to ensure that a defendant's unpopular views are not themselves the basis for imposing liability.

This Court can and should correct the trial court's erroneous instruction regarding the definition of a true threat and, to the extent necessary, clarify any ambiguity in this Court's prior holdings. Despite the erroneous instruction, however, we believe that the jury's verdict can and should be affirmed. This is so because the trial court appropriately included a "specific intent" instruction in describing the substantive elements of a violation of the FACE statute and because the jury found defendants liable for violating that statute. Thus, this is not a case where we must guess what the jury would have found given a proper instruction. Rather, this is a case where the jury in fact found that defendants had acted with threatening intent, albeit in response to another portion of the trial court's charge. Nothing in the First Amendment or common sense suggests that the jury's actual findings should be ignored.

Finally, the trial court's order granting permanent injunctive relief was constitutionally proper because it rests on a specific and independent finding by the trial court that the defendants acted with a specific intent to threaten.

ARGUMENT

I. The Trial Court Erred In Defining A "True Threat" By Instructing The Jury That A Speaker Who Did Not Intend To Threaten May Still Be Held Liable Under The "True Threat" Exception To The First Amendment.

A. This Court's precedent should be clarified to provide that a "true threat" requires proof of a specific intent to threaten.

1. The jury instructions did not require proof of a specific intent to threaten.

In Jury Instruction No. 8, the trial court told the jury that "true threats are not protected by the First Amendment." That is a correct statement of the law. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L. Ed. 2d 664 (1969). The trial court went on to explain how to distinguish a "true threat" from protected speech. Here, the trial court erred.

In Jury Instruction No. 10, the trial court instructed, in part:

A statement is a "true threat" when a reasonable person making the statement would foresee that the statement would be interpreted by those to whom it is communicated as a serious expression of an intent to bodily harm or assault. This is an objective standard - that of a reasonable person. Defendants' subjective intent or motive is not the standard that you must apply in this case. In other words, even if you believe that the defendants did not intend the statements to be threatening, you must still find those statements to be threats if you conclude that a reasonable person would have foreseen that those statements, in their entire factual context, would have been interpreted as statements of an intent to bodily harm or assault.

Excerpt from Jury Instruction No. 10 (emphasis added).

In this instruction, the trial court also told the jury that it "should consider the total context and circumstances under which the statements were made." The trial court then added that this "context also includes evidence of the defendants' motives or intent in creating, preparing or disseminating the statements at issue." Id. Later in this same instruction, however, the trial court told the jury: "Nor must you find that any of the defendants actually intended to threaten plaintiffs, so long as you find that a reasonable person would have foreseen that it would be understood to be threatening." Id.

Similar instructions were also read to the jury in Jury Instruction No. 10a. In that instruction, the trial court told the jury:

In deciding whether the statements are true threats, you may consider the evidence of what the defendants were thinking or what their motives were as part of the context you may consider in deciding what a reasonable person would foresee. This does not change the test of "true threat," as I have just instructed you: You must decide only whether a reasonable person, in the context in which the statement was made, would foresee that the person to whom the statement was communicated would interpret it to be a serious expression of an intent to inflict bodily harm or assault. In other words, the test is not the subjective view of the defendants, but the objective view of a reasonable person.

Excerpt from Jury Instruction No. 10a (emphasis added).

In giving these jury instructions that distinguished an unprotected "true threat" from protected speech, the trial court rejected the proposed instruction offered by the ACLU, as amicus below. The ACLU's proposed jury instruction called for a two-part test to determine when speech is a "true threat:"

[T]he free speech clause of the First Amendment does not protect statements that are "true threats." A statement made by a person constitutes a "true threat" when:

First, a person makes a statement that, in context, a reasonable listener would interpret as communicating a serious expression of an intent to inflict or cause serious harm on or to the listener; and

Second, the speaker intended that the communication be taken as a threat that would serve to place the listener in fear for his or her personal safety, regardless of whether the speaker actually intended to carry out the threat.

Excerpt from ACLU Proposed Jury Instruction No. 3a.⁽⁴⁾ Thus, the second part of the ACLU's proposed test would have required proof of a specific intent to threaten.

2. A specific intent requirement is necessary to avoid the chilling effect that would be created by a negligence standard for a "true threat."

In Watts, the Supreme Court upheld the constitutionality of a federal statute forbidding threats against the life of the President, but reversed a conviction under that statute on First Amendment grounds. The Court held that the government failed to show a "true threat," as distinguished from political hyperbole or other protected speech. Watts, 394 U.S. at 708, 89 S.Ct. 1399 at 1401-1402.

Although the Supreme Court has relied upon its 1969 decision in Watts in several later cases, it has not yet offered any extended analysis of the "true threats" doctrine. See, e.g., Madsen v. Women's Health Center, Inc., 512 U.S. 753, 773-74, 114 S.Ct. 2516, 2529, 129 L.Ed. 2d 593 (1994) ("threats to patients or their families, however communicated, are proscribable under the First Amendment," as is speech that "is so infused with violence as to be indistinguishable from a threat of physical harm") (citation omitted); R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L. Ed. 2d 305 (1992) ("threats of violence are outside the First Amendment . . . [in order to protect] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur"); NAACP v. Claiborne Hardware, 458 U.S. 886, 926, 102 S.Ct. 3409, 3432, 73 L.Ed. 2d 1215 (1982) (individuals "engaged in violence or threats of violence . . . may be held responsible for the injuries that they cause[]"). Instead, the development of the "true threats" doctrine has been left primarily to the federal courts of appeal.

In prior decisions, this Court has utilized what some refer to as "an objective, speaker-based test." According to the Ninth Circuit, to distinguish a "true threat" from otherwise protected speech under the First Amendment, one must ask:

"whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990). Furthermore, "[a]lleged threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners." Id.

Lovell v. Poway Unified School District, 90 F.3d 367, 372 (9th Cir. 1996), cert. dismissed pursuant to Supreme Court Rule 46, 518 U.S. 1048, 117 S.Ct. 27 (1996) (citations omitted).⁽⁵⁾

In a case alleging a "true threat," the risk is substantial that a speaker who did not intend to threaten, but merely intended to engage in protected political speech, could be criminally sanctioned or held civilly liable for damages, including punitive damages.⁽⁶⁾ Because of that risk and the danger to the First Amendment that it poses, a subjective, speaker-based test, i.e. a test requiring proof of a specific intent to threaten, should also be required. Such a test would require an instruction that informs the jury that the plaintiff must produce evidence, albeit circumstantial or inferential in many cases, that the speaker actually intended to induce fear, intimidation, or terror; namely, that the speaker specifically intended to threaten. If a person did not intend to threaten or intimidate (i.e. did not intend that his or her statement be understood as a threat), then the speech should not be considered to be a "true threat," unprotected under the First Amendment.

This subjective, speaker-based test asks whether the defendant intended that his or her statement be understood as a threat, not whether the defendant intended to carry out his threat. The point of such a specific intent test is to require proof that a defendant intentionally and seriously, rather than negligently, inadvertently, or jokingly uttered a "threat."

As Watts demonstrates, the context of a challenged statement is critical in determining whether that statement is a "true threat." Thus, context is relevant in every "threats" case. Some of the contextual factors that courts have looked to include: whether the challenged statement has expressly threatening language; whether it contains a "political message;" whether the statement is targeted against specific, identified individuals or organizations; the time and manner of the communication; and the reasonable reaction of a listener to whom the threat is allegedly directed. Sometimes, as in Watts, context may show that a statement with expressly threatening language is not, in fact, a "true threat." In other cases, context may transform a statement lacking expressly threatening language into a "true threat." See n. 5, supra.

An inquiry into context is thus essential, but also potentially raises its own troublesome First Amendment issues. In particular, care must be taken to ensure that defendants in "true threats" cases are not punished for unpopular but protected activities or expression that are put before the jury under the rubric of context. See Laurence Tribe, American Constitutional Law (2d ed. 1988), ß 12-9, at 848 n. 56 (expressing similar concerns). Specific intent is not, however, merely one of the contextual factors to be considered by the fact finder, which is how the trial court instructed the jury in this case. See Jury Instruction No. 10a, excerpted supra.

The clearest articulation of the need for an independent requirement of specific intent, or for a "subjective test," is contained in the concurring opinion of Justice Marshall in Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L. Ed. 2d 1 (1975). The defendant in Rogers was convicted of knowingly and willfully making oral threats to take the life of or to inflict bodily harm upon the President of the United States. The Supreme Court reversed that conviction on grounds unrelated to the First Amendment.

In his concurrence, Justice Marshall, joined by Justice Douglas, noted that the district court and the court of appeals adopted an "objective" construction of the statute prohibiting threats against the President. Justice Marshall observed that the Supreme Court in Watts expressed "grave doubts" about the correctness of the so-called "objective" standard. Rogers, 422 U.S. at 43, 95 S.Ct. at 2096, citing Watts, 394 U.S. at 707-708, 89 S.Ct. at 1401 (Marshall, J., concurring). According to Justice Marshall:

the objective interpretation embodies a negligence standard, charging the defendant with responsibility for the effect of his statements on his listeners. . . . we should be particularly wary of adopting such a standard for a statute that regulates pure speech. . . .

If [the statute] has any deterrent effect, that effect is likely to work only as to statements intended to convey a threat. . . .

I would therefore interpret [the statute] to require proof that the speaker intended his statement to be taken as a threat, even if he had no intention of actually carrying it out.

Rogers, 422 U.S. at 47-48, 95 S.Ct. at 2098-2099 (Marshall, J., concurring).

In addition, requiring proof of a specific intent to threaten before a statement may be found to be a "true threat" is entirely consistent with the line of First Amendment authority that led to the adoption of the "true threat" doctrine in Watts. In 1969, Brandenburg and Watts were both decided per curiam by the Supreme Court. Brandenburg has long been understood as the contemporary refinement of the classic "clear and present danger" test. But, as one respected treatise has observed, "[t]races of a modified 'clear and present danger' analysis are also evident in Watts v. United States." Ronald D. Rotunda and John E. Nowak, 4 Treatise on Constitutional Law (3^rd ed. 1999) ß 20.15, at 309.

Thus, while Watts and Brandenburg reflect different constitutional concerns, they also share a common constitutional heritage.⁽⁷⁾