Janurary/Feburary, 1999 Volume XIII Number 4
Pro-life leaders on trial in RICO and FACE federal lawsuit;
Portland, OR - The federal trial of 14 pro-life leaders from across the country is scheduled to begin Thursday, January 7 in the United States District Court in Oregon (the 9th Circuit) before Judge Robert E. Jones.
Freedom of speech at stake in unprecedented case
This case may rival NOW v. Scheidler in the danger it poses to the First Amendment," noted Paul deParrie, an activist with Advocates for Life Ministries, one of the defendant organizations. "In Scheidler, rescues and even some property damage was alleged. Here there are only two pieces of paper and a website."
The trial is expected to last two to three weeks.
The case, Planned Parenthood of Columbia/Willamette, Inc. et. al. v. the American Coalition of Life Activists, et. al. was filed nearly three years ago against some of the nation's most well-known pro-life leaders, including Don Treshman of Rescue America, Monica Migliorino Miller of Citizens for a Pro-life Society, Joseph Foreman a former leader of Operation Rescue and Missionaries to the Preborn, and Andrew Burnett of Advocates for Life Ministries.
Besides Planned Parenthood, the plaintiffs include Portland Feminist Women's Health Center and five abortionists such as late term abortionist Warren Hern of Boulder, Colorado and Robert Crist of Kansas.
In April 1997 a 22 year old woman died following an abortion performed upon her by Crist in St. Louis. Seven lawsuits have been filed against Crist related to his abortion practice.
The plaintiffs accuse the defendants of violating the federal Racketeer Influenced and Corrupt Organizations Act (RICO), the Freedom of Access to Clinic Entrances Act (FACE) and Oregon RICO. They are seeking 700 million dollars in punitive damages and an injunction that would suppress pro-life speech.
Background of the case
In January 1995, the American Coalition of Life Activists (ACLA) sponsored a pro-life conference in Arlington, Virginia, which coincided with the annual March for Life in Washington D.C.
During a press conference defendants distributed a flyer. It stated "Guilty of Crimes Against Humanity" below which was noted Allied Control No. 10 which is the authority under which Nazi war crimes were prosecuted at Nuremberg which the document stated included abortion.
Following this was a list of 13 abortionists, some of whom had their home addresses next to their names. The document asked for information that would lead to the revocation of the abortionists' licenses to practice medicine and offered a $5000 reward for information that resulted in the revocation of any of the licenses.
A second flyer was distributed at an ACLA conference in August 1995. This flyer featured abortionist Robert Crist. It stated "Guilty of Crimes Against Humanity" followed by the statement regarding the Nuremberg trials. Crist's photo appeared on the flyer with his home address and the address of the abortion center where he worked. The flyer read that Crist is "a notorious Kansas City abortionist who travels to St. Louis weekly to kill babies at Reproductive Heath Services ... he also kills women."
The flyer asked people to "please write, leaflet or picket his neighborhood to expose his blood guilt. Ask Crist to turn from killing and injuring women and children, to helping and healing those in need." It offered a $500 dollar reward to anyone who successfully persuaded Crist to turn from his "child killing through activities within ACLA guidelines."
ACLA guidelines specified specify that only legal and non-violent means be used.
The final document is called the Nuremberg Files which was not an ACLA sponsored project, thus technically does not belong in this case. The files were compiled by a non-ACLA member who is also not a defendant in the case. The purpose of the Nuremberg Files project, according to owner Neal Horsley is to gather incriminating information on abortionists so that when abortion becomes illegal there would be evidence to try abortionists in "perfectly legal courts," as stated in the preamble to the Files. The Files were placed on the Internet in 1997.
ACLA has a stated policy of non-violence
The documents at issue in the case are not threats to do abortionists bodily harm as the plaintiffs claim. The defendants never intended these documents to be threats of physical harm. The documents are protected speech. In fact, the ACLA has a stated policy of non-violence in its constitution and required anyone who participated in its activities to sign a pledge of non-violence. Furthermore, several defendants signed a statement of non-violence. Even Judge Jones acknowledged in his denial of defendants' summary judgment that the "statements [of defendants] do not contain any expressly or apparently threatening language." The Oregon ACLU, which submitted motions in the case, agreed with the defendants that "the statements at issue are facially innocuous, i.e., contain no express threats or even ambiguously threatening language."
Oddly, though, the Oregon ACLU still maintained that the case had merit.
"If this had been about homosexual rights activists or tree huggers, the opinion would have been different," said deParrie. "These are the same people who defend rap lyrics which encourage rape and murder and say that they are not threats or incitement. When it comes to pro-lifers, it seems there is a second level of freedom of speech - none!"
The case goes forward on a skewed and false premise
This PP v. ACLU case is unprecedented in the history of American jurisprudence. "Threats" cases have always involved threats that are unambiguous or contain at least subtle language. When the language itself can be construed as a threat only then is the context of the threatening language to be considered which may shed light on the meaning of the language. In this case there is no threatening language. The case will be tried, contrary to existing case law, based entirely upon the context of language which is non-threatening.
Furthermore, the abortionist plaintiffs dropped the incitement portion of their complaint yet there still exists a real danger that, because of the way plaintiffs are permitted to argue context, incitement to violence, and threats to do violence will be entirely blurred and confuse the jury on the legal facts of the case. The plaintiffs were forced to drop the incitement to violence portion of the case because absolutely no violence occurred to them as a result of the documents in question which is a necessary component of an "incitement to violence" charge.
This case attacks freedom of speech
According to the pro-life defendants abortionists are guilty of crimes against humanity. Abortion was tried at Nuremberg as a war crime--not only forced abortion but abortions that were "encouraged" by the Nazis-to reduce non-Aryan populations. This was completely contrary to the existing laws that protected the right to life of the Unborn in nations invaded by the Germans.
According to all previous case law, defendants should have a right to gather information about abortionists that would lead to the revocation of their licenses and encourage the gathering of information by offering a monetary reward.
The Crist poster encouraged no more than writing, leafleting, and picketing which are all constitutionally protected activities. The flyers and activities they encourage are standard tools used in several social justice causes. And certainly defendants can provide ample evidence that abortion is an atrocity.
Defendant Monica Migliorino Miller provided photographs of dismembered Unborn children killed by legal abortion whose bodies she personally retrieved from trash bins, as exhibits in this case. Judge Jones ruled that the jury may not see the photos as they are too prejudicial to the abortionist plaintiffs. He also ruled that defendants may not describe abortion procedures as even those descriptions may prove too prejudicial to the plaintiffs. In other words, as in most cases involving abortion and pro-life defendants, the actual reality of abortion is hidden by the legal system.
If the plaintiffs succeed in achieving a conviction, 14 pro-lifers will be named as racketeers for simply disseminating disturbing, controversial, rhetorically provocative, yet perfectly legitimate political literature.
Abortion is without question the most important and controversial moral issue of our day. The abortion industry wishes to suppress pro-life speech that pro-lifers used to expose the reality of abortion.
A defendant dropped from the case, Dr. Monica Miller said, "They believe no one should be able to criticize them, name them or frame the issue in such a way that shows abortionists are responsible for the torture and murder of innocent human beings."
The strange ways of the ACLU
Portland, OR - The involvement - and lack of it - in the Planned Parenthood v. ACLA case is strange.
When the case was first filed, Advocates for Life Ministries (AFLM) contacted first the Oregon ACLU, then the national ACLU about the possibility of representing the pro-life activists and their First Amendment rights.
An article in Portland's Oregonian in November 1995 records the fact that the ACLU declined to become involved. One AFLM staffer was told that there was "a bright, yellow line" that had been crossed by the pro-lifers, but also the ACLU declined to point out where this line was.
Dave Fidanque, the director of the Oregon ACLU (who is not a lawyer) stated, "The First Amendment cannot be used as a shield by individuals who engage in violent acts or who solicit others to engage in violence."
At this time, the original complaint claimed that there was a direct connection between the pro-life defendant's activities and specific attacks and threats on abortionists.
Fidanque also stated that "there will not necessarily be any conflict" between the ACLU's free speech position and their strong advocacy of abortion.
However, former ACLU headliner, Alan Dershwitz once noted that the reason the ACLU declined to defend free speech for abortion protesters was because the majority of their funding comes from the organization's Reproductive Freedom Project.
Three years down the road, Judge Robert E. Jones, who presides over the case, asked the ACLU to supply amicus - or "friend of the court" - briefs on the dismissal motion filed by the pro-life defendants.
By this time, Planned Parenthood had backed down its complaint. They no longer alleged any direct connection between the pro-life activities and any specific attacks or threats. PP even acknowledged that none of the ACLA documents at issue, contained either an explicit or an ambiguous threat - just that the abortionists felt threatened.
Enter the ACLU's Michael Simon. In his amicus brief, he also states that there are no explicit or implicit threatening language in the ACLA documents. Yet, after more than a dozen torturous pages (minus any "bright, yellow line"), Simon manages to say that the documents may still be construed as a threat.
Light dawned on this theory of law when the national ACLU, in the wake of the shooting of abortionist Barnett Slepian, spewed forth a press release proclaiming that "when abortion is described as 'murder' and fetuses are characterized as 'babies,' the result is violence against abortion providers [sic] and clinics."
This is the same ACLU which fought against liability for rap musicians and their record companies when fans obeyed explicit calls by the singers to rape women and murder police officers. They claim that the commands of the rap musicians did not "cause" the listeners to commit crimes.
Evidently, the ACLU standard is that pro-life words like "baby" cause violence, but rappers' words do not.
Additionally, the ACLU is already defending one of the abortionists, Warren Hern, in a separate suit. Hern is being sued for lying and having a pro-life activist thrown in a mental hostpitol for 45 days. The ACLU says the suit violates Hern's freedom of speech. Normally, such things are regarded as a conflict of interest.
Meanwhile, the judge has asked the ACLU to continue to "assist the court as an impartial party" by drawing up jury instructions for the end of the trial.
Speech in peril
Pro-lifer gives pro-aborts “a devil of a time”