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Supreme Cour, U.$. FILED AMERICAN ,Supreme CouR, U.$. FILED No. AMERICAN COALITION OF LIFE ACTIVISTS, et al., Petitioners, V. PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE, INC., et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI DENIS V. BRENAN BRANDON M. BOLLING Counsel for Petitioners, ACLA Counsel of Record ALM, Dodds, Dreste, Foreman, Counsel for Petitioners Bray, Murch, Treshman, and Wyson Burnett, Crane, McMillan, Ramey, and Stoyer CHRISTOPHER A. FERRARA Thomas More Law Center (Admitted in the Ninth Circuit) 24 FRANK LLOYD WRIGHT DRIVE AMERICAN CATHOLIC LAWYERS P.O. Box 393 ASSOCIATION, INC. ANN ARBOR, MI 48106 P.O. Box 10092 (734) 827-2001 FAIRFIELD, NJ 07004-6092 Counsel for Petitioners Becker Gallagher ¯ Cincinnati, OH- Washington, D.C." 800.890.5001 QUESTIONS PRESENTED Based solely on two posters and a website alleged to constitute "threats," petitioners were punished with an aggregate $120 million verdict for compensatory, punitive, and treble damages under FACE and RICO--though later reduced to a "mere" $16 million. Despite the challenged communications being devoid of any threats, the jury was instructed that it "must" impose liability "even if you believe that the defendants (petitioners) did not intend the statements to be threatening," so long as it was "foreseeable" that the communications would be "interpreted" as threats. This matter is an injustice to petitioners and an affront to this Court’s First Amendment jurisprudence. Furthermore, ninety-one percent of the remitted damages were awarded to parties with no Article III standing---entities not even mentioned by petitioners’ communications. The verdict was followed by a permanent injunction banning republication and possession of the communications. The questions presented are: Whether respondent clinics’ lack of Article III standing and the lack of subject matter jurisdiction over a non-existent "conspiracy to violate FACE" claim require reversal. Whether the First Amendment permits punishment of public forum political speech using a "negligence" standard, on the theory that the speech might "generate fear" of violence by parties unrelated to the speaker. ii o Whether this Court’s decision in Scheidler v. NOW requires dismissal of the RICO claim in this case. ooo 111 PARTIES TO THE PROCEEDING Petitioners, twelve pro-life advocates and two pro- life organizations, are American Coalition of Life Activists (ACLA), Advocates for Life Ministries (ALM), Michael Bray, Andrew Burnett, David A. Crane, Michael B. Dodds, Timothy Paul Dreste, Joseph L. Foreman, Charles Roy McMillan, Bruce Evan Murch, Catherine Ramey, Dawn Marie Stover, Donald Treshman, and Charles Wysong. Respondents, four abortion doctors and two abortion clinics, are Planned Parenthood of the Columbia/Willamette, Inc.; Portland Feminist Women’s Health Center; Robert Crist, M.D.; Warren M. Hern, M.D.; Elizabeth Newhall, M.D.; and James Newhall, M.D. iv CORPORATE DISCLOSURE STATEMENT Petitioners have no parent corporations, and no publicly held company holds any stock of petitioners. V TABLE OF CONTENTS QUESTIONS PRESENTED ...................i PARTIES TO THE PROCEEDING ............iii CORPORATE DISCLOSURE STATEMENT ....iv TABLE OF AUTHORITIES ..................ix ABBREVIATIONS KEY .................... xii DECISIONS BELOW ....................... 1 JURISDICTION ........................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 1 STATEMENT OF THE CASE ................ 2 A. The "Deadly Dozen" Poster and "Crist Posters" ............................. 2 B. The "Nuremberg Files" ................. 3 Co The Trial, Verdict, and Injunction ........4 D. A Three-Judge Panel Vacates the Verdict and Injunction ....................... 5 E. An En Banc Majority Reinstates the Verdict and Injunction, but Vacates the Punitive Damage Award ...................... 5 vi F. The Supervening Supreme Court Decisions . 8 G. The Three-Judge Panel Decision After Remand ............................. 8 H. Petitioners’ Previous Petitions for Certiorari ........................... 9 REASONS FOR GRANTING THE PETITION .. 10 I. The Clinics Lacked Standing And The District Court Lacked Subject Matter Jurisdiction ... 10 A. The Respondent Clinics Lacked Standing . 10 B. The District Court Lacked Subject Matter Jurisdiction ......................... 12 II. The Ninth Circuit Has Punished Protected Speech ................................ 12 A. The Ninth Circuit’s Refusal to Use "Extreme Care" in Punishing Public Forum Political Speech ............................. 13 B. The Ninth Circuit’s Unconstitutional "Threat" Standard ................... 14 1. An unconstitutional negligence standard of intent ......................... 15 2. Protected Speech Punished for "Generating Fear" ................. 19 vii C. Punitive damages without notice or reprehensibility ..................... 22 D. The national importance of the case .....23 III. The RICO Claim Must Be Dismissed .......23 CONCLUSION ........................... 24 APPENDIX Appendix A: Decision of the Court of Appeals for the Ninth Circuit (Feb. 11, 2008) ..........la Appendix B: Decision of the Court of Appeals for the Ninth Circuit (Sept. 6, 2005) .......... 18a Appendix C: Amended Judgment on Remand of the United States District Court, District of Oregon (Feb. 17, 2004) .................. 64a Appendix D: Opinion and Order of the United States District Court, District of Oregon (Jan. 28, 2004) ............................. 66a Appendix E: Order of the United States Supreme Court (June 27, 2003) .......... 90a Appendix F: Decision of the Court of Appeals for the Ninth Circuit (May 16, 2002) ......... 91a Appendix G: Order of the Court of Appeals for the Ninth Circuit (Oct. 3, 2001) ......... 229a Vlll Appendix H: Decision of the Court of Appeals for the Ninth Circuit (March 28, 2001) .... 235a Appendix I: Judgment of the United States District Court, District of Oregon (March 13, 2000) ............................... 259a Appendix J: Decision of the United States District Court, District of Oregon (March 16, 1999) .............................. 262a Appendix K: Order and Permanent Injunction of the United States District Court, District of Oregon (Feb. 25, 1999) ................. 333a Appendix L: Opinion and Order of the United States District Court, District of Oregon (Oct. 14, 1998) ............................ 342a Appendix M: Decision of United States District Court, District of Oregon (Sept. 18, 1996) 377a Appendix N: Order of the Court of Appeals for the Ninth Circuit (Oct. 26, 2005) ........ 451a Appendix O: FACE, 18 U.S.C. § 248 ...... 453a Appendix P: Hobbs Act, 18 U.S.C. § 1951 .. 459a Appendix Q: RICO, 18 U.S.C. §§ 1961, 1962 .. 461a Appendix R: Selected Final Jury Instructions . 468a Appendix S: Verdict ................... 482a ix TABLE OF AUTHORITIES Cases Allen v. Wright, 468 U.S. 737 (1984) .......... 10 Ashcroft v. Free Speech Coalition, 535 U.S. 234 ........................... 21 Arthur Anderson v. United States, 125 S.Ct. 2129 (2005) .................... 19 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ..................... 10 Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989) ..................... 21 Brandenburg v. Ohio, 395 U.S. 444 (1969) .. 19, 20 Fogel v. Chestnutt, 668 F.2d 100 (2d Cir. 1981).. 18 Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .................. 10, 11 Griffin v. U.S., 502 U.S. 46 (1991) ......... 12, 17 Hagans v. Lavine, 415 U.S. 528 (1974) ........ 12 Hess v. Indiana, 414 U.S. 105 (1973) .......... 20 Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694 (1982) ..................... 12 Mercer v. Theriot, 377 U.S. 152 (1964) ......... 9 X Missouri v. Jenkins, 515 U.S. 70 (1995) ......... 9 NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) ............ 13, 14, 17, 20 Northern Fla. Chapter of Associated General Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) ..................... 10 Scheidler v. NOW, 537 U.S. 393 (2003) . 8, 9, 23, 24 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ...................... 10 State Farm v. Campbell, 538 U.S. 408 (2003) ................. 8, 9, 22 Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 216 F.3d 764 (9th Cir. 2000) ............... 19 United States v. Wells, 519 U.S. 482 (1997) ..... 18 Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464 (1982) ..................... 11 Virginia v. Black, 538 U.S. 343 (2003) ...... passim Watts v. United States, 394 U.S. 705 (1969) ............ 13, 15, 19, 20 xi Statutes and Rules 18 U.S.C. 8 248 ...................... xii, 1, 12 18 U.S.C. 8 1951(b)(2) ....................... 1 18 U.S.C. 88 1961, 1962 .................. xii, 1 18 U.S.C. 8 1962(d) ........................ 12 18 U.SoC. 8 1964(c) ........................ 12 28 U.S.C. 8 1254(1) ......................... 1 Fed. R. Civ. P. 54 .......................... 18 Sup. Ct. R. 10(c) ........................... 24 xii ABBREVIATIONS KEY ACLA Petitioner American Coalition of Life Activists and all other petitioners collectively herein. ALM Petitioner Advocates for Life Ministries. App. Appendix to the petition for certiorari. FACE The Freedom of Access to Clinics Entrances Act of 1994, 18 U.S.C. § 248. Lo Petitioners "lodged" with the court below selected trial exhibits in 8 1½ x 11 format, cited herein as "L. [page number]." Reducing the size of the exhibits to include them in the appendix to the
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