A controversial anti-abortion Web site and posters are constitutionally protected free speech, a federal appeals court ruled Wednesday.
The 9th U.S. Circuit Court of Appeals overturned a record $109 million verdict by a Portland, Ore., jury that two years ago found the literature produced by anti-abortion activists was threatening and unprotected in a case testing the limits of First Amendment speech.
The site and posters listed the names of doctors who perform abortions, declaring them guilty of crimes against humanity and calling them "baby butchers."
The San Francisco-based appeals court said the literature's producers only could be liable 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," Judge Alex Kozinski wrote for the three-member appeals panel. "But if their [works] merely encouraged unrelated terrorists, then their words are protected by the First Amendment."
The case has been widely viewed as a test of a recent U.S. Supreme Court ruling that said a threat must be explicit and likely to cause "imminent lawless action."
The dozen anti-abortion activists say the posters and Web site were free speech protected under the First Amendment, because it was merely a list of doctors and clinics — not a threat. Critics of the site and posters pointed out that Planned Parenthood and the doctors were portrayed in Old West-style wanted posters as "baby butchers" and a Web site called the "Nuremberg Files," first appearing in 1997, listed the names and addresses of abortion providers.
During a federal trial in Portland, U.S. District Judge Robert Jones instructed the jury to consider the history of violence in the anti-abortion movement, including three doctors killed after their names appeared on the lists.
One was Dr. Barnett Slepian, who was gunned down by sniper fire in October 1998 at his home near Buffalo, N.Y. Slepian's name was crossed out on "The Nuremberg Files" Web site later that same day.
In 1995, Planned Parenthood and four doctors sued the anti-abortion activists under federal racketeering statutes and the 1994 Freedom of Access to Clinic Entrances Act, which makes it illegal to incite violence against abortion doctors and their patients.
Jones told the jury the posters and Web site were not free speech if a "reasonable person" could see them as threats. But a number of legal experts have criticized the February 1999 jury verdict and those instructions, saying a threat must be explicit.
The Georgia computer programmer who ran the site was not a defendant in the lawsuit. But his Internet provider pulled the plug on the site after the verdict.
Among the anti-abortion activists who appealed the jury's verdict is Michael Bray of Bowie, Md., who served time in federal prison from 1985 to 1989 for his role in arson attacks and bombings of seven clinics.
Also appealing were two anti-abortion activists from Portland: Andrew Burnett, publisher of Life Advocate magazine, and Cathy Ramey, an editor at the magazine.
— The Associated Press contributed to this report