ACLU Confronts Tough First Amendment Issues In Oregon Abortion Threats Case

January 12, 1999 12:00 am

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Tuesday, January 12, 1999

PORTLAND, OR — In a closely watched case now on trial, the American Civil Liberties Union of Oregon is arguing that a jury should be allowed to decide whether certain types of speech by anti-choice extremists constitute “true threats” and are therefore not protected under the First Amendment.

“This case raises important and difficult issues,” said David Fidanque, Executive Director of the ACLU of Oregon. “On the one hand, the First Amendment may not be used as a shield by those who engage in acts of violence or issue threats of violence.

“On the other hand,” he added, “political speech is often harsh and mean-spirited. We must be very careful, therefore, in how we distinguish between protected political speech and what the Supreme Court has described as a ‘true threat,’ which is not protected by the Constitution.”

In its brief, the ACLU says that the jury in this case should be allowed to decide whether or not abortion providers were actually threatened. For this reason, among others, the ACLU opposed a pre-trial motion to have the case thrown out before it reached a jury.

At the same time, the ACLU’s brief urges the court to adopt a two-part test for defining “true threats,” saying that the jury must find both that a “reasonable person” who was the target of the alleged threat would be placed in fear, and that the speaker intended to create that fear.

But the court rejected this more stringent level of proof, instead adopting a looser standard that only requires that a reasonable speaker should have “foreseen” that his or her speech would place the average listener in fear.

Nevertheless, Fidanque said that the court still could ask the jury to decide in a “special verdict” whether the facts supported the stricter First Amendment standard. “If the facts show that the anti-choice groups intended to put abortion providers in fear for their personal safety,” he said, “then their actions were beyond the protection of the First Amendment.”

The case was filed by Planned Parenthood in 1995 against a coalition of anti-choice groups whose activities, the lawsuit charged, constituted actual threats to their clients’ lives and safety. One of the main defendants, American Coalition of Life Activists (ACLA), an extremist splinter group, and several of the individual defendants have stated that the murder of abortion providers is legally, morally and religiously justifiable.

In its complaint, Planned Parenthood alleged four different threats:

  1. A “Deadly Dozen” poster-size “wanted” list of abortion providers said to be “guilty of crimes against humanity,” including names, addresses and other personal information and offering cash rewards for “information leading to the arrest, conviction and revocation of license to practice medicine.”
  2. Six “wanted”-style “Guilty” posters specifically identifying doctors and clinics and their patients and promising cash rewards for anyone who can prevent abortions “through activities within ACLA guidelines.”
  3. A “Nuremberg Files” website with the names, photos, addresses and other personal information about certain abortion providers whom the creators of the site promise to bring to trial for “war crimes against humanity.”
  4. A bumper sticker that reads: “Execute Murderers Abortionists,” with the word “abortionists” appearing under the word “murderers.”

The ACLU argued, and the judge agreed, that everything except the bumper sticker should be presented to the jury.

Specifically, the ACLU noted that three other threatening statements could not be divorced from their context, and that the context in this case included a pattern of violence against abortion providers, some of whom were murdered after their names appeared on “wanted” posters. Under these circumstances, the ACLU said, it is appropriate for a jury to determine whether the challenged statements amount to threats that are unprotected under the First Amendment.

“The murder of Dr. Barnett Slepian is but the most recent example of the climate of violence surrounding physicians and clinics who provide abortion services,” Fidanque said.

“The ACLU has been closely monitoring the proceedings in this case,” he added, “to ensure that abortion providers are protected against unlawful threats and that the free speech rights of anti-choice activists are not violated.”

As the ACLU brief acknowledged, although First Amendment principles are easy to state, “this rule is not always so easy to apply.” But it is a challenge that the Constitution demands.

The case is Planned Parenthood v. American Coalition of Life Activists. The trial before Judge Robert E. Jones began on January 7th and is expected to conclude by the end of the month.

The ACLU friend-of-the-court brief was prepared by volunteer lawyers Michael H. Simon and Chin See Ming of the law firm Perkins Coie LLP in Oregon.

The ACLU of Oregon brief can be found at:

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