nuremberg files

Planned Parenthood of Columbia/Williamette versus American Coalition of Life Activist:

Abortion versus Speech, who should win and why.
by Rob Vara (1)

[reproduced with kind permission of the author]

I. Introduction

NEVER IN THE HISTORY of humankind has information been as accessible as today. The last ten years have seen the Internet move out of the hands of so few and into the hands of so many. (2) The result has been the rapid dissemination of material, spanning across geographic, political and idealistic boundaries. Many have derived great benefit from this. Those benefits however have not come without a price. The Internet is beginning to show some adolescent growing pains while being drawn into several legal controversies. (3) The recent case of Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists (4) is yet another example of Internet generated conflict. Planned Parenthood involves an action commenced by several pro-choice plaintiffs (5) pursuant to the Freedom of Access to Clinics Entrances Act (FACE). (6) The plaintiffs alleged that the defendants, representing anti-choice (7) groups had posted information about abortion providers on a web site called the "Nuremberg Files" (8) and created and displayed "Deadly Dozen" Posters. (9) The Plaintiffs alleged that these constituted "true threats" proscribed by FACE. The Defendants have claimed first amendment protection and argue that this information was not intended as a "true threat" but was simply a method of creating and maintaining "dossiers on abortionists in anticipation that one day we may be able to hold them on trial for crimes against humanity". (10) The jury returned a verdict against the defendants for $107 million dollars (11) finding that the "Nuremberg Files" was indeed an actual "true threat". The United States District Court of Oregon subsequently issued a permanent injunction, which in part forbade the defendants from contributing any further information to the "Nuremberg Files". (12)

This case provides a paradigm for analysis of the competing interests juxtaposed by the existence and use of the Internet. Those interests stated simply are access to the fundamental right of abortion as decided in Roe v Wade, (13) versus the right to protected speech, established by the First Amendment.

This paper will move along the following path. Part II will outline the constitutional right of privacy, which is the foundation for the decision of Roe. This is necessary to determine if the right to abortion is still a fundamental right in the wake of Planned Parenthood v. Casey. (14) Part II will conclude that a women's right to abortion remains a fundamental right even after Casey. (15) Determining whether abortion remains a fundamental right or not is important since part IV of the paper will discuss the possibility that congress may proscribe speech that unduly burdens access to a fundamental right. Part III will discuss the Supreme Court's current articulation of the bounds of the First Amendment including what constitutes a "true threat". This section will review "true threats" standard in various United States Circuits, and will compare and contrast those standards. The Fourth part will discuss the conflict between the two fundamental rights. I will critically analyze why the decision in the present case was wrong. The section will then evaluate whether the interpretation of FACE can be construed under a strict scrutiny analysis and indeed proscribe speech that would otherwise be protected.

At the outset, it is imperative that the reader stays focused on what is at stake. The Plaintiffs entire cause of action is based on FACE. It is the line of cases Eisenstad to Griswald to Roe, which create the basis for the enactment of FACE since the statute furthers the interest of the United States in ensuring that women have access to a fundamental right. The defendants have one defense under the current interpretation of FACE, that the speech is not a "true threat", therefore liability cannot attach.

It is important to remember that this case did not arise because of the First Amendment. It came to the District Court because of the sharp disagreement between two diametrically opposite points of view. As is often the case, the First Amendment has found its way into the case by way of defense only.

II. Penumbras and Privacy, from Griswold to Eisenstadt to Roe
A brief History of the Implied Fundamental Right to Abortion.

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its self-incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (16)

An understanding of Roe is important in this case for one reason. We need to determine if a women's right to abortion as originally established in Roe remains a fundamental right in the aftermath of Planned Parenthood v. Casey. (17) If it is, then congress may have a compelling interest in passing FACE to ensure that women have access to that fundamental right without undue burden. Certain types of speech that would otherwise be protected, if permitted might create just such a burden. Therefore, two fundamental rights would be squarely placed in conflict. If abortion is not a fundamental right, then the governmental interest would amount to securing access to something less than a constitutional right, and as such, might not be squarely placed on the same level as the right to protected speech.

a. Griswold and Justice Black's Fears for the Future

The constitutional foundation of Roe is based on the Griswold and Eisenstadt (18) line of Cases. Griswold involved a Connecticut Statue, which prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception". (19) The Supreme Court found that

"specific guarantees in the Bill of Rights have penumbras formed by emanation from those guarantees that help give them life and substance... [and that] [v]arious guarantees create zones of privacy... The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms". (20)

Griswold has had its share of critics (21) including the famous dissent by Justice Black, who essentially argued that the United States Constitution is one of specific provisions not implicit ones. In his Griswold dissent Justice Black wrote: "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision". (22) Justice Black made clear at the outset that he was more disturbed with the aftermath of the decision then the decision itself and that such a decision created serious separation of powers issues and was an improper inroad by the Judiciary into the exclusive power of congress to legislate. Perhaps the most persuasive argument by Justice Black was as follows:

"I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law." (23)

Admittedly, Justice Black's position is attractive at least from the point of view that if seeks to cabin and place manageable limitations on what rights are fundamental and not. However, his opinion was not the majority opinion and thus the concept of implied fundamental rights was firmly planted in Supreme Court jurisprudence. So what does Griswold teach us? Quite simply, this. Just because the words creating a constitutional right are not expressly in the constitution, does not mean that such a right does not exist.

b. Eisenstadt and Equal Protection

The explicit holding of Griswold was extended to unmarried couples by the Supreme Court in Eisenstadt. In that case, there was a Massachusetts law prohibiting the distribution of any drug or device intended for the prevention of conception, to any unmarried persons. Such a statute in light of the facially disparate treatment of married and unmarried persons could not withstand equal protection scrutiny and was struck by the Court. The analysis in Eisenstadt turned entirely on equal protection grounds as evidenced by the majority's statement:

Of course the operative language in that excerpt is "whatever the rights of the individual to access to contraceptives may be" and "If under Griswold the distribution of contraceptives to married persons cannot be prohibited". To some extent Eisenstadt merely states that regardless of whether Griswold was correct or not, the state cannot treat married people different than unmarried. The effect however, was to thrust the core holding of Griswold out of the special protection afforded to married people over to all people regardless of marital status.

c. Roe v. Wade(25)

There has been much discussion about the controversial opinion by Justice Blackmun. Indeed the extent of that dialogue is easily evidenced by performing an Internet search on the title. (26) The facts of Roe are simply stated. A Texas Statute made procuring an abortion a crime except by medical advice for the purposes of saving the mothers life. Jane Roe, a pregnant unmarried woman alleged that she wanted to terminate her pregnancy and sought a declaratory judgment that the Texas statute was facially unconstitutional and for an injunction restraining the State from enforcing the statute. Roe alleged in her complaint that the statute was unconstitutional since it "abridged her right of personal privacy protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments." (27). Justice Blackmun begins the analysis by accepting that:

"[t]he constitution does not explicitly mention any right of privacy. In a line of decisions, however ... the court has recognized that right of personal privacy, or guarantee of certain areas or zones of privacy, does exist under the Constitution ... These decisions make it clear that only personal rights can be deemed 'fundamental' or 'implicit in the concept of ordered liberty', are included in this guarantee of personal privacy. (28) ... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. (29) ... We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." (30)

The above excerpt makes clear that at least to the Roe Court, "the right of personal privacy includes the abortion decision" and that right of privacy is "deemed fundamental". The conclusion of course, although not expressly stated, is that the right of abortion is a fundamental right. As will be seen below, that understanding was cast in doubt by the Court's decision in Planned Parenthood v. Casey. (31)

d. Planned Parenthood v. Casey

A favorite question of constitutional law professors is "In light of the Supreme Courts Decision in Planned Parenthood, is the right to an abortion still a fundamental right"? The answer to that question is essential to the analysis of the present case. If it is, then congress has a stronger interest in passing laws that might infringe on the right to protected speech. In Casey, (32) at issue were five provisions of the Pennsylvania Abortion Control Act of 1982. The Act required:

1. That a woman seeking an abortion give her informed consent prior to the abortion procedure.
2. That she be provided with certain information at least 24 hours before the abortion is performed.
3. For a minor to obtain an abortion, the informed consent of one of her parents is required, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent's consent.
4. Unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion.
5. The Act imposed certain reporting requirements on facilities that provide abortion services.

The Act exempted compliance with these requirements in the event of a "medical emergency", which was defined under the Act. (33). At the outset the Supreme Court made clear that "the essential holding of Roe v. Wade should be retained and once again affirmed." (34) The Court did however expressly "reject the trimester framework ... [since it did not consider it] ... part of the essential holding of Roe ... " (35) and concluded that "the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy." (36) The court recognized that cases which involved regulation subsequent to Roe "decided that any regulation touching upon the abortion decision must survive strict scrutiny, [and could] be sustained only if drawn in narrow terms to further a compelling State interest." (37) The Court however recognized that such a formulation was not consistent with Roe itself since Roe "speaks with clarity in establishing not only the woman's liberty but also the State's important and legitimate interest in potential life" (38) and that that "portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases." (39) It therefore seems clear that the Court was not indicating that abortion is not a Fundamental right. It merely recognized that perhaps Roe itself did not sound the limits of that right and that State action taken pursuant to the recognition of "Important and legitimate interest" in potential life as expressly recognized in Roe might be permitted. Of course just how far and to what extent that State action may be permitted becomes the next issue. To establish what regulations were permissible, the Court adopted the undue burden analysis which in the Court's own words is a "shorthand for the conclusion that [if] a state regulations has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus ... [it] ... is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the women's free choice, not to hinder it." (40)

The Court then examined the five Pennsylvania Regulations under the undue burden analysis and found:

1. The informed consent requirement, so long as not misleading did not constitute an undue burden (41)
2. The 24-hour waiting period did not constitute an undue burden (42)
3. Spousal notification did constitute an undue burden (43)
4. Consent of Parents with a Judicial by-pass option does not constitute an undue burden (44)
5. The reporting requirements to the state do not constitute an undue burden except to the extent that it requires the woman to disclose why she did not obtain spousal consent. (45)

If there is one thing that the Supreme Court has taught us about fundamental rights analysis, it is that none are absolute. For instance, the constitution makes clear that "The right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated." (46) No one would seriously dispute that such a proscription, operative for the benefit of the people against the government is not a fundamental right. Yet that right, similar to the right of abortion or the right to protected speech is not absolute. Indeed the benchmark decision of Terry v. Ohio (47) showed exactly that. That case permitted some degree of seizure of person based on a flexible balancing test, which looked at the degree and extent of the intrusion balanced against the legitimate reasons or justification for the intrusion. (48) The opinion in Terry did not purport to apply a strict scrutiny analysis in order to determine if the state could deprive a person of a fundamental right. The Terry Court understood as I believe the Court did in Casey, that it was not examining whether denial of the right could be permitted but was indeed establishing the limits and defining the extent of that right. Casey does just that. It retains the core holding of Roe to the extent that it recognizes that the right to abortion is fundamental yet defines the metes and bounds of that right balanced against legitimate state interest.

Whether Roe rests on a strong Constitutional foundation will be debated among scholars, professors, student, judges, lawyers and every one who cares until it becomes an undisputed component of our constitutional framework by shear duration or constitutional amendment. Justice Black did not think that Griswold was decided correctly. The fear he expressed in his opinion is not without merit. The post-Casey Roe is like a wool sweater hanging in the closet. Casey is the moth holes. The moth holes have made it not the neat garment that it once was, yet the sweater still performs its essential function. The post-Casey right to abortion is not the compartmentalized right established under Roe with its punctuated trimester framework. It is however still the law today and until overruled, remains a fundamental right.

IlI. "Clear" as mud yet always "present".
A brief overview of relevant First Amendment Law

a. Building Brandenburg

The jury in Planned Parenthood returned a verdict in favor of the Plaintiffs for one hundred and seven million dollars finding that the "[t]he Nuremberg Files ... are a "true threat" to bodily harm, assault or kill one or more of the plaintiffs." (51) The plaintiffs were further permanently enjoined from providing additional material concerning any of the plaintiffs to the "Nuremberg files" or any mirror web site. (52) This raises some thorny legal issues. First, what is a "true threat"? Second, given the fact that each Circuit Court has its own version of "true threats", which is correct?

To get to the heart of these questions we must take a quick stroll down memory lane, to review the federal courts jurisprudence on First amendment law and determine under what circumstances congress may proscribe speech. For the first step, we must start with the language itself. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." (53)

The first case that began construction of the foundation of the present law in this area was Schenck v. United States. (54) In Schenck, the defendant had been convicted of conspiracy to violate section 3 of the espionage act of 1917. That act made it a crime to advocate the violent overthrow of the government and proscribed revolutionary speech. The defendant had engaged in anti-war protests and distributed documents calling for resistance to the draft. The Schenck court speaking through Justice Holmes expressly recognized that not every utterance was protected speech and that indeed congress could criminalize speech that created a "clear and present danger" that the speech "will bring about the substantive evils that Congress has a right to prevent". (55) The conviction of Schenck was affirmed, but the result was that speech unlike acts could only be made criminal by congress or the states under narrow circumstances.

The next important case is Whitney v. California. (56) In this case, the defendant was convicted under the California Criminal Syndicalism Act (57) which prohibited a person from knowingly becoming a member of any organization that advocates the commission of crime, sabotage, or unlawful acts of force. As with the defendant in Schenck, the conviction of Whitney was affirmed. However, if Schenck was the foundation of our modern first amendment jurisprudence then the concurring opinion of Justice Brandeis in Whitney was the walls. (58) Brandies laid out that would evolve into the new test in Brandenburg v. Ohio. (59) In Brandenburg, the defendant was a leader of the Ku Klux Klan and was convicted under the Ohio Criminal Syndicalism statute for "advocating ... the duty, necessity or propriety or crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform". (60) The Supreme Court in a Per Curium opinion reversed the conviction and adopted the Holmes-Brandies test from Whitney. (61) The test simply stated makes any law unconstitutional which proscribes criminal advocacy, unless three elements exist. First there must be express advocacy of violation of law, second the advocacy must call for immediate violation of the law and third the immediate violation of law must be likely to occur.(62) As noted by one commentator, and I can say it no better here, "[t]he Brandenburg test reflects the Court's emphasis on protecting the following goals of expression: the exchange of differing view points, fostering dissent and unpopular ideas, and communication reflecting the market place of ideas." (63)

At first glance, it would appear that under the Brandenburg test, the speech on the Nuremberg Files web site can not result in liability since it does not expressly advocate violence or call for immediate violation of law. However, as the District Court pointed out in denying the defendants Motion to dismiss, the "plaintiffs are not pursuing an incitement to violence theory ... but rather allege that Defendants intended to harm specific Plaintiffs as evidenced by Defendants' threats. The Brandenburg test applies to laws that forbid inciting someone to use violence against a third party. It does not apply to statutes, like FACE, that prohibit someone form directly threatening another person." (64) We therefore must look to another line of cases that have taken an independent trajectory from Brandenburg know commonly as the "true threat" cases.

b. True Threats: Splitting hairs in split Circuits

In the bench mark decision of Watts v. United States (65) the Supreme Court reversed the conviction a defendant who had been convicted under a federal statue for issuing a threat against the life of the President of the United States. (66) (67) Although skeletal in its analysis, Watts does teach us two important things. First, "the statute under which petitioner was convicted was constitutional on its face." (68) It is therefore clear that where the government can show the existence of the three elements: 1. knowing and willfully 2. making any threat of death or bodily harm 3. against the President, President-elect or Vice President, criminal liability may attach. Second, as is apparent from the above, the problem remains of what constitutes a "true threat". The Court did not provide much guidance in Watts but they did make clear that "[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners" (69) the language used by Watts was not a threat but was merely "a kind of crude offensive method of stating a political opposition to the President". (70)

The Supreme Court provided some insight into the Watts decision in its 1992 when it decided another first amendment case called R.A.V. v. St. Paul, Minn. (71) where it stated that "[t]he Federal Government can criminalize only those threats of violence that are directed against the President, ... since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." (72) (73). Taken together, the decision in Watts which involved a statute that proscribed threats against the President and the subsequent discussion of that case in R.A.V. leave us puzzled as to whether the court is simply saying that threats are not protected under the rubric of the First Amendment or that such speech is protected unless such threats are made against the President since the government has a compelling enough interest to proscribe it. Perhaps the constitutionality of 18 U.S.C. § 871 turned entirely on the fact that the President is the focus of the threat. This distinction remains unresolved to date. Perhaps, if the present case should make it to the high Court, this issue will be resolved, since none of the Plaintiffs in Planned Parenthood are the President. One thing however is clear from these decisions. Context may be taken into consideration when determining the existence of a "true threat".

The present standard to determine what constitutes a threat that is either not protected or is "proscribeable" even though it is has been laid out by the Courts of Appeal. Not surprisingly, there have been some differences in the way the lower courts have followed and applied the "true threat" doctrine.

i. The Second Circuit Standard of what constitutes a true threat.

What constitutes a true threat in the Second Circuit is best exemplified by the decision in United States v. Kelner.(74) The defendant in Kelner had been convicted of violating a federal statute which prohibited interstate communications that threaten to injure any person, when he threatened the life of Yasser Arafat by stating that "We (the Jewish Defense League) are planning to assassinate Mr. Arafat. Just as if an other mur [sic] just the way any other murderer is treated. Everything is planned in detail. It's going to come off. If I elaborate it might be a problem in bringing it off." This was the content of an interview with WPIX news. It was transmitted unedited during the 10:00 O'clock news hour.(75) The Second Circuit affirmed the conviction and laid out what has today remained the test for true threat in that jurisdiction, stating that "so long as the threat on its face and in the circumstance in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened (76) as to convey a gravity of purpose and imminent prospect of execution, the statue may be properly applied." (77)

It is therefore clear that the Second Circuit did not believe that proscription of threats turned on the "overwhelming" governmental interest of protecting the President as Watts and R.A.V. seemed to hint, since Arafat is by no means the President. The Kelner court did however maintain that "important national interests similar to those in Watts exist here, more specifically, the governmental interest of reducing the climate of violence which true threats of injury necessarily contribute." (78)

So what then can be gleaned from Kelner? First, Kelner appears to stand for the proposition that speech which adds to the "climate of violence to which true threats of injury necessarily contribute" may be proscribed by Congress because there are "important national interests" at stake. However, to constitute a threat, a laundry list test must be met. First the utterance must be unequivocal. This sounds very similar to the Brandenburg express language. Second, the language must be unconditional, which sounds similar to the language the Watts Court relied upon to find there was no "true threat". Third it must be immediate. Once again that sounds like borrowing from Brandenburg. Fourth, it must be specific. It is not enough that the utterance speaks in general terms; it must target a "specific person". Fifth, it must convey a gravity of purpose. This element is less than clear unless it simply means that the speaker has to "really want to do it" and is a long hand way of saying intention. Sixth, there must be imminent prospect of execution. This of course creates a problem since it does not appear that both "immediate" and imminent can coexist in the same test.

The thrust of Kelner, is similar to Brandenburg in that the definition of when speech may be punishable is indeed narrow. The reader should at this point stop to consider if the speech on the "Nuremberg Files" web site rises to the level of this test.

ii. The Sixth Circuit and Baker

In United States v. Alkhabaz (79) the Sixth Circuit "had a go" at an Internet based threat case. Here, the defendant had been charged under a federal statute with transmitting threats in interstate commerce. (80) The defendant had sent private e-mail to another person named Arthur Gonda and posted information on an Internet news group. The communications "graphically described the torture, rape, and murder of a woman who was given the name of a classmate." (81) The District court, in reversing the defendants conviction, adopted the language of Kelner and held that speech can only be proscribed as being a true threat if "the threat on its face and in the circumstance in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution." (82) A careful reading of that language however, is different than Kelner.

The District Court in Baker added some wiggle room by permitting an evaluation of the circumstances in order to find the existence of all the other elements, thus adopting part of the Watts test. Clearly this can be viewed as either narrowing or broadening what constitutes a "true threat", depending on the circumstances that exist. Varying circumstances may tend to make more likely or less likely the existence of a "true threat". The District Court opinion in Baker and the Kelner opinion, although slightly different, are very close to the same. We have uniformity.

Not so fast, the Sixth Circuit was not prepared to makes things that neat. The Sixth Circuit did affirm the decision of the District Court but created its own test of what constitutes a "true threat" and made clear that in order for speech to be considered a true threat, "a communication must be such that a reasonable person: (1) would take the statement as a serious expression of an intention to inflict bodily harm (the mens reas); and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (actus reus)." (83) The core of Baker is fairly simple. (84) First, the Sixth Circuit test is clearly recipient based. Second, it creates an objective standard for the recipient. Third, it neither expressly adopts nor repudiates the District Court's circumstances element.

iii. Finally, the Ninth Circuit

The Ninth Circuit in Lovell v. Poway Unified School District (85) applied an objective speaker based standard to determine the existence of a "true threat". In Lovell, a student, told her school counselor "if you don't give me this schedule change, I'm going to shoot you!" (86). Lovell was suspended from school. The student's parents sued, claiming in part that the suspension violated the student's First Amendment rights by punishing her speech. The Ninth Circuit established the objective speaker based test and held that so long as "[a] reasonable person in these circumstances would have foreseen that [the counselor] would interpret that statement as a serious expression of intent to harm", (87) the speech was not protected. Lovell also adopted a circumstance test similar to the District Court in Baker and the Watts Court, by stating that "[a]lleged threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners." (88) This is the test and not the Baker or Kelner test that the District Court applied in Planned Parenthood, in denying the defendants motion for summary judgment. The District Court specifically stated, "I have carefully evaluated the Ninth Circuit cases from which the present objective test evolved, and conclude that the existing test adequately protects the defendants' First amendment rights in this case." (89)

To sum up, the Ninth Circuit test is objective based as to the speaker, with foresight of how the hearer will understand the utterance, taken against the backdrop of circumstances. It was this test that resulted in liability of the Defendants in Planned Parenthood. At this point, the reader should first, consider the significant difference between the Second Circuit and the Ninth Circuit standard and second, consider whether the Nuremberg Files was a "true threat" under either test. It appears that under the Ninth Circuit test, there was no legal error in finding defendants liable. However, under the Second Circuit test, liability does not exist since it does not appear as though, even under the circumstances, which is not part of the Kelner test, all other elements have been met.

III. The Proper Analysis and Flawed approaches

a. What will happen on Appeal?

The jury in the present case applied the true threat doctrine of the Ninth circuit to find that the "Nuremberg Files" did constitute a "true threat". They found, First that a reasonable person in these circumstances would have foreseen that plaintiff doctors whose names were on the list would interpret the web site as a serious expression of an intent to harm them, evaluated against the backdrop of the circumstances. In this paper, I have indicated that such a finding would have been erroneous under the second circuit Kelner test since it does not appear as though a reasonable jury could have found that the "Nuremberg Files" was so unequivocal, unconditional, immediate and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution. Two elements appear to be missing in this case. First, the statements were not unequivocal. There was no direct statement of an intent to kill or injure. Second there was no immediacy. The Web site did not call for immediate conduct.

Certainly the Ninth Circuit will be expected to apply its standard in the present case. If so, it is likely that the district Court finding will be upheld. The question, however, is what will the Supreme Court say. It should be obvious at this point that there is a profound lack of uniformity among the circuits as to what constitutes a true threat. If the Ninth Circuit affirms the District Court this case seems likely to find its way to the Supreme Court for two reasons. First, in this case the District Court opinion stated "I conclude that, to the extent the Second Circuit continues to adhere to Kelner, it is not the law in the Ninth Circuit." (91) This creates a clear problem of federal uniformity on a constitutional question making it ripe for review. Second, as pointed out earlier in this paper, the first amendment is fueling the debate, but the case did not arise because of it. As Justice Blackmun pointed out in the introduction of his Roe opinion, this case is about the "emotional nature of the abortion controversy, of the vigorous opposing views ... and of the deep and seemingly absolute convictions that the subject inspires." (92) These two elements, the need for uniformity and diametric points of views held by the plaintiffs and the defendants, almost ensure a round trip ticket to Washington.

Should this case get to the High Court, it is this commentators opinion that the sounder rule is Kelner. It is the rule that the Supreme Court will most likely apply since it seems to comport more closely with existing Supreme Court precedent. Kelner appears to be fashioned in the same likeness as Brandenburg. It includes the requisite express and unequivocal characteristics along with the need to establish immediate lawlessness required under Brandenburg. Kelner also seems to be a more comfortable fit with Watts, where the Supreme Court allowed even express language targeted at the President of the United States to be deemed "political hyperbole". The Ninth Circuit Test protects less speech than Kelner and indeed less than Watts and Brandenburg. It imposes too great a burden on the speaker since it requires the speaker to determine if a reasonable person in the position of the speaker would foresee that the listener would take the speech to be a "true threat". That standard seems to borrow the "eggshell plaintiff" theory from tort and makes the speaker essentially strictly liable should the hearer subjectively consider the utterance a threat. This places the speaker in an unenviable position. He can chose to speak and run the risk of liability simply because the hearer is an "eggshell plaintiff" or forego the speech. Should the speaker choose the former and suffer liability, the effect will run directly against the defendant in the form of damages and injunction. The ancillary and indeed greatest concern to the Supreme Court would be the "Chilling Effect" on any speech that draws close to the line. Such a result would be in contrast with the Holmes-Brandies "clear and present danger" standard announced in Schenck and would undermine the purpose of the First amendment.

b. The Flaw In Judge Jones' Opinion

One of the problems with Judge Jones' opinion (93) in denying the motion to dismiss is that he subjects FACE to an improper Standard of Review. He starts with the broad proposition that "true threats are not protected by the First amendment". (94) He then goes on to develop an analysis for determining the proper standard of review to be applied in the present case. Judge Jones discusses the difference between content-based regulations, subject to strict scrutiny (95) and content-neutral regulations subject to intermediate scrutiny. The analysis concludes with a finding that "FACE is not viewpoint based because it prohibits all conduct regardless of the violators viewpoint so long as that conduct is directed towards a person merely because that person obtains or provides reproductive health services." (96) The Judge then concludes that an "intermediate level of scrutiny" is proper. Judge Jones sums up the analysis by concluding that "FACE serves substantial government interests in preventing violence and preserving access to reproductive health services and is narrowly tailored to further those interests with out targeting the content of the expression." (97)

This analysis creates a problem. Watts clearly states that "true threats are not protected by the First amendment". (98) If Watts is correct, and we must assume that it is, then why is Judge Jones applying any other standard of review than rational basis? Second, how is it possible that FACE does not target the "ontent of the expression"? The content of the expression is precisely what is at issue in the present case. If it were not, we certainly would not have to consider the objective speaker's foresight of how the recipient would take the speech. Nor would we be considering the factual context in which the speech is uttered.

The analysis seems hopelessly flawed. Under Judge Jones' analysis, the case should have been dismissed since an important governmental interest is not a strong enough showing to regulate the content of the speech which is precisely what gives rise to liability under FACE. The proper analysis is simpler and should have been as follows: 1. FACE makes "true threats" criminal. True threats are not protected by the First Amendment (Watts). 2. Therefore, in order for FACE to be constitutional, the means must be rationally related to the legitimate governmental interest of protecting access to clinics. 3. If it is, then the motion is denied. This makes sense. Certainly we would not consider it proper if Judge Jones analyzed "physical obstructions" or "intentional injury", also proscribed by FACE, based on any other standard than rational basis. Like "true threats", both of those things have the same amount of First Amendment protection: None. When the Judge determined what true threat standard to apply and that the conduct of the defendants could possibly have met that standard, the analysis should have ended.

IV. Conclusions and observations. Clash of the Titans:
The fundamental right of abortion v. the right to protected speech.

Now what if Watts does not really stand for the proposition that it is cited for, i.e. that true threats are not protected by the first amendment? As discussed above, abortion is a fundamental right. Whether that right derives from the notion of liberty in the 14th amendment as indicated by the Casey Court or is based on the Griswold understanding of emanations of penumbras is of no consequence. The Supreme Court has said it is so.

Access to that right has recently been burdened. These burdens are not the result of state action, which would of course be scrutinized under the Casey "undue burden" analysis. They are the result of private action. "Between 1977 and 1993, reproductive health providers reported over 1,000 violent acts and over 6,000 clinic blockades. In particular, there have been 154 arson incidents, 39 bombings, and 99 acid attacks against abortion providers." (99) "Since 1993, seven individuals involved in abortion provision have been murdered, in addition to 14 attempted murders. Also since 1993, there have been more than 200 clinic bombings and arsons." (100) Even assuming that the reporting of these statistics may be slanted, they still make clear that obtaining and providing abortion has become a dangerous business. Indeed the legislative purpose of FACE is to "protect and promote the public safety and health and activities affecting interstate commerce". (101)

In short, Congress recognized that the right to abortion is of little value if that right cannot be exercised because of unreasonable interference. They considered the history of violence and potential for actual violence to amount to that sort of interference. The language of FACE itself makes it apparent since the prohibited activities include force, threat of force, physical obstruction, intentional injury, intimidation and interference. The language of the statue is indeed broad and even results in liability where there is an attempt at any of the above. The broadest reading of the statute would result in liability where a "threat of force ... [is an] ... attempt to injure, intimidate or interfere..." (102) Such a construction of the statute clearly evinces the desire of Congress to draw the line away from injury in fact, back to mere risk that injury will occur. Is it possible that Congress was thinking that it might suppress some types of speech, which contribute considerably to the climate of violence and aggregately result in foreclosure of access to abortion clinics? That of course depends on what congress meant in the statute that "[n]othing in this section shall be construed to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution." (103) If the phrase "expressive conduct" means everything that is protected by the First, amendment including speech, then clearly it was not congress' intention to abrogate some areas of the First Amendment. However, if "expressive conduct" as used in that section does not include speech, then such a construction is permissible. The analysis would then be not be one of legislative intent, but instead one of legislative competence, since Congress is incompetent to legislate away fundamental rights unless the law survives strict scrutiny. Maybe in light of the fact that the intention of FACE is to permit patient access to the fundamental right of abortion, it does survive strict scrutiny.

Remember, Judge Jones, although flawed in his reasoning, applied intermediate scrutiny and found that FACE was constitutional since there was important governmental interest in ensuring access to clinics and the means for providing it was substantially related to that goal. Could it not also be shown that the legislative interest was "compelling" and the means were narrowly tailored and least intrusive? Recall the statistics leading up to the passage of FACE. Remember that we are talking here about a constitutional fundamental right to abortion. Certainly if abortion was not a fundamental right, the only purpose for the act would be that the violence has an impact on interstate commerce. The commerce clause alone, in not enough to abrogate a part of the First Amendment. The commerce clause coupled with Congress' duty to ensure access to abortion clinic may be.

As mentioned at the outset of this paper, the first amendment did not create the litigation in Planned Parenthood. The conflict has existed on a federal level since the 1973 decision of Roe v. Wade. It is not likely to end with this case. The problems that the Circuits are having in applying the "true threats" standard have made this case a hot legal area for commentary. Regardless of your position on the abortion issue, it is clear that a uniform rule of law is necessary regarding "true threats". The Supreme Court is going to have to deal with this issue at some point and lay down a rule that can be followed in all parts of the country. Disparity of treatment would do little to further the interests of congress in protecting access to clinics. On the other hand, permitting Congress to legislate in areas that abrogate the First amendment is akin to letting the fox guard the hen house, since it is the First amendment that is the check of the people on evil government. Inroads made into first Amendment protection today might be used for mischievous purpose in the future and must always be evaluated with that consideration in mind.

Rob Vara,
January 2001

Footnotes:

1. J.D. Candidate, Pace University School of Law 2001 (Evening Division). B.A. Kutztown University of Pennsylvania. (back)
2. See generally Library of Congress, http://lcweb2.loc.gov:8081/ammem/ndlpedu/statdata/comm.html. Stating that in 1998 the total number of adult Internet users was 195,192,000. See also: Vint Cerf, Brief History of the Internet(link visited October 9, 2000) http://www.isoc.org/internet-history/cerf.html. (back)
3. The substantive law on these matters has ranged from criminal, see United States v. Morris, 928 F.2d 504 (2d. Cir. 1991) to copyright, see Playboy v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993), Religious Technology Center v. Netcom, 907 F.Supp. 1361 (N.D. Calif 1995) to tort, see Cubby v. Compuserve, 776 F.Supp. 135 (S.D.N.Y. 1991). (back)
4. There are presently four opinions that have been issued by the United States District Court for the District of Oregon based on the procedural posture of the case. The citations are as follows: Planned Parenthood v. American Coalition of Life Activists, 95 F. Supp. 1355 (D. Org. 1996)., Planned Parenthood v. American Coalition of Life Activists, 23 F. Supp.2d 1182 (D. Org. 1998)., Planned Parenthood v. American Coalition of Life Activists, 1999 WL 65450 (D. Org. 1999)., Planned Parenthood v. American Coalition of Life Activists, 41 F. Supp.2d. 1130 (D. Org. 1999). (back)
5. Specifically the plaintiffs are: Planned Parenthood of the Columbia/Williamett, Inc, Portland Feminists Women's Health Center, Robert Crist, M.D., Warren Hern, M.D., Elizabeth Newhall, M.D., James Newhall M.D., and Karen Sweigert, M.D. Planned Parenthood, 945 F.Supp 1355 at1362 FN1 (D. Org. 1996). (back)
6. 18 U.S.C. § 248 (1998). The plaintiffs alleged that the defendants had engaged in the prohibited act enumerated in 18 U.S.C. 248 (a)(1) which states:
   "(a) Prohibited activities - Whoever -
   (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services; ...
   shall be subject to the penalties provided in subsection (b) and the civil remedies provides in subsection (c) ..."
   The case also involves the application of the Racketeer Influenced and Corrupt Organizations Act 18 U.S.C.A § 1961 and the Oregon Coercion Statute ORS § 163.275. (back)
7. The terms anti-choice and pro-choice are the two general terms that will be used throughout this paper to identify the two interests. The author is aware that these are not the only terms used to identify persons who hold such views. The decision to use the two terms is a matter of convenience only and should not be taken by the reader as an indication of a slanted point of view. The author recognizes that some people who are characterized here as being anti-choice would prefer to be called pro-life or anti-abortion. It is also recognized that the term pro-choice might be characterized as anti-life or pro-abortion. Such disputes are beyond the scope of this paper. The terms were selected as a matter of convenience only. (back)
8. The Internet Service Provider, Mindspring shut down the Nuremberg Files web site on February 4, 1999. Mindspring claimed that the Nuremberg Files were terminated for violation the providers appropriate-use policy for "threatening and harsh language". David Hudson, Internet Service Provider Pulls the Plug on Nuremberg Files http://www.bettydodson.com/abortisp.html (February 7, 1999). The site however has been mirrored, first by Karin Spaink at http://www.xs4all.nl/~kspaink/nuremberg/index.html and later by Zenon Panoussis at http://www.xs4all.nl/~oracle/nuremberg/gate.html. (back)
9. The hard copy posters are not within the scope of this paper. (back)
10. This is the language as cited by John P. Cronan in Free Speech on the Internet: Does the First Amendment Protect the "Nuremburg Files", 2 Yale Symp. L. &Tech. (2000). http://lawtech.law.yale.edu/symposium/00/comment-cronan.htm (visited 10/21/00). That article provided a link to the actual mirrored site, which is no longer in existence. The link provided to the site above in FN 8 will take the reader to the site, at least as of 10/24/00. That particular mirror site does not have the language cited by Cronan. The language on that site is "We are updating this section weekly. Our goal is to record the name of every person working in the baby slaughter business across the United States of America. Email us with your evidence." (back)
11. Jury Verdict, Planned Parenthood of Columbia/Williamette, Inc. v. American Coalition of Life Activists, N. 95-1671-JO (D.Or. filed Feb. 2, 1999). (back)
12. See Planned Parenthood of Columbia/Williamette v. American Coalition of Life Activists, 1999 WL 65450 (D. Or. 1999). Note at page four of the injunction, the language clearly states that the defendants are enjoined from "[p]roviding additional material concerning Dr. Robert Crist, Dr. Warren Hern, Dr. Elizabeth Newhall, Dr. James Newhall, Planned Parenthood etc."... It is clear that this does not enjoin the web site publisher Neal Horsley from maintaining the site. (back)
13. Roe v. Wade, 410 U.S. 113 (1973). (back)
14. Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1992). (back)
15. Planned Parenthood of Southern Pennsylvania v. Casey is usually short cited as Planned Parenthood. However, since the principal case has the same name, Casey will be used as a shorthand hereafter. (back)
16. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681 (1965). Internal citations omitted. (back)
17. Planned Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1992) (back)
18. Eisenstadt v. Baird, 405 U.S. 438 (1972) (back)
19. Id. at 480. The Appellants here were actually Griswold who was the Executive Director of the Planned Parenthood League of Connecticut and Buxton who was a licensed physician and professor as the Yale Medical School who served as the Medical Director of the league. The Appellants gave information, instruction and medical advice to married persons as to the means of preventing conception. They were found guilty as accessories to violation of the Connecticut Statue. (back)
20. Id. at 484-485. (back)
21. See Generally Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410 (1974), Kauper, Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case, 64 Mich. L. Rev. 235 (1965) (back)
22. Id. at 510 (Dissenting opinion by Justice Black) (back)
23. Id. at 522 (Dissenting opinion by Justice Black) (back)
24. Id. at 452 to 454 (back)
25. Roe v. Wade, 410 U.S. 113 (1973). (back)
26. A search conducted by the author on Yahoo returned 17,300 web page hits for the title Roe v. Wade. Compare that to Brown v. Board of Education, which returned 64,800 and Marbury v. Madison, which returned 2830. (back)
27. Id. at 120 (back)
28. Id. at 152 (internal citation omitted) Citing Griswold "in the penumbras of the Bill or Rights" (back)
29. Id. at 153 (back)
30. Id. at 153 (back)
31. Planned Parenthood v. Casey, 505 U.S. 833 (1992) (back)
32. This case is usually referred to as Planned Parenthood as short hand. In this paper, to avoid confusion with the principal case, it will be referred to as Casey. (back)
33. Id. at 844 (back)
34. Id. at 846 (back)
35. Id. at 873 (back)
36. Id. at 870 (back)
37. Id. at 871 (back)
38. Id. (back)
39. Id. (back)
40. Id. at 877 (back)
41. Id. at 883 (back)
42. Id. at 887 (back)
43. Id. at 895 (back)
44. Id. at 899 (back)
45. Id. at 901 (back)
46. U.S. Const. amend. IV. (back)
47. Terry v. Ohio, 329 U.S. 1 (back)
48. Id. at 30 (back)
49. New York Times Co. v. Sullivan 376 U.S. 254, 269, 84 S.Ct. 710, 720, 376 U.S. (1964), citing United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). (back)
50. Id. at 269 citing Justice Brandies' concern opinion from Whitney v. California, 274 U.S. 357, 375-376, 47 S.Ct. 641, 648, 71 L.Ed. 1095. (back)
51. Planned Parenthood v. American Coalition of Life Activists, F.Supp. 2d 1130 at 1133 (D. Org. 1999). Internal quotations omitted. (back)
52. Id. at 1156. As pointed out by the District Court in footnote 2 of the injunction, "A mirror web site within the meaning of this Order means a web sit created by an independent party who takes the content form a web site and reproduces it on his or her own computer (the web server) and locates it at a different Internet address." Id. at 1156. Internal quotations omitted. (back)
53. U.S. Const. amend. I. (back)
54. Schneck v. United States, 249 U.S. 47 (1919) (back)
55. Id. at 52 (back)
56. Whitney v. California, 274 U.S. 375 (1927) (back)
57. Criminal syndicalism. Any doctrine or precept advocating, teaching, or aiding and abetting the commission of crime, sabotage (defined in the act as willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism, as a means of accomplishing a change in industrial ownership, or control, or effecting any political change. Black's Law Dictionary (Westlaw Online) (back)
58. Justice Holmes concurred with Justice Brandies (back)
59. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827 (1969) (back)
60. Id. at 444 (back)
61. Brandenburg expressly overruled Whitney, but the Holmes concurrence in Whitney was essentially adopted. (back)
62. Bernard Schwartz, Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?, 1994 Sup. Ct. Rev, 209, 240-241 (1995). (back)
63. Jeremy C. Martin, Deconstructing "Constructive Threats": Classification and Analysis of Threatening Speech After Watts and Planned Parenthood, 31 St. Mary's L.J. 751 at 760. (back)
64. Planned Parenthood v. American Coalition of Life Activists, 945 F. Supp. 1355 at 1371, FN13 (D. Org. 1999). Internal quotations and parenthesis omitted. (back)
65. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (back)
66. 18 U.S.C. s 871(a) provides:
    "Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both." (back)
67. The arrest of Watts arose from language spoken by home at a rally held at the Washington Monument where he stated, "I am not going. If they ever make me carry a rifle the first man I want to get in my sight is L.B.J. They are not going to make me kill my black brothers." Id. at 706, 89 S.Ct. at 1400-1401. (back)
68. Id. at 707, 89 S.Ct. at 1401 (back)
69. Id. at 707, 89 S.Ct. at 1402 (back)
70. Id. (back)
71. R.A.V. v. St. Paul, Minn., 505 U.S. 377, 112 S.Ct. 2538 120 L.Ed.2d 305 (1992) (back)
72. Id., 505 U.S. 377, 388, 112 S.Ct. 2538, 2546 (back)
73. Note that this position was somewhat misstated in the amicus brief submitted to the Oregon District Court by the American Civil Liberties Union of Oregon. ACLU Foundation of Oregon Amicus Curiae, Planned Parenthood v. American Coalition of Life Activists http://www.aclu-or.org/aclu/ppbrief.htm (site visited Oct. 3, 2000). In that brief, the author cited the Supreme Court as saying "threats of violence are outside the First Amendment ... [in order to protect] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." This of course lacks the limiting language of "only those threats of violence that are directed against the President" which was part of that sentence. This may have been the sort of intellectually dishonest citing that led one commentator to characterize the ACLU in this case as "Reluctant Defenders". See Stephen G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 Tex. L. Rev. 541 at 577 (1999). (back)
74. United States v. Kelner, 534 F.2d.1020 (2d Cir. 1976), cert. Denied 429 U.S. 1022 (1976) (back)
75. Id. at 1021-1022. I have removed the questions of the person conducting the interview. (back)
76. Note that as indicated in FN 73 Supra., there is another misstatement in the amicus brief submitted to the Oregon District Court by the American Civil Liberties Union of Oregon. ACLU Foundation of Oregon Amicus Curiae, Planned Parenthood v. American Coalition of Life Activists http://www.aclu-or.org/aclu/ppbrief.htm (site visited Oct. 3, 2000). In that brief on page 23 in FN24, the ACLU cited Kelner as follows. That the alleged threat both "on its face and in the circumstances in which it is made [be] so unequivocal, unconditional, immediate and specific ... as to convey a gravity of purpose and imminent prospect of execution." That citation replaced the important words "as to the person threatened" with three periods. The intention of this paper is not to criticize the ACLU. However, as with Stephen Gey, Supra., this writer is now seriously concerned with the motivation of the ACLU brief. (back)
77. Id. at 1027 (back)
78. Id. at 1026 (back)
79. United States v. Alkhabaz 104 F.3d 1492 (6th Cir. 1997). This case is referred to as the "Baker Case" among commentators. The original District Court title was United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995). (back)
80. 18 U.S.C. § 875 (back)
81. Id. at 1379. Like Baker, the classmate attended the University of Michigan. (back)
82. Baker at 1382 (back)
83. Alkhabaz at 1495 (back)
84. See generally, Robert Kurman Kelner, United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287 (1998). (back)
85. Lovell v. Poway Unified School District, 90 F.3d 367 (9th Cir. 1996), cert. dismissed, 518 U.S. 1048 (1996) (back)
86. Id. at 369 (back)
87. Id. at 372 (back)
88. Id. at 372 (back)
89. Planned Parenthood v. American Coalition of Life Activists, 23 F. Supp.2d 1182 (D. Org. 1998). (back)
90. Id. at 1191 (back)
91. Id. at 1191 (back)
92. Roe at 116 (back)
93. Planned Parenthood v. American Coalition of Life Activists, 945 F. Supp. 1355 (D. Org. 1999). (back)
94. Id. at 1371 (Citing Watts v. United States, supra.) (back)
95. Turner Broadcasting v. F.C.C., 512 U.S. 622 (1994), Simon & Schuster v. New York Crime Victims Board, 502 U.S. 105, NAACP v. Button, 371 U.S. 415 (1963) (back)
96. Id. at 1376 (back)
97. Id. at 1377 (back)
98. Id. (back)
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