A federal appeals court, reversing its own decision, ruled Thursday that anti-abortion rights activists who created Wild West-style posters and a Web site targeting abortion doctors are liable because their works were illegal threats and not free speech.
But the sharply divided 9th U.S. Circuit Court of Appeals, while calling the works "a true threat," ordered a Portland, Ore., federal judge to reduce the $107 million in damages a jury awarded to four abortion doctors and two clinics who sued a dozen abortion foes.
The 6-5 ruling Thursday reverses the court's March 2001 decision in the case and upholds a 1994 federal law that makes it illegal to incite violence and threaten abortion doctors.
Many members of Congress and others had said if the court's original ruling of last year had stood, the Freedom of Access to Clinic Entrances Act would have been gutted.
Four doctors testified they feared for their lives, and sued under racketeering laws and the 1994 law that makes it illegal to incite violence against abortion doctors.
Planned Parenthood, an abortion provider, and the doctors were portrayed 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.
A federal judge and the Portland jury found in 1999 that the Web site and some of the posters were "true threats to kill" because the abortion doctors were being tormented and three of them murdered. Once killed, their names were crossed off the list on the Web site.
The name of Dr. Barnett Slepian was crossed out on the site shortly after he was killed by a sniper at his home near Buffalo, N.Y., in 1998.
The anti-abortion rights activists, under a group named American Coalition of Life Activists, or ACLA, had argued the posters were protected under the First Amendment because they were merely a list of doctors and clinics — not a threat.
They maintained they collected data on doctors in hopes of one day putting them on trial, just as Nazi war criminals were at Nuremberg.
The appeals court on Thursday, however, disagreed.
Judge Pamela Ann Rymer wrote that there was substantial evidence the posters were disseminated to intimidate physicians from giving abortions in violation of the 1994 act.
"Holding ACLA accountable for this conduct does not impinge on legitimate protest or advocacy," Rymer wrote.
In dissent, Judge Alex Kozinski wrote that "the evidence in the record does not support a finding that defendants threatened plaintiffs."
Among the defendants was Michael Bray of Bowie, Md., author of a book that justifies killing doctors to stop abortions. Bray went to prison from 1985 to 1989 for his role in arson attacks and bombings of seven clinics.
The case was widely seen as a test of a Supreme Court ruling that said a threat must be explicit and likely to cause "imminent lawless action."
During the trial, U.S. District Judge Robert Jones had told the jury the posters and Web site should be considered threats if they could be taken as such by a "reasonable person." Jones also had instructed the jury to consider the history of violence in the anti-abortion rights movement, including the slayings of Slepian and two other doctors whose names had appeared on the list.
After the jury's verdict in 1999, the judge called the Web site and wanted posters "blatant and illegal communication of true threats to kill."
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