Willamette Week| News| Environment

When a federal jury in Portland awarded abortion providers record damages last week, pro-choicers nationwide celebrated. But the legal victory against abortion foes won't necessarily translate into real-world rewards. Not only is it unclear how much the loss will damage anti-abortion forces, but it's also uncertain what the legal decision will mean in future court battles--for both the defendants and other protest groups.

The case began in 1995, when several abortion providers filed suit in Portland against 14 groups and individuals involved in the most militant wing of the anti-abortion movement. The providers claimed they were the victims of a campaign of terrorism by the defendants, who distributed wanted-style posters and supplied personal information to an anti-abortion Web site known as the Nuremberg Files. Although the doctors had not been physically harmed, and although the defendants' words themselves were not explicitly threatening, the jury found that the defendants did, in fact, unlawfully threaten the doctors. They found the pro-lifers liable for $109 million in compensatory and punitive damages.

There is no question that pro-choice groups won this battle, but their victory is tempered by three issues: There is no indication that pro-lifers will stop making threats; the plaintiffs will probably never see a penny from the judgment; and the verdict will face tough scrutiny on appeal.

After the verdict, the plaintiffs asked U.S. District Court Judge Robert E. Jones for an injunction to prevent the activists from threatening them again in the future.

It won't be easy.

"I don't know of any case where an injunction against speech has been upheld," explains Portland lawyer Charlie Hinkle. "The U.S. Supreme Court has said over and over again that prior restraint, an injunction to prevent speech from being uttered, is virtually impossible to get."

Jones has already decided that he can't do anything about the Nuremberg Files because the man responsible for the posting, Neal Horsley, doesn't live in Oregon and was not a defendant in the lawsuit. But Hinkle believes the judge may be able to bar the defendants from redistributing the "wanted" posters, which include the doctors' home and work addresses. The defendants, however, have already said that a judge's order won't stop them. In fact, just days after the verdict defendant Timothy Dreste passed out copies of the posters at a Missouri clinic.

Moreover, even if Judge Jones could craft an injunction against the 14 defendants, he can't issue an order prohibiting other pro-life activists from distributing the posters or making other potentially threatening statements.

"There's always a way to tell the truth," says Paul deParrie, a local activist who has signed a statement saying killing abortion doctors is justifiable homicide. Although deParrie is affiliated with the Advocates for Life Ministries, a named defendant in the trial, he was not personally named in the lawsuit. "If I can't put 'wanted' on the posters," deParrie says, "I'll make big sandwich board signs and walk around with them."

Another problem for the plaintiffs involves the monetary damages. The $109 million judgment may sound good on paper, but it is virtually uncollectible. That's because the defendants are "judgment-proof"--either by happenstance or by design, they have no assets and no income that the plaintiffs can seize. These activists often don't own homes or cars or have credit cards. They also shy away from regular jobs to avoid having their wages garnished.

"Judgment-proof kinds of means bulletproof," explains Kent Snyder, a bankruptcy lawyer. "You can shoot bullets at something, but they don't penetrate. You can get judgments, but you can't collect anything off of them."

Despite these problems, plaintiff James Newhall is still optimistic. "My guess is there are people who will bail out [of the militant anti-abortion movement]," he says. "They don't want to get involved in a $100 million lawsuit."

The third hurdle to victory is the appeals process, which could go all the way to the U.S. Supreme Court. Because the case is unique, it's unclear how the defendants will fare.

In other cases involving threats, the threats have been direct and explicit. In this case, however, the "threats" were veiled. They could be construed as unlawful only when considered in conjunction with the murders of abortion doctors and clinic bombings that have taken place over the last decade or so.

Because the threats were not explicit, ACLU-Oregon asked the court to apply a new standard in the case. Not only should the jury consider whether a reasonable person would feel threatened in the plaintiff's shoes, but it should also consider whether the defendants intended the statements to be threatening. Judge Jones, however, followed precedent and denied the ACLU's request, asking the jury to consider only the former.

The ACLU will file an amicus brief on the appeal.

Stu Sugarman, a Portland lawyer who often represents protest groups, hopes the 9th Circuit Court considers adopting the ACLU's argument. Otherwise, he says, people involved in non-violent civil disobedience--like the Critical Mass bicycle group, Iraqi-bombing protesters and animal-rights group, which he has defended--could be squelched.

"Certainly I'm concerned," Sugarman says. "People like to claim that the people I defend are violent. They're anything but violent. I could easily see somebody trying to symbolically sue them in civil court and say their speech isn't covered [by the First Amendment] because it's threatening."

Under the ACLU's proposed standard, such lawsuits would not be successful if there was no evidence that the protesters intended to threaten their targets.

"When we surround a person's office with a couple hundred people," Sugarman says, "they might think that's threatening, but we don't intend to threaten them. We're just trying to focus attention on a problem."

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Willamette Week | originally published February 10, 1999