DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST PLANNED PARENTHOOD, et. al.
Appellees
v.
MILLER, et. al.
Appellants
Pursuant to 9th Cir. R. 26.1, The Thomas Jefferson Center for the Protection of Free
Expression makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation?
Nc
If the answer is YES, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
2. Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? -\l~~Of--If the answer is YES, list the identity of such corporation and the nature of the
financial interest:
Signature of Counsel
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... ii STATEMENT OF INTEREST OF AMICUS CURIAE .......................................... .! S~~ OF ~<=T~NT ............................................................................... 1 WHERE WORDS ALONE ARE CHAR<=TED, CIVLLLY OR CRIMINALL~, THE FIRST AMENDMENT REQUIRES THE UTMOST CARE IN DIFFERENTIATING BETWEEN POLITCAL RHETORIC AND "TRUE THREATS."
3
1.
II.
WHERE WORDS ALONE ARE THE CLAIMED BASIS FOR CIVIL LIABILIT~, THE FIRST AMENDMENT REQUIRES THE FULL EXERCISE OF A REVIEWING COURT'S INDEPENDENT JUDGMENT.
10 CONCLUSION..................................................................................................... 12 CERTIFICATE OF COMPLIANCE ..................................................................... 13 CERTIFICATE OF SERVICE .............................................................................. 14 1
TABLE OF AUTHORITIES Cases:
Bernstein v. United States Department ofJustice, 176 F.3d. 1132 (9th Cir. 1999)
1
Bose Corp. v. Consumers Union, 466 U.S. 485 (1984)
3, 11
Brandenburg v. Ohio, 395 U.S. 444 (1969)
2
Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
8
Lovell v. Poway Unified School District, 90 F .3d 367 (9th Cir. 1996)
10
Madsen v. Women's Health Center, 512 U.S. 753 (1994)
11
McCalden v. California"Library Ass 'n, 955 F.2d 1214 (9th Cir. 1992)
5
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)
4,6
New York Times v. Sullivan, 376 U.S. 254 (1964)
4
R.A. V. v. City ofSt. Paul, 505 U.S. 377 (1992)
11
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)
11
United States v. Gilbert, 884 F.2d 454 (9th Cir. 1989)
5
United States v. Kelner, 534 F.2d 1020 (2nd Cir. 1976)
7, 8, 9, 10
United States v. Malik, 16 F.3d 45 (2nd Cir. 1994)
9
United States v. Merrill, 746 F.2d 458 (9th Cir. 1984)
5
United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990)
2,5
Watts v. United States, 394 U.S. 705 (1969)
2,4
11
Other:
Judge's Instructions to Jury, Brief of Appellants' American Coalition of Life
Activists , et.al. .......................................................................................................... 5 111 SOURCE OF AUTHORITY TO FILE AS AMICUS CURIAE
This brief is filed with the consent of the parties pursuant to Ninth
Circuit Rule 29 (a). However, since the parties have not yet seen the brief,
their consent should not be seen as either an endorsement or a disagreement
with the legal arguments presented by amicus curiae.
IV
STATEMENT OF INTEREST OF AMICUS CURIAE The Thomas Jefferson Center for the Protection of Free Expression is a non­
profit, non-partisan organization in Charlottesville, Virginia. Founded in 1990, the
Center has as its sole mission the protection of free speech and press against threats
in many fonns.
The Center has participated actively in the litigation of First
Amendment issues, and has filed amicus curiae briefs in the Supreme Court and in
the Federal Courts of Appeals, including this Court, most recently in Bernstein v.
United States Department ofJustice, 176 F.3d. 1132 (9th Cir. 1999).
SUMN1ARY OF ARGUMENT
The judgment of the district court imposes massive civil liability on the basis
of words alone. Moreover, those words express a view related to a political issue -­
a view deeply abhorrent to most Americans, but nonetheless a view of the type that
is protected by the First Amendment.
The words themselves contain no express
threat of physical harm to person or property. Nor is there any proof that the purely
factual infonnation conveyed by these words is false or defamatory.
Accordingly,
this is a case that requires the most sensitive and scrupulous review by this Court,
since freedom of expression is clearly in issue.
Where provocative speech alone is the target of legal action, civil or criminal,
1
the greatest care must be taken in imposing any form of sanction. While under
certain carefully defined conditions mere words may occasion legal liability, the
Supreme Court has insisted that those conditions be determined with the greatest
precision to safeguard protected expression. See Brandenburg v. OhiO, 395 U.S.
444, 448 (1969). The need for such care is especially acute where, as is the case
here, the targeted speech concerns volatile topics of public and political debate. See
Watts v. United States, 394 U.S. 705, 708 (1969).
While certain types of verbal threats may incur legal sanctions, this Court has
consistently recognized that not all words which may seem to convey a threat are
unprotected.
As cases like United States v. Orozco-Santillan, 903 F.2d 1262 (9th
Cir. 1990) make clear, the task of determining what constitutes a "true threat" -- for
which the speaker may be liable -- is a delicate and painstaking one.
That task
becomes even more difficult when the alleged threats contain language which,
literally construed, do not immediately threaten harm, and which include a view on a
volatile political question.
In such a case, the potential for chilling protected
expression is especially grave. Such a risk can be avoided only if legal sanctions
are confmed to those statements that are unmistakably the "true threats" this Court
has recognized as a separate and unprotected category of speech. The judgment
below fails with sufficient clarity to draw that line.
For First Amendment purposes, it is irrelevant that the words charged involve
2
abortion, or that they might encourage readers or listeners to thwart a woman's
constitutionally protected right of choice. For if an abhorrent subject matter proved
to be disqualifying under the First Amendment, militant advocates of civil rights, or
consumer interests, or labor protest might be silenced by similar judgments if a jury
found certain extreme and inflammatory statements to be actionable threats.
Appellate review of the judgment below is made the more demanding and
sensitive simply because the speech in issue is so controversial and unpopular. This
Court's role in such a First Amendment case is, under Bose Corp. v. Consumers
Union, 466 U.S. 485 (1984), to exercise its own judgment in distinguishing between
protected and unprotected elements of expression. Issues of constitutional import -­
most especially, whether the statements in issue do amount to "true threats" -- may
not, under Bose, be left to the fmal and unreviewable determination of a jury. The
status of the words in this case, however hateful they may be, must be determined
by this Court.
I. WHERE
WORDS
ALONE
ARE
CHARGED,
CIVILL Y
OR
CRIMINALLY, THE FIRST AMENDMENT REQUIRES THE UTMOST
CARE IN DIFFERENTIATING BETWEEN POLITICAL RHETORIC AND
"TRUE THREATS."
This case involves only words, or pure speech.
No conduct has been
charged. While deplorable acts of violence have been widely perpetrated by others,
and have even been attributed to some of the appellants, those acts are not the focus
3
of this case.
Moreover, the expression at issue involves a subject of intense and
highly emotional national debate. Thus the guidance of the United States Supreme
Court in NMCP v. Claiborne Hardware Co., 458 U.S. 886, 926-27 (1982) is
relevant here: "Since [plaintiffs in a civil suit against demonstrators] would impose
liability on the basis of a public address -- which predominantly contained highly
charged political rhetoric lying at the core of the First Amendment -- we approach
this suggested basis of liability with extreme care."
It is well settled that not all words are fully protected by the First
Amendment. Among potentially unprotected words are "true threats" -- though the
Supreme Court has stressed that "[w]hat is a threat must be distinguished from what
is constitutionally protected speech." Watts v. United States, 394 U.S. 705, 707
(1969).
In applying that precept in Watts, the Court reiterated the "profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and public officials." Id.
at 708 (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).
"The
language of the political arena, like the language used in labor disputes, is often
vituperative, abuse, and inexact." Watts, 394 U.S. at 708 (citations omitted).
The distinction between the "uninhibited, robust and wide-open debate" to
which our nation is so deeply committed, and the "true threats" that the First
4
Amendment does not tolerate, can be simply stated but is never easily applied. The
tension between preserving the fonner while proscribing the latter is inescapable, as
this Court has often recognized. This Court has adopted, and the district court in
this case applied, an objective, speaker-based test to detennine whether an alleged
threat is a "true threat" for the purposes of the First Amendment. 1 Unlike other
cases in which this Court has invoked its concept of "true threat", the facts of the
present case illustrate the risk that such a standard -- if not applied in the most
sensitive way -- could gravely chill political expression on issues of public concern".
In the earlier cases before this Court, the alleged threat was either explicit on its
face (see United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990)), was
accompanied by conduct by the speaker that left little doubt as to his threatening
intent (see United States v. Merrill, 746 F.2d 458 (9th Cir. 1984)), was conveyed
directly face-to-face or by personally addressed mail to the threatened individual
(see United States v. Gilbert, 884 F.2d 454 (9th Cir. 1989)), or was a "privately
communicated threat[]" of the type that was crucial to this Court's judgment in
McCalden v. California Library Ass 'n, 955 F.2d 1214, 1222, 1225 (9th Cir. 1992).
"[E]ven if you fmd that the defendants did not intend their statements to be
threatening, you must still fmd those statements to be threats if you conclude that a
reasonable person would have foreseen that those statements, in their entire factual
context, would have been interpreted as statements of intent to do bodily hann or
assault." Judge's Instructions to Jury, Brief of Appellants American Coalition of
Life Activitst et.al., p. 62.
1
5
The present case is different in ways that could be viewed as constitutionally
significant. Liability in the court below was based on words that were not only
facially non-threatening, but which were never directly conveyed to those who
claimed to have been the targets or objects of those words.
Only by giving those
words a meaning that depends upon the broad national context of violence against
abortion clinics and providers do they become actionable "threats." Such a process
of attribution fmds little support in judgments of the Supreme Court or of this Court,
which have not previously confronted the· question.
Given the intensity of the views that appellants harbor about abortion,
passionate and inflammatory language (which some persons might well view as
"threatening") is hardly surprising. Nor is the situation different in other volatile
arenas -- civil rights, environmental protection, union organizing, consumer
boycotts, etc. -- where passionate views often give rise to intemperate, even
menacing words.
As the Supreme Court observed in Claiborne Hardware,
"[s]trong and effective extemporaneous rhetoric cannot be nicely channeled in
purely dulcet phrases." 458 U.S. at 928.
As another United States Court of Appeals has recognized, the most effective
balance between putative threats and volatile rhetoric is to limit legal sanctions to
"those [threats] which according to their language and context convey[] a gravity of
purpose and likelihood of execution so as to constitute speech beyond the pale of
6
protected 'vehement, caustic.. unpleasantly sharp attacks on government and
government officials.'"
United States v. Kelner, 534 F.2d 1020, 1026 (2nd Cir.
1976) (citations omitted). In Kelner, the defendant was charged with threatening to
assassinate Palestine Liberation Organization chainnan Yasser Arafat during his
visit to New York in 1974. 534 F.2d at 1020. Prior to the visit, defendant held a
press conference in which he made a number of explicitly threatening statements,
including "we [the Jewish Defense League] are planning to assassinate Mr. Arafat."
Id. at 1021. Kelner was convicted under a federal statute prohibiting transmission
"in interstate commerce any communication containing any threat...to injure the
person of another..." Id. at 1020.
Kelner appealed his conviction in part on the ground that his statements were
not a "true threat", but political hyperbole protected under the First Amendment. Id.
at 1024. Kelner argued that what distinguished the two was specific intent to carry
out the threat. Id. The Second Circuit concluded, however, that what the district
court had punished was the utterance of the threat, not the specific intent to carry
out the threat. Id. at 1025. In reaching that conclusion, the Second Circuit did not
discount the importance of a defendant's subjective intent in detennining culpability.
Rather, because of the "almost impossible task of evaluating [a defendant's]
subjective mental processes" (id. at 1027), the Court substituted an unequivocal
standard which the charged words themselves must meet in order to be deemed a
7
true threat. Such a standard "works ultimately to much the same purpose and effect
as would a requirement of specific intent to execute the threat because both
requirements focus on threats which are so unambiguous and have such immediacy
that they convincingly express an intention of being carried out." Id.
Further, the substitution of explicitness for specific intent protects the
expression of those views that may appear threatening to some listeners, but are not
objectively "true threats." In many political, religious, and public issues, a high
degree of animus is inextricably intertwined with one's beliefs. For example,
consider a neo-Nazi group conducting a nonviolent march through a predominately
Jewish neighborhood. While the group may have numerous intentions, a fact finder
could certainly conclude (and would probably be correct) that one of the group's
intentions was to make the residents feel threatened. Yet clearly, such a march is
protected under the First Amendment. See Collin v. Smith, 578 F.2d 1197 (7th Cir.
1978).
On the other hand, the situation here involves a much clearer identification of
targeted individuals, by the publication of names and phone numbers, home
addresses and photographs, among highly sensitive personal data.
This
circumstance, plus the device of crossing off the list the names of people who have
been murdered, gives greater credence to the claim that the statements here
constitute "true threats" not protected by the First Amendment.
8
As the Second Circuit stated in Kelner, "[s]o long as the threat on its face and
in the circumstances 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, the statute may be properly applied." 534 F.2d at
1027. 2 The substitution of the vital element of explicitness in the threat for a finding
of specific intent protects the right of free expression, though the circumstances of a
case can provide the evidence necessary to justify a sanction.
Because words alone are the actus reus of the offense of making a threat, it
must be the words -- on their face and in the circumstances of their utterance -- that
defme the crime. Freedom of expression is protected under this view by limiting
punishment of threats to such words, when they are found to be so unequivocal,
unconditional, immediate and specific as to the person threatened, as to convey a
gravity of purpose and imminent prospect of execution.
Such a position is not,
amicus respectfully submits, at variance with this Court's developed standard for
In its ruling on motions for summary judgment, the district court in this case
questioned whether the Second Circuit had consistently adhered to Kelner. While
the charge in the case that engendered such doubt, United States v. Malik, did not
repeat verbatim the Kelner language, the Second Circuit nonetheless found in Malik
that the instructions "substantially followed the language of United States v. Kelner
[by including the statement that] . . . [a]mong other things, you should consider
whether on their face and in the circumstances in which they were made defendant's
statements were so unequivical [sic] unconditional and specific as to convey to the
recipient a gravity of purpose and apparent prospect of execution." 16 F.3d 45, 51
(2nd Cir. 1994). No such charge was given to the jury in the present case.
2
9
fmding "true threats." See, e.g. Lovell v. Poway Unified School District, 90 FJd
367, 372 (9th Cir. 1996). Rather, it urges a refinement or clarification of that
standard, recognizing the risk this standard could be applied -- as the court below
applied it -- against words that are neither facially or explicitly threatening, nor have
been directly conveyed to the persons who claim to have been threatened by them.
In short, amicus does not contend that threatening words such as those
involved in this case are inevitably protected by the First Amendment.
A jury
charged under a standard' such as that of the Kelner case could conceivably find
such words to constitute "true threats," and thus to be within reach of legal
sanctions.
Such a fmding would reflect the jury's conviction that the allegedly
threatening words, judged on their face and in the circumstances, were indeed "so
unequivocal, unconditional, immediate and specific as to the person threatened, as
to convey a gravity of purpose and imminent prospect of execution." Kelner, 534
F.2d at 1027. Such a judgment and the applicable standards must, however, be
appraised under First Amendment standards, and must satisfy those standards,
however menacing the words may seem.
II. WHERE WORDS ALONE ARE THE CLAllv1ED BASIS FOR CIVIL
LIABILITY, THE FIRST AMENDMENT REQUIRES THE FULL
EXERCISE OF A REVIEWING COURT'S INDEPENDENT JUDGMENT.
The need for careful appellate review is the greater in a case, such as this one,
involving words which most members of society may find abhorrent and dangerous.
10
Outspoken anti-abortion advocacy seems intolerable to many thoughtful citizens -­
whether because it would diminish or even extinguish a woman's constitutionally
protected right of choice, or because it is often associated with acts of extreme and
unconscionable violence, or because those who uttered such hateful words have
themselves been perpetrators of such violence.
Yet the temptation to treat such
advocacy as less fully protected than more acceptable messages is as dangerous as it
is understandable. The Supreme Court has reminded us of the hazards of any such
double standard, in, e.g., Madsen v. Women's Health Center, 512 u.S. 753 (1994),
and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997).
At a more basic level, the High Court has cautioned, even with respect to speech
that may be less than fully protected, that "the First Amendment does not permit
[government] . . . to impose special prohibitions on those speakers who express
views on disfavored subjects." R.A. V v. City a/St. Paul, 505 U.S. 377,391 (1992).
The basic principles of free expression clearly transcend both message and
medium. They provide the framework for review of any case in which sanctions are
sought to be imposed against pure speech. That review must reflect, under Bose
Corp. v. Consumers Union, 466 U.S. 485 (1984) an independent assessment of the
constitutional adequacy of the essential elements of the case, and most especially
those that might warrant any departure from full First Amendment protection.
Specifically, whatever initial delegation of issues the applicable statute may appear
11
to invite, the ultimate judgment whether certain words are or are not "threats" may
not be entrusted finally to a jury, but must be fully and independently reviewed by
this Court.
CONCLUSION
F or the foregoing reasons, amicus curiae respectfully urge this Court to
reverse the judgment of the district court, and to remand for further proceedings.
Respectfully submitted,
Robert M. O'Neil
J. Joshua Wheeler
Counsel for Amicus Curiae
12 CERTIFICATE OF C011PLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) and (C), I certify that,
according to the word processing system used to prepare this brief, there are 2,643
words in the brief.
Robert M. O'Neil
Attorney for Amicus Curiae
Thomas Jefferson Center for the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, Virginia 22911
804-295-4784
13 CERTIFICATE OF SERVICE
The undersigned hereby certifies that true and correct copies of the foregoing
Brief of Amicus Curiae were mailed on August 30, 1999, first-class with postage
prepaid, to:
Mario T. Vullo
Counsel for Appellees
Paul Weiss Ritkind Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
212-373-3000
Stephen J. Safranek
Counsel for Appellants
Thomas More Center for Law & Justice
P.O. Box 422
24 Frank Lloyd Wright Drive
Ann Arbor, Michigan 48106
734-930-4407
Christopher A. Ferrara
Counsel for Appellants
50 South Franklin Turnpike
Ramsey, New Jersey 07446
201-236-1799
Robert M. O'Neil
Counsel for Amicus Curiae
14