In a rarely used process, the U.S. Supreme Court has invited the solicitor general to file a brief expressing the opinion of the Bush administration in a major case involving the free speech rights of pro-life activists.
The case has been reported by court watchers as one of four major cases to be considered for review this term. Earlier this month, the New York Times described the Oregon case as “an important
First Amendment case that asks the court to examine the boundary between provocative but legitimate advocacy and unprotected threats and intimidation” against abortion providers.
In 1995, Planned Parenthood, Portland Feminist Women’s Health Center, and four physicians filed a lawsuit in federal court in Portland claiming that activities by a group of 14 anti-abortion protesters violated the federal Freedom of Access to Clinic Entrances Act of 1994.
The suit claimed that protesters’ Wild West-style “wanted” posters listing the names and addresses of the plaintiffs under the heading: “Guilty of Crimes Against Humanity” amounted to threats.
The posters did not make specific threats. The “wanted” poster technique has been widely used by activists – from opponents of the Vietnam War to environmentalists – without sparking lawsuits.
At the 1999 trial, the plaintiffs pointed out that several physicians who had appeared on similar posters were killed and that, given this context of violence, the appearances on the posters were meant as a threat.
The defendants argued that the posters and the website did not explicitly threaten violence and so were protected political speech.
The Thomas More Law Center, a national, public interest law firm based in Ann Arbor, Michigan, represents seven of the 14 pro-life defendants.
“This is a pure free speech case. None of the posters used by our clients contained threats, and no doctor listed on any of the posters was ever harmed,” said the center’s associate counsel Edward White.
The jury disagreed and awarded a $109 million verdict against the protesters.
Last year, a three-judge panel of the 9th U.S. Circuit Court of Appeal overturned the verdict, ruling anti-abortion activists could be held liable only if they specifically directed others to commit acts of violence.
“Political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party,” Judge Alex Kozinski wrote for the panel.
But after rehearing the case earlier this year, the full court reversed itself and restored the verdict.
Observers say the case, now before the U.S. Supreme Court, tests the boundaries for political speech under the First Amendment.