SAN FRANCISCO — A federal appeals court ruled yesterday that anti-abortion 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 punitive damages a jury awarded to four abortion doctors and two clinics who sued a dozen abortion foes.
The 6-5 ruling by the full appeals court reverses a March 2001 decision by a three-judge panel of the 9th Circuit 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 that if the three-judge panel’s ruling 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. During trial, targeted abortion doctors testified they used disguises, bodyguards and bulletproof vests, and instructed their children to crouch in the bathtub if they heard gunfire.
"I think it says for the abortion and non-abortion community, if you threaten to kill somebody, the law is not going to protect you," said Maria Vullo, an attorney for Planned Parenthood.
Planned Parenthood, an abortion provider, and the doctors were portrayed on Old West-style "wanted" posters passed out at rallies and featured on the Nuremberg Files, a Web site that 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.
Neal Horsley, the Carrollton, Ga., man who runs the Nuremberg Files Web site, said he will remain online.
"I'll add six bloody, baby-butchering judges to the Web site," he said in reference to the six judges who sided with the doctors.
Dozens of Internet service providers have dropped his site, but Horsley constantly shifts to new providers, some of them overseas and immune from a potential order from a federal judge to shut down.
However, Horsley isn't named in the suit decided yesterday. The defendants are a dozen individuals and anti-abortion groups accused of giving Horsley personal information about abortion providers.
Only as the case was headed for trial in 1999 did the doctors figure out Horsley was running the Web site. Adding him to the suit would have caused substantial delays, attorneys close to the case said.
On the Web site, Internet surfers can click an icon "to see the list of baby butcherers and a few of the people who have been killed." The site notes whether the doctors are "working," "wounded" or a "fatality."
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 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.
The activists maintained they collected data on doctors in hopes of one day putting them on trial, just as Nazi war criminals were at Nuremberg.
But appeals court Judge Pamela 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 Planned Parenthood v. American Coalition of Life Activists.
In dissent, Judge Alex Kozinski wrote that "the evidence in the record does not support a finding that defendants threatened plaintiffs."
The anti-abortion activists' attorney, Christopher Ferrara, said he would ask the U.S. Supreme Court to review the ruling, which he said "means that any poster that condemns an abortion doctor by name is a violation."
Defendant Andrew Burnett, the former publisher of Portland-based Life Advocate magazine that was shut down after the 1999 verdict, said he was disappointed with the court's decision.
"When you think about it from the perspective of people who want to take advantage of the freedom we have in this country to speak out against the status quo, this chills the ability to do that," he said.
Among the other defendants are 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.
During the trial, U.S. District Judge Robert Jones told jurors to consider the history of violence in the anti-abortion movement, including the slayings of Slepian and two other doctors whose names had appeared on the list.
The appeals court ordered Jones to reduce the $108.5 million in punitive damages the jury awarded to punish the defendants. The majority instructed Jones to consider the circuit's November 2001 decision in the Exxon Valdez case, in which the court said a $5 billion punitive damages verdict against the oil company was "excessive."
In that case, the 9th Circuit said that for every dollar in general damages a jury awards, the judge should allocate about $4 in punitive damages. In the abortion case, a jury awarded $12 million in general damages, but awarded $108.5 million in punitive damages.