View PDF Version

No. 02-563

In the Supreme Court of the United States

AMERICAN COALITION OF LIFE ACTIVISTS,
ET AL., PETITIONERS

v.

PLANNED PARENTHOOD OF THE
COLUMBIA/WILLAMETTE, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

THEODORE B. OLSON
Solicitor General
Counsel of Record
MICHAEL CHERTOFF.
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
PATTY MERKAMP STEMLER
Attorney

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners' communications-two posters and a portion of a website-are protected expression under the First Amendment.

2. Whether a public communication that contains no explicit threat can be deemed a "true threat" under the First Amendment because the communication is comparable in content and format to earlier communications by third parties that preceded killings of persons identified in those communications, and a person who made the instant communication would consequently have reasonably foreseen that it would cause the persons named in it to fear for their safety.

3. Whether a website that lists the names of abortion providers, with markings indicating which of those individuals have been killed or wounded, may constitute a "true threat" under the First Amendment.

4. Whether the court of appeals affirmed the jury's liability finding and compensatory damages award based on a theory on which the jury was not instructed.

5. Whether the court of appeals upheld a damages award for public speech based on a negligence standard.

6. Whether the court of appeals applied the correct standard of appellate review in determining whether petitioners' statements were "true threats" under the First Amendment.

7. Whether the district court's injunction is an impermissible restraint on free speech.

In the Supreme Court of the United States

No. 02-563

AMERICAN COALITION OF LIFE ACTIVISTS,
ET AL., PETITIONERS

v.

PLANNED PARENTHOOD OF THE
COLUMBIA/WILLAMETTE, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

This brief is submitted in response to the Court's invitation to the Solicitor General to express the views of the United States.

STATEMENT

Petitioners challenge a damages award and injunction entered against them in a civil action under the Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U.S.C. 248, which proscribes, inter alia, "intentionally * * * intimidat[ing] or interfer[ing] with" a person by "threat of force" because the person is "providing reproductive health services." Petitioners contend that the communications that formed the basis for the judgment against them are political advocacy protected by the First Amendment. The court of appeals held that those comunications are "true threats," which the First Amendment does not protect. In so holding, the court applied a legal standard for distinguishing "true threats" from protected speech that is correct and consistent with this Court's decisions. This case does not, therefore, warrant the Court's review.

1. Petitioners are abortion opponents who published various documents targeting physicians who perform abortions. In January 1995, at a press conference in Washington, D.C., petitioner American Coalition of Life Activists (ACLA) unveiled a poster captioned "GUILTY OF CRIMES AGAINST HUMANITY." Pet. App. 10a. Under the heading "THE DEADLY DOZEN," the poster identified 13 physicians who provided abortions, including three of the respondents, and offered a reward "for information leading to arrest, conviction and revocation of license to practice medicine." Id. at 10a-11a. The poster listed the home addresses of some of the physicians. Ibid. The day after the poster was released, the FBI offered protection to the physicians identified on the poster and advised them to take security precautions. Id. at 11a. The poster was reprinted in a magazine and a newsletter published by petitioners and was displayed at other ACLA events. Ibid.

Later that year, ACLA unveiled six posters at an event in St. Louis, including one directed at respondent Dr. Robert Crist. Pet. App. 11a. The Crist poster, captioned "GUILTY OF CRIMES AGAINST HUMANITY," contained Crist's photograph and his work and home addresses, and stated, "Please write, leaflet or picket his neighborhood to expose his blood guilt." Id. at 11a, 116a. The poster offered a reward "to any ACLA organization that successfully persuades Crist to turn from his child killing through activities within ACLA guidelines." Id. at 11a. The poster had "Abortionist" in large bold type at the bottom. Ibid.

In January 1996, in connection with an event honoring individuals incarcerated for anti-abortion violence, petitioners released the "Nuremberg Files," a collection of information about approximately 200 abortion providers (including four of the respondents) and approximately 200 others identified as abortion supporters, including judges (among them six current or former Members of this Court), politicians, and abortion-rights activists. Pet. App. 11a, 193a; Lodging 37-41. ACLA stated that the names, photographs, and addresses of individuals were being collected in order to hold trials in "perfectly legal courts once the tide of this nation's opinion turns against the wanton slaughter of God's children." Pet. App. 116a-117a. Petitioners gave the Nuremberg Files to an anti-abortion activist, who posted them on an internet website. Id. at 11a. On the website, the names of physicians who had been murdered were crossed out, the names of physicians who had been wounded were printed in gray type, and the names of physicians continuing to perform abortions were printed in black type. A legend explained the meaning of those distinctions. Id. at 11a-12a, 32a-33a, 125a n.2, 138a; Lodging 19-25.

Neither the posters nor the Nuremberg Files contained any explicitly threatening language. Pet. App. 39a, 54a, 190a. The physicians who were the subjects of the posters and the Nuremberg Files nonetheless feared for their safety, because the personal information and photographs made them easily identifiable and because three other physicians had recently been killed after they were identified in similar posters. Id. at 32a, 222a-223a. In 1993, Dr. David Gunn, a physician who previously had appeared on "WANTED" and "unWANTED" posters containing his name, address, and photograph, was shot and killed by an abortion opponent. Id. at 9a. In 1994, Dr. John Bayard Britton was murdered by an abortion opponent, Paul Hill, who had helped to make "unWANTED" posters containing Dr. Britton's home and work addresses and photograph. Id. at 9a, 141a-142a. Dr. George Patterson, a third physician who had appeared on a "WANTED" poster, was shot and killed in 1993, although the motive for the killing is unknown. Id. at 9a, 55a.1

Petitioners were aware of the fear that the posters generated among physicians who appeared on them. For example, petitioner Charles Wysong stated that one of the "two things" that physicians who quit performing abortions "feared the most" was "having their picture put on a poster." Pet. App. 12a. Petitioner Michael Bray stated that a physician who quit performing abortions after having appeared on a "Not Wanted" poster did so because he was "bothered and afraid." Ibid. And petitioner Andrew Burnett stated, with respect to the impact of "Wanted" and "Guilty" posters, "if I was an abortionist, I would be afraid." Ibid.

2. Respondents filed suit alleging, inter alia, that the posters and Nuremberg Files were unlawful threats of force under the FACE Act, 18 U.S.C. 248. Pet. App. 6a-7a. The FACE Act provides civil remedies as well as criminal penalties against anyone who

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.

18 U.S.C. 248(a)(1).

At the end of trial, the district court instructed the jury that, in order to find petitioners liable under the FACE Act, it would have to find (1) that the Deadly Dozen poster, the Crist poster, or the Nuremberg Files list was a "true threat" such that "a reasonable person making the statement would foresee that the statement would be interpreted by those to whom it is communicated as a serious expression of an intent to bodily harm or assault" (Pet. App. 33a), and (2) that each petitioner made a true threat "to intimidate or interfere with" respondents or other persons because they were providing reproductive health services (1/26/99 Tr. 19).

The jury found petitioners liable and awarded $526,336 in compensatory damages against each petitioner and a total of $108.5 million in punitive damages on the FACE Act claims. Pet. App. 7a, 46a n.4. The district court entered an injunction prohibiting petitioners from distributing or reproducing certain materials, including the Deadly Dozen and Crist posters, with the specific intent to threaten the respondents. The injunction also required petitioners to turn over all copies of those materials in their possession, except that their attorneys were permitted to retain one copy of any item in the record. Id. at 13a, 43a, 181a-183a.

3. A panel of the Ninth Circuit vacated the judgment, concluding that the two posters and the Nuremberg files were not true threats. Pet. App. 116a-125a.

4. The Ninth Circuit reheard the case en banc and affirmed the judgment of liability, the compensatory damages award, and the injunction, but remanded for a determination whether the punitive damages award comported with due process. Pet. App. 6a-52a.

The court explained that the First Amendment distinguishes between advocacy of violence, which is protected, and true threats of violence, which are not protected. Pet. App. 22a. The court defined a true threat as "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person." Id. at 28a. The court declined to incorporate into that definition a requirement that the speaker act with the specific intent to threaten, noting that such a requirement "is subsumed within the statutory standard of FACE itself, which requires that the threat of force be made with the intent to intimidate." Id. at 27a. The court also rejected the argument that "threatening speech made in public is entitled to heightened constitutional protection." Id. at 28a.

The court then concluded, based on its "independent[]" review of the record, that the Deadly Dozen poster, the Crist poster, and the Nuremberg Files "scorecard" were true threats when viewed in context. Pet. App. 39a-43a. The court noted that, by the time petitioners published the Deadly Dozen and Crist posters, "the poster format itself had acquired currency as a death threat for abortion providers," because "Gunn was killed after his poster was released; Britton was killed after his poster was released; and Patterson was killed after his poster was released." Id. at 32a. The court found that the posters sent the message to abortion providers that "You're Wanted or You're Guilty; You'll be shot or killed," and that the message "was reinforced by the scorecard in the Nuremberg Files" noting which physicians had been killed or wounded. Id. at 40a. The court also found that petitioners were aware of the "fear of serious harm" generated among abortion providers who were "singled out for identification on a 'wanted'-type poster," and that petitioners "deliberately identified" the respondent physicians on such posters "to intimidate them." Id. at 32a, 39a-40a.

Finally, the court upheld the injunction. Pet. App. 43a-44a. The court rejected petitioners' challenge to the prohibition against possessing the Deadly Dozen poster and the Crist poster, reasoning that "[t]he First Amendment interest in retaining possession of the threatening posters is de minimis, while ACLA's continued possession of them constitutes part of the threat." Id. at 43a.

5. Judge Kozinski, Judge Berzon, and Judge Reinhardt filed separate dissents.

Judge Kozinski (joined by Judges Reinhardt, O'Scannlain, Kleinfeld, and Berzon) agreed with the majority's definition of a true threat, but disagreed that the definition was satisfied on the record of this case. Pet. App. 53a. He understood that definition to require that a true threat "send the message that the speakers themselves-or individuals acting in concert with them-will engage in physical violence." Id. at 56a. Surveying the evidence, he concluded that petitioners' posters were protected expression because, at most, they could be viewed as "a call to arms for other abortion protesters to harm plaintiffs." Id. at 57a.

Judge Berzon (joined by Judges Reinhardt, Kozinski, and Kleinfeld) argued that a statement made "in the public protest context" amounts to a true threat only when the speaker subjectively intends to communicate an unequivocal threat and the statement is reasonably understood as an unequivocal threat. Pet. App. 82a-85a. She concluded that petitioners' statements were not so unequivocal as to satisfy that standard. Id. at 87a.

Judge Reinhardt took issue with the majority's refusal to distinguish between public and private threats. He argued that greater First Amendment protection should be accorded to threats made "in a political forum on issues of public concern" than to "[p]rivate threats delivered one-on-one." Pet. App. 52a.

DISCUSSION

The court of appeals articulated a First Amendment standard that correctly distinguishes between protected advocacy and unprotected threats. The court's definition of a "true threat"-a communication that a reasonable speaker would foresee would be understood as a serious expression of intent to inflict bodily harm -accords with the definition applied by other courts of appeals under various federal statutes. The United States advances that same standard in its criminal threats prosecutions.

The court of appeals did not adopt a "novel notion of actionable threats" (Pet. 12) in concluding that petitioners' posters were proscribable not because of the particular words that they used, but because of their "wanted-style" format, which "had acquired currency as a death threat for abortion providers." Pet. App. 32a. To the contrary, the court adhered to the settled practice, reflected in this Court's decisions, of considering the entire context in which a communication is made in order to determine whether it is a true threat. The circumstances surrounding the issuance of petitioners' posters notably included the three recent murders of other abortion providers who had been the subjects of similar "wanted-style" posters. It was entirely appropriate for the court to consider whether a reasonable speaker would foresee that the posters, in that context, would be understood by the abortion providers named in them as a serious threat of bodily harm.

This case is not a suitable vehicle to address the other principal question presented by petitioners: whether, contrary to the uniform approach of the courts of appeals, the definition of a true threat should include a subjective as well as an objective component. The court of appeals' refusal to incorporate into its true threats standard a requirement that the speaker intended to make a threat could not have affected the outcome of this case. The FACE Act, the statute under which petitioners were held liable for their threats, requires that the defendant act with the intent to injure, intimidate, or interfere with a person, and the jury was instructed in accordance with that requirement.

Nor do petitioners identify any other question of general importance presented by this case. And, although reasonable judges could (and did) disagree about whether the definition of a true threat was satisfied on the record here, such disagreements do not merit this Court's review. The petition should, therefore, be denied.

1. The First Amendment does not protect "threats of violence," R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992), to the extent that they constitute "true" threats. Watts v. United States, 394 U.S. 705, 707-708 (1969) (per curiam). A true threat is a statement that "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 123 S. Ct. 1536, 1548 (2003). Such threats are proscribable, notwithstanding any possible political content, 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." R.A.V., 505 U.S. at 388.

Context is crucial in determining whether a true threat has been made. The particular language used is not dispositive. Thus, the Court has recognized that "veiled threats" as well as explicit threats may constitutionally be proscribed. Madsen v. Women's Health Center, Inc., 512 U.S. 753, 773 (1994). The Court has also recognized that true threats may take the form of expressive conduct such as cross burning. Black, 123 S. Ct. at 1549. Conversely, a statement that contains explicitly threatening language may, in context, be understood to be mere "political hyperbole." Watts, 394 U.S. at 708; cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

b. The court of appeals recognized that neither the Deadly Dozen poster, the Crist poster, nor the Nuremberg Files list "contains any language that is overtly threatening." Pet. App. 39a. The court also recognized, however, that a communication that is not threatening on its face may, in context, be understood as a true threat. Accordingly, the court applied a standard that considered whether a reasonable person, "in the entire context and under all the circumstances," would foresee that the posters and list would be interpreted by respondents "as a serious expression of intent to inflict bodily harm upon [them]." Id. at 28a.

The court of appeals stated the correct legal standard, which is consistent with the position that the government takes in its prosecutions under various threats statutes.2 Judge Kozinski's dissenting opinion, which was joined by all of the dissenting judges on the court of appeals, acknowledged that the standard articulated by the majority was "correct[]." Pet. App. 53a.3 Other courts of appeals have adopted generally similar formulations.4

Contrary to petitioners' contention (Pet. 24), there is no conflict between the Ninth Circuit's standard and that of the Second Circuit that warrants this Court's review. The Second Circuit, like the Ninth Circuit, has adopted an objective test for threats, under which the purpose of the inquiry is to separate statements made in jest or "political hyperbole" from "true threats." United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999) (the government need prove only that the circumstances of the communication "were such that an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury"). The Second Circuit has added a gloss that, to be a "true threat," the statement must be sufficiently "unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." Ibid. (quoting United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.), cert. denied, 429 U.S. 1022 (1976)). But there is no reason to conclude that the Second Circuit would reach any different result under that test than did the court of appeals here.5

2. Petitioners contend that the court of appeals erred in concluding that a true threat could result from the similarity in "format" between their "wanted-type" posters and earlier posters that preceded the murders of Drs. Gunn, Britton, and Patterson. See Pet. 12-21. They contend that it is "First Amendment nonsense" to suggest that the same "message" would be protected if "conveyed orally in a public speech" but not if conveyed in a "'wanted-style' poster." Pet. 14.

Petitioners' argument rests on the erroneous premise that a change in "format" cannot produce a change in "message." The choice of one format over another for presenting a message can dramatically alter the implication and meaning of words that are common to both formats. The court of appeals concluded that petitioners' choice of the "wanted-style" poster format had that effect. The court found that, by the time that petitioners chose to target the respondent physicians in "wanted-style" posters (instead of, or in addition to, public speeches), "the poster format itself had acquired currency as a death threat for abortion providers" as a result of the three recent murders. Pet. App. 32a; see id. at 40a (concluding that the poster format sent the message to abortion providers that "You're Wanted or You're Guilty; You'll be shot or killed").

There is nothing novel about a court's considering, as part of the context in which a communication was made, whether previous similar communications were followed by violence. It is self-evident that words or symbols that have come to be associated with violence may be particularly effective tools of intimidation. This Court recognized as much in Virginia v. Black. There, the Court explained that cross burning, "in light of [its] long and pernicious history as a signal of impending violence," is among "those forms of intimidation that are most likely to inspire fear of bodily harm." 123 S. Ct. at 1549-1550. It was for that reason that the Commonwealth was held not to have engaged in impermissible content discrimination by outlawing cross burning with the intent to intimidate without outlawing all other forms of intimidating expression. Ibid.

"Wanted-style" posters targeting abortion providers do not have as extensive an association with violence as does cross burning; for example, at the time of the events at issue here, only three abortion providers had been killed after the issuance of posters identifying them, and other abortion providers identified in such posters had not been killed or wounded. (Nonetheless, even at a time when only three cross burnings had been followed by lynchings or other violence, and many other cross burnings had not, the target of a cross burning might reasonably have perceived a threat.) The court of appeals concluded, however, that the association was sufficiently strong, in the wake of the three recent murders of abortion providers, to cause such posters to be understood as a serious expression of intent to inflict bodily harm. Whether or not there is room for disagreement about that conclusion, this Court does not sit to review the lower courts' application of correctly stated legal standards.

3. Petitioners further contend that the court of appeals erred in declining to incorporate into its true threats standard a requirement that the speaker "specifically intended" to make a threat. Pet. 22. Instead, petitioners argue, the court of appeals applied a "negligence standard." Ibid.; see Pet. 21-25. As the court of appeals recognized, however, "[o]ther circuits are in accord" with its objective standard, which considers how a statement would be understood by a reasonable speaker (or, in some cases, a reasonable listener). Pet. App. 27a; see note 4, supra. Those courts have recognized that an objective standard avoids difficult inquiries into subjective intent, and assures protection against the fear and disruption associated with statements reasonably understood as serious threats, whether or not a threat was intended. See, e.g., United States v. Kosma, 951 F.2d 549, 556-557 (3d Cir. 1991). This Court recently denied certiorari in a case challenging the objective approach. See Morales v. United States, 536 U.S. 941 (2002) (No. 01-8544).6

The case is not a suitable vehicle in which to consider whether the jury should have been required to find an intent to threaten, since the jury was required to find an essentially identical intent to intimidate or interfere with respondents or others. The FACE Act, the statute under which petitioners were found liable, does not prohibit threats simpliciter; rather, the Act prohibits "intentionally injur[ing], intimidat[ing], or interfer[ing] with" any person by, inter alia, the "threat of force." 18 U.S.C. 248(a)(1). The court of appeals thus understood that the FACE Act itself required that petitioners be found to have made threats with "the intent to intimidate." Pet. App. 27a, 34a. The district court's instructions to the jury were consistent with that understanding. See 1/26/99 Tr. 19 (instructing jury to consider whether each petitioner made "a threat of force to intimidate or interfere with, or attempt to intimidate or interfere with" respondents or other persons) (quoted at Pet. App. 34a). An intent to intimidate- defined by the district court as "to place a person in reasonable apprehension of bodily harm," 1/26/99 Tr. 19-is virtually identical to an intent to threaten. An intent to interfere-defined as "to restrict[] a person's freedom of movement," ibid.-is also analogous to an intent to threaten where, as here, the actus reus is making a "threat of force."

4. Petitioners argue (Pet. 16, 24-25) that the court of appeals' true threats standard is inconsistent with Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam), which held that advocacy of violence may be proscribed only if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg was not, however, a threats case. This Court has never suggested that true threats should be subject to Brandenburg's imminence requirement; to the contrary, the Court has characterized true threats and incitement as separate categories of proscribable expression. See Black, 123 S. Ct. at 1547-1548.

Moreover, because the harms that justify the prohibition of incitement and true threats are different in nature, there is no reason to import an imminence requirement into the true threats analysis. Incitement may be proscribed in order to prevent violence that would erupt before passions have had time to cool. See Brandenburg, 395 U.S. at 448. In contrast, true threats may be proscribed 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." R.A.V., 505 U.S. at 388. As Judge Berzon explained (Pet. App. 82a), those harms may be intensified and prolonged when the speaker refuses to specify when the threatened violence can be expected.

5. Nor are petitioners correct in claiming (Pet. 16-20) that the court of appeals' decision conflicts with Claiborne Hardware. As the court explained, while some of the statements in that case (including one that made reference to breaking necks) could have been understood as threats in some contexts, "there was no context to give" the statements "the implication of authorizing or directly threatening unlawful conduct." Pet. App. 25a. The court noted that the statements were "extemporaneous," were "surrounded by statements supporting non-violent action," did not single out specific individuals, were not similar to statements that preceded violence in the past, and were not understood by boycott violators as a serious threat of bodily harm. Ibid. All of those considerations distinguish Claiborne Hardware from this case.

6. Petitioners argue (Pet. 15) that the court of appeals erred in adopting a true threats standard that does not consider whether a statement was made publicly or privately. To the contrary, the court's standard, which considers whether one would reasonably expect a statement to be understood "in the entire context" as a "serious expression of intent to inflict bodily harm," adequately accounts for distinctions between public and private speech. Pet. App. 28a. As the court recognized, "a privately communicated threat is generally more likely to be taken seriously than a diffuse public one," id. at 41a, and thus is generally more likely to satisfy that standard.

There is no need to alter the legal standard itself, however, to accord greater protection to "specifically targeted" threats, Pet. App. 41a, simply because they have been clothed in political rhetoric and displayed to the world at large. Indeed, such threats may inspire particularly intense fear among their victims, given the enhanced "possibility that the threatened violence will occur," R.A.V., 505 U.S. at 388, if not at the speaker's hands, then at the hands of one who heard the threat.

7. None of petitioners' other challenges to the court of appeals' decision warrants review.

Petitioners claim (Pet. 25-26) that the court of appeals affirmed their FACE Act liability on a "theory" different from the one presented to the jury. The court of appeals, however, applied the same true threats standard that the jury was instructed to apply and considered the same posters and list that the jury was instructed to consider. Compare Pet. App. 28a with 1/26/99 Tr. 14-18. In any event, the claim, whether or not meritorious, is wholly without significance outside this case.

Petitioners also contend (Pet. 26-30) that the court of appeals did not engage in "independent review" of the evidence bearing on whether their posters and list were true threats. The court of appeals explicitly stated, however, that "we review the evidence on true threats independently." Pet. App. 39a; see id. at 20a. The dissenting judges agreed that the majority stated the correct standard of appellate review. Id. at 54a.

Finally, petitioners argue (Pet. 30), in cursory fashion, that the district court's injunction is an impermissible restraint on protected speech. Petitioners' failure to articulate the precise basis for their argument is itself a sufficient reason to decline review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General
Counsel of Record
MICHAEL CHERTOFF.
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
PATTY MERKAMP STEMLER
Attorney

MAY 2003

1 After the killing of Dr. Gunn, petitioner Michael Bray and Paul Hill prepared a petition urging the killer's acquittal on justifiable homicide grounds, which was joined by seven other individual petitioners and petitioner ALM. Pet. App. 9a, 140a- 141a. After the killing of Dr. Britton, six individual petitioners and ALM signed a similar petition calling for the killer's acquittal. Id. at 9a-10a, 142a. When Hill was convicted of the killing, petitioner ALM praised Hill and encouraged others to emulate him as a "hero." Id. at 142a.

2 See, e.g., Gov't Br. in Opp. at 4, Morales v. United States, No. 01-8544; Gov't Br. in Opp. at 4, Ogren v. United States, No. 01-190; Gov't Br. in Opp. at 4, Murillo v. United States, No. 00-7592; Gov't Br. in Opp. at 4, Viefhaus v. United States, No. 98-8689; see also Rogers v. United States, 422 U.S. 35, 46-47 (1975) (Marshall, J., concurring) (describing government's position).

3 Judge Kozinski's dissent took issue not with the majority's articulation of the applicable legal standard, but with its application of that standard to the evidence in the record. In particular, Judge Kozinski concluded that the evidence did not establish, as he understood the majority's standard to require, that petitioners' posters and list conveyed the message that petitioners themselves or persons acting in concert with them would inflict bodily harm on respondents. See Pet. App. 57a. The majority described the evidence as sufficient in that regard. See id. at 8a ("the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA's intent to harm them"); id. at 40a ("Physicians could well believe that ACLA would make good on the threat."). Petitioners do not appear to seek review of the court of appeals' decision on the sufficiency grounds stated in Judge Kozinski's dissent. Accordingly, this case provides no occasion to consider whether a threat that an unrelated third party will commit violence against the victim may constitutionally be proscribed.

4 See, e.g., United States v. Saunders, 166 F.3d 907, 912-914 (7th Cir. 1999); United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994); United States v. Malik, 16 F.3d 45, 48 (2d Cir.), cert. denied, 513 U.S. 968 (1994); United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990); United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984), cert. denied, 470 U.S. 1006 (1985); cf. United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001). The courts of appeals mainly differ only with regard to whether the statement is considered from the perspective of a reasonable speaker or a reasonable listener. It is only in the unusual case that such a difference in approach might produce a difference in outcome.

5 In New York ex rel.Spitzer v. Operation Rescue National, 273 F.3d 184, 196 (2d Cir. 2001), the court of appeals indicated that certain statements made by abortion protestors to physicians who performed abortions (such as the statement, following the killing of one doctor, that "killing babies is no different than killing doctors") constituted protected expression under the Kelner standard. But the court distinguished that case from situations involving a "direct or even veiled threat," id. at 197, and it has never found speech to be protected where, as was the case with the posters here, the communications identified specific persons and the communications foreseeably generated intense fear in light of their resemblance to past similar communications naming persons who later were killed. Cf. Francis, 164 F.3d at 123 (emphasizing that "context of the communication" is critical); Kelner, 534 F.2d at 1026 (affirming conviction for a threat to kill an individual upon his arrival in New York).

6 While the Court stated in Virginia v. Black that "'[t]rue threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," 123 S. Ct. at 1548 (emphasis added), the Court was not asked to (and did not) decide whether the true threats standard is an objective one or a subjective one (or both). Since the Virginia law at issue required an intent to intimidate, the question was not squarely presented. The same is true here.