A federal appeals court threw out a record $109 million verdict against anti-abortion rights activists today, ruling that a Web site and wanted posters branding abortion doctors "baby butchers" and criminals is protected by the First Amendment.
A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously said the producers of the material could be held liable only if they authorized, ratified or directly threatened violence.
"If defendants threatened to commit violent acts, by working alone or with others, then their [works] could properly support the verdict," Cricuit Judge Alex Kozinski wrote. "But if their [works] merely encouraged unrelated terrorists, then their words are protected by the First Amendment."
The ruling came two years after a federal jury in Portland, Ore., ordered a dozen abortion rights foes to pay damages to Planned Parenthood and four doctors who sued under federal racketeering law and the 1994 federal law that makes it illegal to incite violence against abortion doctors.
The case has been widely viewed as a test of a recent Supreme Court ruling that said a threat must be explicit and likely to cause "imminent lawless action."
Merely a List ... Or a Direct Threat?
The anti-abortion rights activists said the posters and Web site were protected under the First Amendment because they were merely a list of doctors and clinics — not a threat.
Planned Parenthood and the doctors were portrayed in Old West-style wanted posters as "baby butchers," and a Web site called the "Nuremberg Files" listed the names and addresses of abortion providers and declared them guilty of crimes against humanity.
During the trial, U.S. District Judge Robert Jones instructed the jury to consider the history of violence in the anti-abortion rights movement, including three doctors killed after their names appeared on the lists.
One was Dr. Barnett Slepian, who was killed by a sniper in 1998 at his home near Buffalo, N.Y. Slepian's name was crossed out on "The Nuremberg Files" Web site later that same day.