Home › Case briefs › Constitutional Law

Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists

United States Court of Appeals for the Ninth Circuit · 2002 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of Access to Clinic Entrances ActFACEtrue threatsFirst Amendmentthreat of forceintent to intimidate

Facts

ACLA published two 'GUILTY' posters identifying abortion providers, including Crist, Hern, and the Newhalls, and helped place these doctors in the 'Nuremberg Files,' which marked wounded and dead abortion providers by greying out or striking through names. The posters were circulated after earlier 'WANTED' or 'unWANTED' posters had identified doctors David Gunn, George Patterson, and John Britton before each was killed. By the time ACLA published the posters, it knew such posters frightened abortion providers and were understood within that community as signaling deadly violence. The named physicians, who also knew the earlier pattern, took the posters and Files as serious threats of death or bodily harm and changed their behavior accordingly.

Issue

What does FACE mean by a 'threat of force,' and does the First Amendment permit liability for these posters and the Nuremberg Files where the materials did not contain explicit threatening language on their face? More specifically, could the jury treat the statements as true threats based on context and the surrounding pattern of prior posters followed by murders?

Rule

For purposes of FACE, a 'threat of force' is a true threat: a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom it is communicated as a serious expression of intent to harm or assault. Context may be considered, subtle threats qualify, and FACE's separate requirement that the threat be made with intent to intimidate supplies the necessary intent element; no additional subjective intent to carry out the threat is required.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Wichita, an anti-abortion organization called Prairie Justice Network posts a glossy flyer labeling Dr. Lena Ortiz "ACCOUNTABLE" and listing her clinic address and neighborhood. The flyer contains no words threatening violence, but in that city three earlier "ACCOUNTABLE" flyers about named abortion providers had each been followed by shootings, a pattern the group’s leaders knew well.

If Dr. Ortiz sues under FACE, what is the strongest argument that the flyer is an unprotected true threat?

Explanation. Under the majority rule, a 'threat of force' under FACE means a true threat: a statement that, in its full context and under all the circumstances, a reasonable person would foresee would be interpreted by its recipient as a serious expression of intent to harm or assault. Explicit threatening words are unnecessary; subtle threats may qualify when context supplies the meaning. FACE’s own requirement that the threat be made with intent to intimidate supplies the needed intent element, so no additional proof of subjective intent to carry out violence is required.