Abortion Web site appeal to test First Amendment

PORTLAND, Oregon (AP) -- A federal appeals court on Tuesday suggested mediation to settle a $109 million verdict that declared a Web site and posters listing the names of abortion doctors and clinics were threats that went beyond free speech.

Attorneys made their arguments Tuesday before a panel of the 9th U.S. Circuit Court of Appeals.

The case is widely seen as a test of a Supreme Court ruling that defined a threat as explicit language likely to cause "imminent lawless action" -- and a measure of how far anti-abortion activists can go in harrying doctors and clinics.

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Christopher Ferrara, the lawyer representing the activists, declined comment after Judge Alex Kozinski offered both sides two days to consider a settlement. He and the other judges repeatedly offered hypothetical situations in an effort to determine whether jurors were correct in deciding an implied threat could be an explicit threat.

Maria Vullo, the lawyer for the doctors and Planned Parenthood, said mediation would only settle the dispute between the individual clients, not the law underlying the case. She felt confident the verdict would be upheld.

At issue is a Web site called "The Nuremberg Files" that listed hundreds of abortion doctors accused of committing "crimes against humanity." It invited readers to send in doctors' addresses, license plate numbers and even the names of their children.

Last year, anti-abortion activists argued that the posters and Web site were free speech protected under the First Amendment. Critics called it a hit list.

A number of legal experts have criticized the February 1999 jury verdict and the instructions jurors received. Others consider the decision sound, citing years of arson, shootings and death threats against doctors and clinics.

Ferrara argued that any threat must be direct and explicit, as the Supreme Court has ruled, repeatedly calling the case unprecedented.

"It's intimidation by means of an unintended threat," he told the judges. "We've departed from all jurisprudence."

The jury was told by U.S. District Judge Robert Jones to consider the history of violence in the anti-abortion movement, including three doctors killed after their names appeared on the lists.

One was Dr. Barnett Slepian, who was slain by a sniper in October 1998 at his home near Buffalo, New York. Slepian's name was crossed out on "The Nuremberg Files" Web site later that day. The site has since been removed from the Web.

Copyright 2000 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Center for Reproductive Law and Policy
The National Right to Life Committee

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