PORTLAND, OR., July 13 /Covenant News Wire Service/ — A three-judge panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments yesterday in an ongoing appeal by pro-life activists from a $120 million dollar aggregate verdict by a Portland jury in 1999. The verdict, which had been reversed by a three-judge panel in 2001 only to be reinstated by the 6-to-5 vote of an en banc panel in 2003, was based entirely on the publication of two posters and a non-party’s website (the so-called “Nuremberg Files”) alleged to be “threats” against the named abortionists in violation of FACE and RICO.
Edward L. White III, trial counsel with the Thomas More Center, a national public interest law firm based in Ann Arbor, Michigan conducted the oral argument on behalf of the pro-life activists. Acting co-counsel was Christopher A. Ferrara of the American Catholic Lawyers Association.
The panel focused on the question of whether the jury’s award of punitive damages, which constitutes most of the verdict could be sustained in light of the Supreme Court’s recent decision in State Farm v. Campbell. The court appeared concerned that the punitive damages award of $108.5 million was grossly excessive.
Also at issue are changes in the law announced by the Supreme Court in Virginia v. Black and the Supreme Court’s decision in Scheidler v. NOW, which hold that political protesters cannot be liable for “extortion” by threats under RICO unless money or other property is obtained from the alleged extortion victim.
“Under Virginia v. Black,” said Mr. White, “a threat must be specifically intended by the speaker, but the jury instructions in this case expressly rejected specific intent as the standard and told the jury that they could find a threat even if they believed no threat was intended, so long as a ‘reasonable person’ would foresee that the posters and website would be viewed as threats. We believe that the loose standard given to the jury for threats is not consistent with the First Amendment. A specific intent standard is required for adequate constitutional protection.”
“We believe that these Supreme Court decisions require a new trial on the FACE claims and dismissal of the RICO claim,” Mr. White added. “We have asked the Ninth Circuit to apply these new decisions to this case, which is still pending, even though they came down after the jury’s verdict. We believe the Court is obliged to follow these decisions and grant a new trial, since intervening Supreme Court cases apply while the appellate process is continuing.”
A decision in this nationally and internationally reported First Amendment case is expected in three to five months.
Thomas More Law Center
24 Frank Lloyd Wright Drive, P.O. Box 393
Ann Arbor, MI. 48106