FC: Ninth Circuit rules "Nuremberg Files" protected by 1st Amend.

[Declan McCullagh <declan () well com>]

The web site in question (the lawsuit was broader, but the site was part
of the case):
http://www.ru486registry.com/atrocity/

Background:
http://www.politechbot.com/cgi-bin/politech.cgi?name=nuremberg

AP coverage:
http://abcnews.go.com/sections/us/DailyNews/abortionappeal010328.html

This is not a case that's squarely in the middle of what's covered by the
First Amendment -- it lies closer to the edge. But the court did the
right thing, as you might expect in an opinion written by Judge Kozinski.

To the ACLU's shame, its Oregon affiliate filed an amicus brief
arguing that this kind of speech should be illegal; it supported
affirming the district court's injunction. The ACLU's reasoning
appears to be that the existence of such an admittedly-extreme web
site and related materials hurts the free speech rights of someone
trying to get an abortion -- which seems to be a bit of a stretch,
not to mention unreasonably censorial.

-Declan

****

http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/1b21cad7a2e437d988256a1d006a03a1?OpenDocument

     _________________________________________________________________
   
   Case Name:
   PLANNED PARENTHOOD OF THE COLUMBIA/WILLAMETTE INC. V AMERICAN
   COALITION OF LIFE ACTIVISTS
   Case Number: Date Filed:
   99-35320 03/28/01
     _________________________________________________________________

[Snip for brevity. --DBM]

   Filed March 28, 2001
   Before: Alex Kozinski and Andrew J. Kleinfeld,
   Circuit Judges, and William W Schwarzer, District Judge.**
   Opinion by Judge Kozinski

[Snip]

   OPINION
   KOZINSKI, Circuit Judge:
   Anti-abortion activists intimidated abortion providers by
   publishing their names and addresses. A jury awarded more
   than $100 million in actual and punitive damages against the
   activists, and the district court enjoined their speech. We con-
   sider whether such speech is protected by the First Amend-
   ment.
                                  3928
   I
   During a 1995 meeting called to mark the anniversary of
   Roe v. Wade, 410 U.S. 113 (1973), the American Coalition of
   Life Activists (ACLA) unveiled a poster listing the names and
   addresses of the "Deadly Dozen," a group of doctors who per-
   form abortions. In large print, the poster declared them guilty
   of "crimes against humanity" and offered $5,000 for informa-
   tion leading to the "arrest, conviction and revocation of
   license to practice medicine." The poster was later published
   in an affiliated magazine, Life Advocate, and distributed at
   ACLA events.
   Later that year, in front of the St. Louis federal courthouse,
   ACLA presented a second poster, this time targeting Dr. Rob-
   ert Crist. The poster accused Crist of crimes against humanity
   and various acts of medical malpractice, including a botched
   abortion that caused the death of a woman. Like the Deadly
   Dozen List, the poster included Crist's home and work
   addresses, and in addition, featured his photograph. The
   poster offered $500 to "any ACLA organization that success-
   fully persuades Crist to turn from his child killing through
   activities within ACLA guidelines" (which prohibit violence).
   In January 1996, at its next Roe anniversary event, ACLA
   unveiled a series of dossiers it had compiled on doctors, clinic
   employees, politicians, judges and other abortion rights sup-
   porters. ACLA dubbed these the "Nuremberg Files, " and
   announced that it had collected the pictures, addresses and
   other information in the files so that Nuremberg-like war
   crimes trials could be conducted in "perfectly legal courts
   once the tide of this nation's opinion turns against the wanton
   slaughter of God's children." ACLA sent hard copies of the
   files to Neal Horsley, an anti-abortion activist, who posted the
   information on a website.1 The website listed the names of
   _________________________________________________________________
   1 Plaintiffs did not sue Horsley, but the district court concluded
   that Hor-
   sley was an agent of ACLA and other defendants as well as a co-
                                  3929
   doctors and others who provide or support abortion and called
   on visitors to supply additional names.2  The website marked
   the names of those already victimized by anti-abortion terror-
   ists, striking through the names of those who had been mur-
   dered and graying out the names of the wounded. Although
   ACLA's name originally appeared on the website, Horsley
   removed it after the initiation of this lawsuit.
   Neither the posters nor the website contained any explicit
   threats against the doctors. But the doctors knew that similar
   posters prepared by others had preceded clinic violence in the
   past. By publishing the names and addresses, ACLA robbed
   the doctors of their anonymity and gave violent anti-abortion
   activists the information to find them. The doctors responded
   to this unwelcome attention by donning bulletproof vests,
   drawing the curtains on the windows of their homes and
   accepting the protection of U.S. Marshals.
   Some of the doctors went on the offensive. Along with two
   Portland-based health centers, the doctors sued ACLA, twelve
   activists and an affiliated organization, alleging that their
   threatening statements violated state and federal law, includ-
   ing the Freedom of Access to Clinic Entrances Act of 1994
   (FACE), 18 U.S.C. S 248.3 Because the doctors claimed they
   _________________________________________________________________
   conspirator. See Planned Parenthood of the Columbia/Willamette, Inc.
   v.
   American Coalition of Life Activists, 41 F. Supp. 2d 1130, 1152 (D.
   Or.
   1999). In addition, the court found that the defendants came up with
   the
   idea for the webpage and sent Horsley much of its content. See id. at
   1152-
   53.
   2 In addition to plaintiffs, the Nuremberg Files website identifies
   dozens
   of clinic employees and public figures as abortion supporters (and
   future
   war crimes defendants), including six current members of the Supreme
   Court, Bill Clinton, Al Gore, Janet Reno, Jack Kevorkian, C. Everett
   Koop, Mary Tyler Moore, Whoopi Goldberg and, for reasons unknown,
   Retired Justice Byron White. See Roe, 410 U.S. at 221 (White, J.,
   dissent-
   ing).
   3 Specifically, they alleged violations of the Racketeer Influenced
   and
   Corrupt Organizations Act (RICO), 18 U.S.C. S 1962, the Oregon Racke-
   teer Influenced and Corrupt Organizations Act, Or. Rev. Stat. S
   166.720,
   and the state tort of intentional infliction of emotional distress.
   The state
   law claims were abandoned before trial, and the district court
   submitted
   to the jury only the FACE and RICO claims.
                                  3930
   were harmed by defendants' speech, the district court
   instructed the jury that defendants could only be liable if their
   statements were "true threats" and therefore unprotected by
   the First Amendment.4 In a special verdict, the jury found that
   all the statements were true threats and awarded the doctors
   $107 million in actual and punitive damages.5 The district
   court then issued an injunction barring defendants from mak-
   ing or distributing the posters, the webpage or anything simi-
   lar. ACLA and the other defendants appeal, claiming that
   their statements are protected by the First Amendment.6
   _________________________________________________________________
   4 We call statements "true threats" to distinguish them from
   statements
   that are threatening on their face but could only be understood, under
   the
   circumstances, as hyperbole or jokes. For example, in Watts v. United
   States, 394 U.S. 705 (1969) (per curiam), the Supreme Court held that
   the
   defendant's statement that "[i]f they ever make me carry a rifle the
   first
   man I want to get in my sights is L.B.J.," was not a true threat. Id.
   at 706,
   708 (internal quotation marks and citation omitted). It was instead
   "politi-
   cal hyperbole . . . a kind of very crude offensive method of stating a
   politi-
   cal opposition to the President." Id. at 708 (internal quotation marks
   omitted).
   5 The jury held that defendants Michael Bray and Donald Treshman
   were not liable under RICO. Although the district court had previously
   found Bray in default because of his refusal to comply with discovery
   orders, the court later set aside the default and entered judgment
   against
   Bray on the FACE claim based on the verdict.
   6 In No. 99-35333, Paul deParrie, a non-party, moves to intervene in
   the
   appeal because he was enjoined as an employee and agent of one of the
   defendant organizations, the Advocates for Life Ministries (ALM). See
   Fed. R. Civ. P. 65(d). DeParrie relies on Keith  v. Volpe, 118 F.3d
   1386,
   1391 (9th Cir. 1997), but that case dealt with a situation where a
   non-party
   sought to appeal a judgment that would not otherwise have been
   appealed
   by the parties. The question then was whether someone who is not a
   party
   might take the legally operative step of filing a notice of appeal.
   Here, all
   of the losing parties have appealed and deParrie's proposed
   participation
   is in the nature of an amicus. We therefore construe deParrie's motion
   as
   one to participate as an amicus curiae and grant it.
   In No. 99-35320 and No. 99-35405, a former defendant, Monica
   Migliorino Miller, filed a notice of appeal of the injunction with
   which the
   district court ordered she be served. At plaintiffs' request, the
   district court
   had dismissed Miller from the suit before trial and so she was not
   herself
   enjoined. The injunction applies to her only insofar as she is an
   agent or
   employee of defendants, and so she has no independent standing to
   appeal.
   Her notice of appeal is therefore ordered stricken.
                                  3931
   II
   A. Extreme rhetoric and violent action have marked many
   political movements in American history. Patriots intimidated
   loyalists in both word and deed as they gathered support for
   American independence. John Brown and other abolitionists,
   convinced that God was on their side, committed murder in
   pursuit of their cause. In more modern times, the labor, anti-
   war, animal rights and environmental movements all have had
   their violent fringes. As a result, much of what was said even
   by nonviolent participants in these movements acquired a
   tinge of menace.
   The Supreme Court confronted this problem in NAACP v.
   Claiborne Hardware Co., 458 U.S. 886 (1982). There, a
   group of white-owned businesses sued the NAACP and others
   who organized a civil rights boycott against the stores. To
   give the boycott teeth, activists wearing black hats stood out-
   side the stores and wrote down the names of black patrons.
   After these names were read aloud at meetings and published
   in a newspaper, sporadic acts of violence were committed
   against the persons and property of those on the list. At one
   public rally, Charles Evers, a boycott organizer, threatened
   that boycott breakers would be "disciplined" and warned that
   the sheriff could not protect them at night. See id. at 902. At
   another rally, Evers stated, "If we catch any of you going in
   any of them racist stores, we're gonna break your damn
   neck." See id. The Mississippi courts held the boycott orga-
   nizers liable based on Evers's statements and the activities of
   the black-hatted activists.
   The Supreme Court acknowledged that Evers's statements
   could be interpreted as inviting violent retaliation, "or at least
   as intending to create a fear of violence whether or not
   improper discipline was specifically intended." Id. at 927
   (emphasis added). Nevertheless, it held that the statements
   were protected because there was insufficient evidence that
   Evers had "authorized, ratified, or directly threatened acts of
                                  3932
   violence." Id. at 929. Nor was publication of the boycott vio-
   lators' names a sufficient basis for liability, even though col-
   lecting and publishing the names contributed to the
   atmosphere of intimidation that had harmed plaintiffs. See id.
   at 925-26. While Charles Evers and the defendants in our case
   pursued very different political goals, the two cases have one
   key thing in common: Political activists used words in an
   effort to bend opponents to their will.
   [1] The First Amendment protects ACLA's statements no
   less than the statements of the NAACP. Defendants can only
   be held liable if they "authorized, ratified, or directly threat-
   ened" violence. If defendants threatened to commit violent
   acts, by working alone or with others, then their statements
   could properly support the verdict. But if their statements
   merely encouraged unrelated terrorists, then their words are
   protected by the First Amendment.
   [2] Political speech may not be punished just because it
   makes it more likely that someone will be harmed at some
   unknown time in the future by an unrelated third party. In
   Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), the
   Supreme Court held that the First Amendment protects speech
   that encourages others to commit violence, unless the speech
   is capable of "producing imminent lawless action. " Id. at 447.
   It doesn't matter if the speech makes future violence more
   likely; advocating "illegal action at some indefinite future
   time" is protected. Hess v. Indiana , 414 U.S. 105, 108 (1973)
   (per curiam). If the First Amendment protects speech advocat-
   ing violence, then it must also protect speech that does not
   advocate violence but still makes it more likely. Unless
   ACLA threatened that its members would themselves assault
   the doctors, the First Amendment protects its speech.7
   _________________________________________________________________
   7 If such statements were unprotected threats, newspapers might face
   lia-
   bility for publishing stories that increased the likelihood that
   readers
   would harm particular persons, for example by disclosing the identity
   of
   mobsters in hiding or convicted child molesters. This would permit the
                                  3933
   B. ACLA's speech no doubt frightened the doctors, but the
   constitutional question turns on the source of their fear.8 The
   doctors might have understood the statements as veiled threats
   that ACLA's members (or others working with ACLA) would
   inflict bodily harm on the doctors unless they stopped per-
   forming abortions. So interpreted, the statements are unpro-
   tected by the First Amendment, regardless of whether the
   activists had the means or intent to carry out the threats. See
   United States v. Orozco-Santillan, 903 F.2d 1262, 1265 n.3
   (9th Cir. 1990). So long as they should have foreseen that the
   _________________________________________________________________
   imposition of liability for the mere publication of news, dramatically
   undercutting the freedom constitutionally accorded to the press. Cf.
   New
   York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing the
   need to protect our "profound national commitment to the principle
   that
   debate on public issues should be uninhibited, robust, and
   wide-open").
   8 It is not unlawful to say things that frighten other people. A
   doctor who
   discloses an adverse prognosis often instills fear in the patient and
   his fam-
   ily; predicting a future event--"That bus is about to hit your
   child!"--can
   cause the listener intense apprehension. Yet such statements are not
   (and
   cannot be made) unlawful. Nor does it matter that the speaker makes
   the
   statement for the very purpose of causing fear. Let's say your
   malicious
   neighbor sees your house is burning. He calls you at work and
   announces:
   "Your house is on fire!" This may scare you--it may have no other
   purpose--yet it is lawful because it is speech and does not fall
   within one
   of the narrow categories the Supreme Court has held is unprotected
   under
   the First Amendment.
   The matter is more complicated where the speech is intended to intimi-
   date the listener into changing his conduct. Blackmail and
   extortion--the
   threat that the speaker will say or do something unpleasant unless you
   take, or refrain from taking, certain actions--are not
   constitutionally pro-
   tected. See, e.g., Watts, 394 U.S. 705. On the other hand, the
   statement,
   "If you smoke cigarettes you will die of lung cancer," is protected,
   even
   though its purpose is to scare you into quitting smoking. So is, "If
   you
   mess around with Tom's girlfriend, he'll break your legs," unless the
   speaker is sent by Tom. The difference is this: In the case of
   blackmail and
   extortion, you are given to understand that, unless you do what's
   asked of
   you, the speaker himself (or someone acting on his behalf) will bring
   about that which you abhor; in the other examples, the speaker has no
   con-
   trol over the adverse consequences and merely predicts what is likely
   to
   happen if you act (or refrain from acting) in a particular way.
                                  3934
   doctors would take the threats seriously, the speech is unlaw-
   ful. See id. at 1265.9
   But the statements might also have scared the doctors in
   another way. By singling out the plaintiffs from among the
   thousands across the country who are involved in delivering
   abortion services, ACLA called them to the unfriendly atten-
   tion of violent anti-abortion activists. And by publishing the
   doctors' addresses, ACLA made it easier for any would-be
   terrorists to carry out their gruesome mission. 10 From the doc-
   tors' point of view, such speech may be just as frightening as
   a direct threat, but it remains protected under Claiborne
   Hardware.
   The jury would be entitled to hold defendants liable if it
   understood the statements as expressing their intention to
   _________________________________________________________________
   9 Our case law has not been entirely consistent as to whether a
   speaker
   may be penalized for negligently uttering a threat or whether he must
   have
   specifically intended to threaten. Compare Orozco-Santillan, 903 F.2d
   at
   1265 ("Whether a particular statement may properly be considered to be
   a threat is governed by an objective standard--whether a reasonable
   per-
   son would foresee that the statement would be interpreted by those to
   whom the maker communicates the statement as a serious expression of
   intent to harm or assault."), with United States v. Gilbert (Gilbert
   I), 813
   F.2d 1523, 1529 (9th Cir. 1987) ("[Gilbert] correctly identifies the
   element
   of intent specified in section 3631 as the determinative factor
   separating
   protected expression from unprotected criminal behavior . . . . [T]he
   stat-
   ute's requirement of intent to intimidate serves to insulate the
   statute from
   unconstitutional application to protected speech. " (citation
   omitted)).
   While we believe that Gilbert I states the correct rule, the result
   here is the
   same under either standard. We therefore presume that the less speech-
   protective standard of Orozco-Santillan applies.
   10 We need not decide here whether the First Amendment would protect
   defendants from a suit for invasion of privacy, because plaintiffs do
   not
   claim damages based solely on the publication of private facts, namely
   their addresses and telephone numbers. Cf. Anderson v. Fisher
   Broadcast-
   ing Cos., 712 P.2d 803, 807 (Or. 1986) (recognizing a tort for
   invasion of
   privacy when the tortfeasor has the specific intent to cause plaintiff
   severe
   mental or emotional distress and such conduct exceeds "the farthest
   reach
   of socially tolerable behavior").
                                  3935
   assault the doctors but not if it understood the statements as
   merely encouraging or making it more likely that others
   would do so. But the jury instruction was ambiguous on this
   critical point. The instruction provided that "[a] statement is
   a `true threat' when a reasonable person making the statement
   would foresee that the statement would be interpreted by
   those to whom it is communicated as a serious expression of
   an intent to bodily harm or assault." Jury Instruction No. 10,
   at 14. This instruction was consistent with our previous threat
   cases. See Lovell v. Powell Unified Sch. Dist., 90 F.3d 367,
   372 (9th Cir. 1996). But in those previous cases, there was no
   need to emphasize that threats must be direct because the
   speakers themselves made it perfectly clear that they would
   be the ones to carry out the threats.11  Under the instruction in
   this case, the jury could have found the anti-abortion activists
   liable based on the fact that, by publishing the doctors' names,
   the activists made it more likely that the doctors would be
   harmed by third parties.
   This is not a fanciful possibility. The record contains much
   evidence that the doctors were frightened, at least in part,
   because they anticipated that their unwelcome notoriety could
   expose them to physical attacks from third parties unrelated
   to defendants. For example, plaintiff Dr. Elizabeth Newhall
   testified, "I feel like my risk comes from being identified as
   _________________________________________________________________
   11 See, e.g., Lovell, 90 F.3d at 369 (student told administrator, "I'm
   going to shoot you"); Melugin v. Hames, 38 F.3d 1478, 1481 (9th Cir.
   1994) (civil defendant sent letter to judge threatening to kill him);
   Orozco-
   Santillan, 903 F.2d at 1264 (arrestee threatened INS agent at his
   arrest and
   during subsequent phone calls); United States  v. Gilbert (Gilbert
   II), 884
   F.2d 454, 455-56 (9th Cir. 1989) (white supremacist mailed a letter to
   the
   head of an inter-racial adoption agency, condemning her occupation and
   enclosing posters suggesting he would commit violence against inter-
   racial couples and ethnic minorities); United States v. Mitchell, 812
   F.2d
   1250, 1252 (9th Cir. 1987) (defendant told Secret Service agents he
   was
   going to kill them and the President); Roy v. United States, 416 F.2d
   874,
   875 (9th Cir. 1969) (marine called the White House and said he was
   going
   to kill the President). The instruction continues to be good law in
   cases
   where the source of the threatened violence is not an issue.
                                  3936
   a target. And . . . all the John Salvis in the world know who
   I am, and that's my concern."12 Testimony of Elizabeth
   Newhall, Planned Parenthood of the Columbia/Willamette,
   Inc. v. American Coalition of Life Activists , No. CV 95-
   01671-JO, at 302 (D. Or. Jan. 8, 1999); see also id. at 290
   ("[U]p until January of `95, I felt relatively diluted by the--
   you know, in the pool of providers of abortion services. I
   didn't feel particularly visible to the people who were--you
   know, to the John Salvis of the world, you know. I sort of felt
   one of a big, big group."). Likewise, Dr. Warren Martin Hern,
   another plaintiff, testified that when he heard he was on the
   list, "I was terrified . . . . [I]t's hard to describe the feeling
   that
   --that you are on a list of people to--who have been brought
   to public attention in this way. I felt that this was a--a list of
   doctors to be killed." Testimony of Warren Martin Hern,
   Planned Parenthood, No. CV 95-01671-JO, at 625 (Jan. 11,
   1999).
   Were the instruction taken literally, the jury could have
   concluded that ACLA's statements contained "a serious
   expression of intent to harm," not because they authorized or
   directly threatened violence, but because they put the doctors
   in harm's way. However, the First Amendment does not per-
   mit the imposition of liability on that basis.
   C. Although the jury instruction was ambiguous, we need
   not decide whether the ambiguity was so great as to require
   us to set aside the verdict. Even if the jury drew only the per-
   missible inference, we must evaluate the record for ourselves
   to ensure that the judgment did not trespass on the defendants'
   First Amendment rights. Specifically, we must determine
   whether ACLA's statements could reasonably be construed as
   saying that ACLA (or its agents) would physically harm doc-
   _________________________________________________________________
   12 In December 1994, John Salvi killed two clinic workers and wounded
   five others in attacks on two clinics in Brookline, Massachusetts;
   Salvi
   later fired shots at a clinic in Norfolk, Virginia before he was
   appre-
   hended. Salvi is not a defendant in this case.
                                  3937
   tors who did not stop performing abortions. Because the dis-
   trict court rejected the First Amendment claim, we conduct a
   de novo review of both the law and the relevant facts. See
   Lovell, 90 F.3d at 370. The question therefore is not whether
   the facts found below are supported by the record but whether
   we, looking at the record with fresh eyes, make the same find-
   ings. If we disagree with the district court, our findings pre-
   vail. See Eastwood v. National Enquirer, Inc., 123 F.3d 1249,
   1252 (9th Cir. 1997).
   We start by noting that none of the statements ACLA is
   accused of making mention violence at all. While pungent,
   even highly offensive, ACLA's statements carefully avoid
   threatening the doctors with harm "in the sense that there are
   no `quotable quotes' calling for violence against the targeted
   providers." Planned Parenthood of the Columbia/Willamette,
   Inc. v. American Coalition of Life Activists , 23 F. Supp. 2d
   1182, 1186 (D. Or. 1998). Instead, ACLA offers rewards to
   those who take nonviolent measures against the doctors, such
   as seeking the revocation of their medical licenses and pro-
   testing their activities. One poster talks about persuading Crist
   to "turn from his child killing," but stops short of suggesting
   any violence or other criminal conduct against him. The web-
   site seeks to gather information about abortion supporters and
   encourages others to do the same. ACLA also speaks of future
   "perfectly legal" Nuremberg-like trials, to be held at a time
   when public opinion has turned in its favor.
   We recognize that the words actually used are not disposi-
   tive, because a threat may be inferred from the context in
   which the statements are made.13 However, there are at least
   _________________________________________________________________
   13 See, e.g., Orozco-Santillan, 903 F.2d at 1265 ("Alleged threats
   should
   be considered in light of their entire factual context, including the
   sur-
   rounding events and reaction of the listeners."); Gilbert II, 884 F.2d
   at 457
   ("The fact that a threat is subtle does not make it less of a
   threat."). Other
   courts have also recognized that ambiguous language may still
   constitute
   a threat. See United States v. Dinwiddie , 76 F.3d 913, 925 (8th Cir.
   1996)
                                  3938
   two kinds of ambiguity that context can resolve. The first
   deals with statements that call for violence on their face, but
   are unclear as to who is to commit the violent acts--the
   speaker or a third party. All cases of which we are aware fall
   into this category: They hold that, where the speaker
   expressly mentions future violence, context can make it clear
   that it is the speaker himself who means to carry out the
   threat. See note 13 supra.
   A more difficult problem arises when the statements, like
   the ones here, not only fail to threaten violence by the defen-
   dants, but fail to mention future violence at all. 14 Can context
   supply the violent message that language alone leaves out?
   While no case answers this question, we note important theo-
   retical objections to stretching context so far. Context, after
   all, is often not of the speaker's making. For example, the dis-
   trict court in this case admitted evidence of numerous acts of
   violence surrounding the abortion controversy, almost none of
   them committed by the defendants or anyone connected with
   _________________________________________________________________
   (holding that an anti-abortion activist, who had previously used force
   against clinic personnel, threatened Dr. Crist when she screamed at
   him
   on numerous occasions that he could be killed if he kept on committing
   abortions); United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994)
   (finding
   a threat where defendant sent letters to a federal appellate judge
   suggest-
   ing he would use force against the panel unless it reversed its
   decision);
   United States v. Khorrami, 895 F.2d 1186, 1193 (7th Cir. 1990)
   (holding
   that defendant made a threat by repeatedly making anti-Semitic phone
   calls to a Jewish organization and sending it letters calling for the
   deaths
   of Israeli leaders).
   14 The defendants come closest to suggesting violence on the webpage,
   where the names of the murdered doctors are stricken and the wounded
   ones are grayed. We read the striketype and graying as the equivalent
   of
   marking "killed" or "wounded" next to the names. This clearly reports
   past violent acts and may connote approval. But it cannot fairly be
   read
   as calling for future violence against the several hundred other
   doctors,
   politicians, judges and celebrities on the list; otherwise any
   statement
   approving past violence could automatically be construed as calling
   for
   future violence.
                                  3939
   them.15 In the jury's eyes, then, defendants' statements were
   infused with a violent meaning, at least in part, because of the
   actions of others. If this were a permissible inference, it could
   have a highly chilling effect on public debate on any cause
   where somebody, somewhere has committed a violent act in
   connection with that cause. A party who does not intend to
   threaten harm, nor say anything at all suggesting violence,
   would risk liability by speaking out in the midst of a highly
   charged environment.
   In considering whether context could import a violent
   meaning to ACLA's non-violent statements, we deem it
   highly significant that all the statements were made in the
   context of public discourse, not in direct personal communi-
   cations. Although the First Amendment does not protect all
   forms of public speech, such as statements inciting violence
   or an imminent panic, the public nature of the speech bears
   heavily upon whether it could be interpreted as a threat.16 As
   we held in McCalden v. California Library Ass'n, 955 F.2d
   1214 (9th Cir. 1992), "public speeches advocating violence"
   are given substantially more leeway under the First Amend-
   ment than "privately communicated threats." Id. at 1222; see
   _________________________________________________________________
   15 Defendants objected to admission of much of this evidence and press
   their objections on appeal. Given our ruling on the merits, we need
   not
   pass on this issue. Nothing we say, therefore, should be construed as
   approving the district court's evidentiary rulings.
   16 The doctors do not claim that ACLA's speech amounted to incite-
   ment. To rise to incitement, the speech must be capable of "producing
   imminent lawless action." Brandenburg, 395 U.S. at 447. Here, the
   state-
   ments were made at public rallies, far away from the doctors, and
   before
   an audience that included members of the press. ACLA offered rewards
   to those who stopped the doctors at "some indefinite future time,"
   Hess,
   414 U.S. at 108, and the ambiguous message was hardly what one would
   say to incite others to immediately break the law. Finally, the
   statements
   were not in fact followed by acts of violence. See Claiborne Hardware,
   458 U.S. at 928 ("[H]ad [the speech] been followed by acts of
   violence,
   a substantial question would be presented" as to incitement, but
   "[w]hen
   such appeals do not incite lawless action, they must be regarded as
   pro-
   tected speech.").
                                  3940
   also Orozco-Santillan, 903 F.2d at 1265 ("Although a threat
   must be `distinguished from what is constitutionally protected
   speech,' this is not a case involving statements with a political
   message." (quoting Watts v. United States, 394 U.S. 705, 707
   (1969) (per curiam)).
   There are two reasons for this distinction: First, what may
   be hyperbole in a public speech may be understood (and
   intended) as a threat if communicated directly to the person
   threatened, whether face-to-face, by telephone or by letter. In
   targeting the recipient personally, the speaker leaves no doubt
   that he is sending the recipient a message of some sort. In
   contrast, typical political statements at rallies or through the
   media are far more diffuse in their focus because they are
   generally intended, at least in part, to shore up political sup-
   port for the speaker's position.
   [3] Second, and more importantly, speech made through the
   normal channels of group communication, and concerning
   matters of public policy, is given the maximum level of pro-
   tection by the Free Speech Clause because it lies at the core
   of the First Amendment. See Claiborne Hardware , 458 U.S.
   at 926-27 ("Since respondents would impose liability on the
   basis of a public address--which predominantly contained
   highly charged political rhetoric lying at the core of the First
   Amendment--we approach this suggested basis of liability
   with extreme care."). With respect to such speech, we must
   defer to the well-recognized principle that political statements
   are inherently prone to exaggeration and hyperbole. See
   Watts, 394 U.S. at 708 ("The language of the political arena
   . . . is often vituperative, abusive, and inexact. " (citation omit-
   ted)). If political discourse is to rally public opinion and chal-
   lenge conventional thinking, it cannot be subdued. Nor may
   we saddle political speakers with implications their words do
   not literally convey but are later "discovered " by judges and
   juries with the benefit of hindsight and by reference to facts
   over which the speaker has no control.
                                  3941
   Our guiding light, once again, is Claiborne Hardware.
   There, Charles Evers expressly threatened violence when he
   warned the boycott violators that "we're gonna break your
   damn neck[s]," and that the sheriff could not protect them
   from retribution. See 458 U.S. at 902. Evers made these state-
   ments at a time when there had already been violence against
   the boycott breakers. Evers did not himself identify specific
   individuals to be disciplined, but his associates had gathered
   and published the names, and there's no doubt that the black
   community in the small Mississippi county where the boycott
   was taking place knew whom Evers was talking about. The
   Supreme Court held that, despite his express call for violence,
   and the context of actual violence, Evers's statements were
   protected, because they were quintessentially political state-
   ments made at a public rally, rather than directly to his tar-
   gets. See id. at 928-29.
   [4] If Charles Evers's speech was protected by the First
   Amendment, then ACLA's speech is also protected. 17 Like
   Evers, ACLA did not communicate privately with its targets;
   the statements were made in public fora. And, while ACLA
   named its targets, it said nothing about planning to harm
   them; indeed, it did not even call on others to do so. This
   stands in contrast to the words of Charles Evers, who explic-
   itly warned his targets that they would suffer broken necks
   and other physical harm. Under the standard of Claiborne
   Hardware, the jury's verdict cannot stand.18
   _________________________________________________________________
   17 We cannot distinguish this case from Claiborne Hardware on the
   ground that the speech is aimed at impeding abortions, which are
   constitu-
   tionally protected against government interference. The speech in
   Clai-
   borne Hardware likewise sought to prevent lawful conduct--black
   citizens' patronage of white stores--that the government could not ban
   without violating the Equal Protection Clause. The Constitution
   protects
   rights against government interference; it doesn't justify the
   suppression
   of private speech that tries to deter people from exercising those
   rights.
   18 For precisely the same reasons, the district court could not enjoin
   the
   defendants based upon such protected statements. We must therefore
   vacate the injunction as well.
                                  3942
   VACATED and REMANDED with instructions that the
   district court dissolve the injunction and enter judgment for
   the defendants on all counts.

###



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