Constitutional Law
Jun. 20, 2002
Targeting Speech
Forum Column - By Erwin Chemerinsky Although the First Amendment provides broad protection for the right to express ideas, it does not safeguard threats. There is no constitutional protection for threatening another person and causing the individual to fear for his or her safety.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Although the First Amendment provides broad protection for the right to express ideas, it does not safeguard threats. There is no constitutional protection for threatening another person and causing the individual to fear for his or her safety. The 9th U.S. Circuit Court of Appeals, in a 6-5 en banc ruling, applied this principle in Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 2002 WL 992667 (9th Cir. May 16, 2002).
The 9th Circuit's ruling is an important victory for those who work at reproductive health clinics and have been targeted by extremist anti-abortion groups.
The case was a civil suit brought by four doctors and two clinics that provide medical services to women, including abortions. The claim was based on the federal Freedom of Access to Clinics Entrances Act, 18 U.S.C. Section 248, which creates a cause of action against whoever by "threat of force ... intentionally ... intimidates ... any person because that person is or has been ... providing reproductive health services."
The defendants in the action were anti-abortion groups, including the American Coalition of Life Activists and the Advocates for Life Ministries, that endorse violence against clinics and doctors providing abortions.
The defendants circulated posters saying that the plaintiffs were "guilty" of crimes against humanity and including the plaintiffs' names, addresses and pictures. Also, the defendants maintained a Web site, "The Nuremberg Files," which listed the plaintiffs and others that the defendants wanted put on trial for "crimes against humanity." Lines were drawn through the names of doctors who had been killed.
The "guilty" posters followed another series of "wanted" posters that had identified other doctors who performed abortions before they were murdered by anti-abortion extremists. For example, in March 1993, Dr. David Gunn was killed as he entered an abortion clinic in Pensacola, Fla. Before that, he had been featured on a "wanted" poster. In August 1993, Dr. George Patterson, and in July 1994, Dr. John Bayard Britton were murdered after being listed on posters.
Although many in Operation Rescue condemned such violence, the American Coalition of Life Activists and the Advocates for Life Ministries broke off to espouse a "pro-force" point of view.
A jury found in favor of the plaintiffs. The District Court had instructed the jury that a threat exists when "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." Planned Parenthood of the Columbia/Willamette Inc. v. ACLA, 23 F. Supp.2d 1182 (D. Ore. 1998). The 9th Circuit reversed, Planned Parenthood of the Columbia/Willamette Inc. v. ACLA, 244 F.3d 1007 (9th Cir.), reh'g en banc granted, 268 F.3d 908 (9th Cir. 2001).
The 9th Circuit, in an opinion by Judge Alex Kozinski, held that a threat is unprotected by the First Amendment only if the speaker is the only one likely to carry out the violence. In a 6-5 en banc decision, the 9th Circuit reversed the panel decision and affirmed the District Court's decision, although the case was remanded for reconsideration of the punitive damages award.
The 9th Circuit properly found that the defendants' conduct, in the context of prior posters and murders, was "a true threat and is not protected speech."
The 9th Circuit's decision rested on three principles clearly established by prior rulings. First, there is no First Amendment protection for a "true" threat. See United States v. Watts, 394 U.S. 705 (1969); Madsen v. Women's Health Center Inc., 512 U.S. 753 (1994).
There is no First Amendment protection of speech where a reasonable person would foresee that the listener will believe that he will be subjected to physical violence. United States v. Orozco-Santillian, 903 F.2d 1262 (9th Cir. 1990). The First Amendment protects political hyperbole but not true threats.
Second, an objective standard governs whether a particular statement may properly be considered to be a true threat: whether a reasonable person would foresee that the statement would be interpreted by those to whom the threat is directed as a serious expression of intent to harm or assault. Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996); Orozco-Santillian.
Alleged threats are considered "in light of their entire factual context, including the surrounding events and reaction of the listeners." Orozco-Santillian. "The fact that a threat is subtle does not make it less of a threat." United States v. Gilbert, 884 F.2d 454 (9th Cir. 1989).
Third, whether language is a true threat is a proper question for the jury in light of the totality of the circumstances. Gilbert; Melguin v. Hames, 38 F.3d 1478 (9th Cir. 1994).
The 9th Circuit emphasized that "[i]t is not necessary that the defendant intended to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat."
The dissent, by Kozinski, argued that the test should be changed to require that the speaker actually intend to carry out the threat or be in control of those who will. The majority, however, wisely rejected such a change in the law.
No prior 9th Circuit ruling - in fact, no decision from any court - ever has held that true threats are protected by the First Amendment unless the speaker would be the person likely to do the actual violent acts. Whether the speaker or someone else would commit the act of violence should be irrelevant in the First Amendment analysis.
For example, when a criminal defense attorney tells a prosecution witness that his life will be in danger if he testifies, courts have found this a threat even though the defense attorney would not be the one to commit the act of violence. See United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987).
The 9th Circuit's ruling was thus correct in affirming the District Court and the jury's verdict. The First Amendment protects the right of people to speak in angry, even threatening, tones but does not safeguard a right of speakers to cause people reasonably and foreseeably to fear for their safety.
No one ever has questioned that assaults - words and acts that cause people to reasonably fear for their safety - are outside the First Amendment. Likewise, "true threats" are not accorded constitutional protection because of the manner in which they interfere with people's lives and activities, to say nothing of the emotional and mental distress that they inflict.
According to the Feminist Majority Foundation's National Clinic Violence Survey, in 2000, one in five abortion clinics reported suffering severe violence, such as blockades, invasions, bombings, arsons, chemical attacks, stalking, gunfire, physical assaults and threats of death, bombs or arson.
Since 1977, eight abortion providers or staff have been murdered. Countless others have received direct threats. From 1982 to 2000, according to the Bureau of Alcohol, Tobacco and Firearms, there have been 224 arsons or bombings of clinics. California led the nation in clinic arsons and bombings from 1982 to 2000 with 30.
As would be expected, the staggering amount of violence and harassment faced by clinic workers decreases access for women seeking reproductive health care. After the murder of Dr. Barnett Slepian in New York, 10 percent of clinics surveyed by the Feminist Majority Foundation found that a physician or other staff member had quit because of anti-abortion violence, harassment or intimidation.
A year later, 5 percent of those surveyed reported losing staff or doctors because of anti-abortion terrorist tactics. According to the Alan Guttmacher Institute, in 1996, 86 percent of the counties in the United States had no abortion providers, and 95 percent of the nonmetropolitan counties had no abortion providers. The same survey found that 36 percent of California counties had no abortion providers.
The defendants in the 9th Circuit case were not engaged in political expression against abortion; that, of course, is protected by the First Amendment. As the jury found, they made threats that caused people to fear for their safety. That can and should be the basis for liability.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at USC Law School. Chemerinsky wrote an amicus curiae brief in Planned Parenthood on behalf of the Anti-Defamation League, the American Jewish Committee, Hadassah and the Women's Zionist Organization of America Inc.
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