Columbia/Willamette v. Amer Coal of Life Activists, Civil No. 95-1671-JO

• Citation: 23 F.Supp.2d 1182
• Decision Date: 14 October 1998
• Docket Number: Civil No. 95-1671-JO
• Parties: PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE, INC.; et al., Plaintiffs, v. AMERICAN COALITION OF LIFE ACTIVISTS; et al., Defendants.
• Court: U.S. District Court — District of Oregon

23 F.Supp.2d 1182

PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE, INC.; et al., Plaintiffs, v. AMERICAN COALITION OF LIFE ACTIVISTS; et al., Defendants.

Civil No. 95-1671-JO

United States District Court, D. Oregon.

October 14, 1998.

Carol J. Bernick, Davis Wright Tremaine, Portland, OR, Stephen S. Walters, Stoel Rives, Portland, OR, Maria T. Vullo, Paul Weiss Rifkind Wharton & Garrison, New York City, Roger Evans, Planned Parenthood Federation of America, Inc., New York City, for Plaintiffs.

William D. Bailey, Bailey & Wolfe, Portland, OR, David T. Daulton, Berean Law Group, Norfolk, VA, Kevin L. Gibbs, Olmstead

Gibbs & Harper, Seattle, WA, Mark Belz, Belz & Jones, St. Louis, MO, Norman L. Lindstedt, Lindstedt & Buono, Portland, OR, Michael P. Tierney, John M. McSherry, Legal Center for the Defense of Life, New York City, Chris Ferrara, American Catholic Lawyers Association, Fairfield, NJ, for Defendants.

Michael H. Simon, Andrew J. Bowman, Chin See Ming, Perkins Coie, Portland, OR, for amicus curiae American Civil Liberties Union Foundation of Oregon.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

Plaintiffs Planned Parenthood of the Columbia/Willamette, Inc., Portland Feminist Women's Health Center, and five individual physicians¹ who provide abortions as part of their medical practices (together, "plaintiffs") brought this action against the American Coalition of Life Activists, Advocates for Life Ministries, and fourteen individual anti-abortion activists² (together, "defendants"), seeking damages and injunctive relief for defendants' alleged violation of the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, and the Oregon Racketeer Influenced and Corrupt Organizations Act ("ORICO"), O.R.S. 166.720.³

In September 1996, I made numerous rulings in this action on defendants' Rule 12(b) motions to dismiss. In essence, with the exception of the RICO and ORICO claims against defendant Bray, I permitted plaintiffs to proceed on all their claims, subject to my renewed scrutiny on appropriate motion for summary judgment. See Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 945 F.Supp. 1355, 1378-79 (D.Or.1996) ("Planned Parenthood I"). Since then, the parties have been engaged in and have completed extensive discovery.

The case is now before me on the defendants' motions for summary judgment (è203, 206, 211). In addition to the parties' excellent and thorough submissions and arguments, the ACLU Foundation of Oregon, Inc., as amicus curiae, filed an informative and helpful brief and participated at oral argument. I have considered the record and the arguments of counsel, and conclude that defendants' motions must be denied, with the exceptions noted below. I also agree with plaintiffs that, based upon the factual record now before the court, defendant Bray should be reinstated as a defendant to plaintiffs' federal and state RICO claims.⁴

STANDARD

Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989).

The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.

FACTUAL BACKGROUND

Plaintiffs brought this action for injunctive relief and damages to redress what they characterize as the "campaign of terror and intimidation" the defendants allegedly have waged against them through their organization, the American Coalition of Life Activists ("ACLA"). Specifically, plaintiffs claim that defendants' statements in certain posters and other documents, when viewed in the context of violence against abortion providers, constitute "true threats" for which they may be held liable. Defendants, in turn, maintain that the challenged statements constitute protected speech under the First Amendment for which they may not be held liable.

A. THE PARTIES

1. Plaintiffs.

The individual plaintiffs are physicians who provide abortions as part of their medical practices. The two clinics, Planned Parenthood of the Columbia/Willamette ("Planned Parenthood") and Portland Feminist Women's Health Center ("Portland Feminist") offer abortion services as well as other reproductive health care services. Planned Parenthood, a not-for-profit corporation organized under the laws of the state of Oregon, operates six clinics in Oregon. Portland Feminist, also a not-for-profit Oregon corporation, operates clinics in Portland and in Eugene, Oregon, under the name All Women's Health Services.

With the exception of plaintiff Sweigert and the two clinic plaintiffs, each of the individual plaintiffs has been the specific target of one or more of the statements alleged to constitute "true threats."

2. Defendants.

The ACLA, one of the two defendant organizations, is an unincorporated organization based in Portland, with members and activities throughout the United States. The record shows that the ACLA formed in 1994, following a doctrinal split in the anti-abortion (or pro-life) movement over the issue of violence. See, e.g., Plaintiffs' Concise Statement, Exhibit 53, p. 1.

Defendant Advocates for Life Ministries ("ALM") also is an unincorporated association that operates principally in Portland. ALM publishes Life Advocate, a magazine distributed nationally and internationally. The record shows that Life Advocate has published articles that endorse interference with and obstruction of abortion services through, among other things, use of force. See, e.g., Plaintiffs' Concise Statement, Exhibit 61.

With the exception of defendant Bray, the individual defendants are present and former directors of the ACLA and have been actively involved in its activities, among other things. In addition to his role as a director of the ACLA, defendant Burnett is one of the founders of the ACLA, the executive director of ALM, and the publisher of Life Advocate magazine. Burnett also published Bray's treatise, A Time to Kill, and has marketed and distributed the treatise nationwide. Plaintiffs describe the treatise as an "attempt[ ] to justify revolution and vigilante violence" against abortion providers. Amended Complaint, ¶ 19.

Defendant Bray, who previously spent 46 months in federal prison for conspiring to bomb 10 clinics, authored A Time to Kill. Although I previously dismissed the RICO and ORICO claims against Bray,⁵ based upon the evidence of record, I am now satisfied that there is at least a genuine issue of material fact as to whether Bray participated sufficiently in the "operation and management" of the ACLA as to be potentially liable on plaintiffs' racketeering claims and that those claims should be reinstated against him. Moreover, based on Bray's refusal to comply with discovery orders, plaintiffs moved for an order of contempt against him, which I granted in part during oral argument on September 29, 1998. At that time, I also ruled that if defendant Bray did not submit to a further deposition by October 13, 1998, I would hold him in contempt. I now so hold, and further order him in default and his defenses stricken. In the event, however, that the remaining defendants prevail on the issue of whether their statements constitute true threats (see discussion below), then the order of default will be set aside.

B. THE THREATS

Plaintiffs have identified certain specific documents they contend contain actionable "true threats" when viewed in context. These specific documents are: (1) the "Deadly Dozen" poster and its various republications; (2) the poster of plaintiff Crist; (3) the bumper sticker "Execute Murderers/Abortionists" and its various republications; and (4) the "Nuremberg Files," which also include a file specific to plaintiff Hern that bears the heading "Third Trimester Butchers." These documents are attached to Plaintiffs' Concise Statement as Exhibits 45, 48, 49, 67 (Deadly Dozen); Exhibit 55 (Crist poster); Exhibits 23-31 (bumper sticker); and Exhibits 70-73 (Nuremberg Files⁶).

Plaintiffs also identify as threats certain other ACLA posters distributed at the ACLA's St. Louis event in August 1995. These additional posters, attached as Exhibits 56-60 to Plaintiffs' Concise Statement, are discussed below. None of these additional posters mentions any of the plaintiffs in this case.

Significantly for purposes of the present motions, no statement contained in the text of the Deadly Dozen poster, the Crist poster, or the Nuremberg Files is expressly threatening, in the sense that there are no "quotable quotes" calling for violence against the targeted providers. Instead, the documents contain the following statements:

1. Deadly Dozen Poster.

Defendant Crane presented the Deadly Dozen poster at a press conference held during an ACLA meeting on January 21, 1995. Several of the individual defendants, including defendant Bray, were present.

The poster contains a heading in large, bold print that states: "GUILTY of Crimes Against Humanity." The...