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Originally published in Lifeline IX/1 (April 1999)

GUILTY OF CRIMES AGAINST HUMANITY:

Abortion was provided as a choice for East European and Jewish women by the (Nazi) National Socialist regime, and was prosecuted during the Nuremberg Trials (1945-1946) under Allied Control Order No. 10 as a “war crime”. ABORTIONIST ROBERT CRIST. Please write, leaflet, or picket his neighborhood to expose his blood guilt. Ask Crist to turn from killing and injuring women and children, to helping and healing those in need.

You have just witnessed a possible violation of RICO and FACE. Incredibly, a federal judge in Oregon has ruled that a flyer containing the above text, along with Crist’s address and a list of malpractice suits against him, constituted “a true threat to bodily harm, assault, or kill” Crist or one of his co-plaintiffs in Planned Parenthood of Columbia/Willamette, et al. v. American Coalition of Life Activists, et al. (No. 95-1671-JO, D. Or.) The judge also ruled that a flyer listing twelve other abortionists’ names and addresses, calling them the “Deadly Dozen,” was a “true threat” to harm them. The latter poster also offered a $5000 reward “for information leading to the arrest, conviction and revocation of license to practice medicine” of any of the listed abortionists.

In enjoining the defendants’ future dissemination, reproduction, or even possession of the posters, the judge was not deterred by the First Amendment. Without explanation or elaboration, he wrote: “I totally reject the defendants’ attempts to justify their actions [sic] as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from engaging in providing abortion services.” So there.

The judge, however, used a higher standard for his injunction than that he supplied to the jury which awarded damages against the fourteen defendants for their conspiracy in creating these threatening posters. The jury was instructed that it did not need to find that the defendants had actually intended to threaten the plaintiffs, only that a reasonable person would anticipate that the posters would be taken as threats. So instructed, and after three weeks of hearing testimony about bombings, shootings, arsons, etc. against abortion providers, none of which the plaintiffs even tried to link to the defendants, the jury awarded a staggering $107 million to the six plaintiffs. Most of this award was punitive damages. For example, one plaintiff was awarded $375 to compensate for extra security costs and $6,000,000 in punitive damages.

In addition to the posters, the court also found that a web site called the “Nuremberg Files” constituted a “true threat” to harm the plaintiffs. The web site consists of a list of names and addresses of abortionists, politicians, and others whose participation in abortion will some day, according to the site’s creator, render them accountable to a judicial tribunal. In what is generally conceded to be a serious lapse of good taste, the names of abortionists who had been shot had lines drawn through them or were shaded.

The site was not created or maintained by any of the defendants. Other than the fact that an employee of one of the organizational defendants provided some information about abortionists when the site first opened, none of the defendants had any connection with it. The judge even ruled that he had no jurisdiction over the site or its owner. Yet that did not stop the defendants from being held responsible for the site as part of their “conspiracy” to threaten abortionists.

The only way to conjure a threat out of this non-threatening speech was to argue that it had to be placed in the proper context. That context was the “climate of violence and terror” in which abortionists allegedly live. If there is so much violence taking place, why did the abortionists have to mention one act over 280 times in the course of the three-week trial? A handful of other incidents were brought up, collectively, hundreds of times. Hearsay and double hearsay was allowed as evidence of other incidents, even though there was no way the “threatened” plaintiffs could have known about these incidents.

Additionally, the defendants were grilled about their past statements, writings, and beliefs. However, the abortionists’ attorneys made no effort to show that their clients knew about any of these before the trial. The defendants hadn’t called or written the abortionists to share their thoughts with them.

Rather, the attorneys elicited evidence of the defendants’ bad thoughts about abortionists, and then used that to argue that any reasonable abortionist would feel threatened by people who think thoughts like this.

It should be noted that the theory of the case was not, as has been suggested in the media, that the pro-lifers’ speech might incite someone to violence against abortion providers. That theory was rejected by the court. Nor was the theory that graphic images or descriptions of abortion was likely to incite violence. Much as they undoubtedly would have liked to argue these points, the abortionists argued that the two posters and the web site were direct threats from the defendants to the plaintiffs (though the defendants never communicated with the plaintiffs.)

This case is a textbook example of what many First Amendment scholars have warned would happen if RICO was disconnected from its stated purpose of targeting organized crime. Instead of forcing racketeers to disgorge their ill-gotten gains, it is being used to financially destroy ideological opponents, simply because of their speech. The defense attorneys from the American Catholic Lawyers Association and the Legal Center for the Defense of Life are confident that this judgment will be overturned on appeal. After all, the Ninth Circuit’s not going to let the First Amendment be crippled, just to punish pro-lifers, right? —Katie Short