A unanimous three-judge panel of the 9th Circuit Court of appeals ruled that a Web site and posters calling abortion doctors "baby butchers" and criminals is protected speech.
"If defendants threatened to commit violent acts, by working alone or with others, then their (works) could properly support the verdict," wrote Circuit Judge Alex Kozinski. "But if their (works) merely encouraged unrelated terrorists, then their words are protected by the First Amendment."
Two years ago, Planned Parenthood and four doctors sued a dozen anti-abortion activists under federal racketeering law and a 1994 federal law for inciting violence against them. A federal jury in Portland, Oregon agreed and ordered damages of $109 million to be paid.
The case had been regarded as a test of a recent Supreme Court ruling that said a threat must be explicit and likely to cause "imminent lawless action."
Anti-abortionists had displayed wanted-style posters depicting Planned Parenthood and the doctors as "baby butchers." They also posted a Web site called the "Nuremberg Files" listing the names and addresses of abortion providers, and assailed their crimes against humanity. The activists claimed the signs and web site were protected free speech under the First Amendment because they were only lists, not actual threats.
During the trial jurors were instructed to consider the history of violence in the anti-abortion movement. Three doctors were killed after their names appeared on the lists.
One was Dr. Barnett Slepian who was killed by a sniper at his home near Buffalo, N.Y. in 1998. His name was "crossed out" on the web site the same day.
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