How Can the Constitution Protect Threats to Abortion Providers?


In 2011, radical anti-abortion activist Angel Dillard sent a letter to Dr. Mila Means, who at the time was preparing to start offering abortion services at the clinic of the late Dr. George Tiller, in which she offered up her “vision” of what life would be like for Means should she start providing abortions in Wichita. In her letter, Dillard wrote that thousands of people from across the country were scrutinizing Means’ background and would know “your habits and routines. They know where you shop, who your friends are, what you drive, where you live.” Dillard wrote, “You will be checking under your car every day—because maybe today is the day someone places an explosive under it.”

On Thursday, a federal judge ruled those statements were constitutionally protected speech because they did not constitute a “true threat” under existing law.

The ruling came as U.S. District Judge J. Thomas Marten granted summary judgment in favor of Dillard and dismissed the 2011 civil Freedom of Access to Clinic Entrances (FACE) Act lawsuit brought by the U.S. Department of Justice against Dillard. In bringing its claims against Dillard, the department argued those statements concerning explosives were enough to constitute a threat against Means. Dillard, on the other hand, argued the letter was nothing more than an exercise of her First Amendment rights and, because it wasn’t a “true threat,” protected speech.

But how is it that the court could find that ominous language warning of explosives placed under Means’ car wasn’t a threat? The answer lies largely in the muddled mess that is First Amendment jurisprudence.

The First Amendment protects a whole bunch of speech that many of us may find offensive and disgusting, just as the First Amendment makes it clear that the government cannot silence and punish speakers just because it dislikes their speech. But even though the First Amendment protects speech, like tobacco advertising and most speech we’d think of as hate speech, doesn’t mean its protections are absolute. There are several categories of speech not protected by the First Amendment, including fighting words, obscenity, perjury, false advertising, and, like in the Dillard case, true threats.

But the line between protected expression and an unprotected true threat is often hazy and uncertain, and the Supreme Court has done little to bring clarity. The Court first addressed a true-threat case in the civil-rights case Watts v. United States. In that case, Robert Watts, a young African-American man, allegedly stated during a protest in Washington, D.C., “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is [President Lyndon Johnson]. They are not going to make me kill my Black brothers.”

Based on those statements, prosecutors charged Watts with violating a federal law that prohibits threats against the president. Watts argued that his statement was a form of crude political opposition and didn’t represent any true threat to the president. After trial, a federal jury convicted Watts and a federal appeals court affirmed his conviction. But on appeal, the Supreme Court reversed, ruling that Watts’ statement was political hyperbole rather than a true threat. The Court said:

We agree with [Watts] that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

As is often the case with Supreme Court jurisprudence, while the Court was able to distinguish Watts’ speech from an unconstitutional threat it failed to define what constitutes, for constitutional purposes, a true threat, and unfortunately the next time it looked at the issue it did little to clarify the law. The Court next addressed the issue of true threats in NAACP [National Association for the Advancement of Colored People] v. Claiborne Hardware. In that case, the Court unanimously reversed a finding that Charles Evers and the NAACP could be found civilly liable for speech advocating the boycott of certain white-owned businesses because such speech was protected by the First Amendment. Evers, field secretary for the NAACP in Mississippi, had given a series of passionate speeches encouraging fellow African Americans to participate in the boycott, including statements like “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The Court found that Evers’ comments did not constitute fighting words or a true threat, concluding that “Evers’ addresses did not exceed the bounds of protected speech.” While most of the decision in Claiborne Hardware examines whether Evers’ speech incised imminent lawless action, it did send an important signal that charged political advocacy is unlikely to be considered a true threat.

It would be two decades before the Supreme Court more directly addressed the issue of true threats in a pair of Virginia cross-burning cases, collectively known as Virginia v. Black. In the companion cases, one involved a Ku Klux Klan leader named Barry Elton Black who, with the permission of the property owner, burned a cross in a field. The other case involved two individuals who burned crosses in the yard of a neighboring African-American family. The Supreme Court consolidated the two cases to look at the constitutionality of a Virginia state law that prohibited “any person or group of persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.” Another provision of the law created a presumption that all cross-burnings were done with an intent to intimidate given the nature and history of cross-burnings and its affiliations with violent white supremacists.

In a 7-2 decision, the Court upheld the bulk of the Virginia law, but invalidated the section that provided that all cross-burnings were presumed to be intimidating. In deciding the issue, Justice Sandra Day O’Connor, in her plurality opinion, offered this definition of true threats:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.

She continued, “intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Not surprisingly, O’Connor’s test prompted as many questions as answers, in large part because it left unclear what level of intent is necessary for a speaker’s words to be considered a true threat. Must a speaker subjectively intend to intimidate or threaten others, or is it sufficient if the speaker makes a comment that a recipient reasonably believes is a threat?

The answers to these questions have been mixed. Lower courts continue to struggle to define true threats and apply the Court’s precedents from Watts and Black, and the result is a confused mess of law. Some courts have determined that in order for speech to constitute a true threat, there must be some subjective intent to threaten someone by the speaker. They don’t have to actually intend to carry out the threat, just that the speaker subjectively intends that his or her comments be interpreted as a true threat. Other courts have interpreted Virginia v. Black to require only that the speaker knowingly intended to communicate to another person. These courts do not require that it be proven that the speaker subjectively intended to threaten someone; rather, they focus on whether there was an intent to communicate and whether an objective or reasonable recipient would regard it as a serious expression of harm.

More directly, in 2002 the Ninth Circuit Court of Appeals held in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists that statements on a website known as the Nuremberg Files, which listed abortion providers with lines drawn through names if they were killed, and “wanted posters,” along with the personal information about clinic workers posted to the site, were “true threats” and unprotected by the First Amendment. In the majority’s view, the critical factor for determining if the speech was a threat was not what the protesters intended by the wanted posters, or even the actual words on the posters. Rather, the majority held the “pattern” in which the posters appeared coupled with the fact that other abortion providers had been killed transformed the posters into something of a symbolic threat. In 2003, the Supreme Court declined to review the ruling, leaving in place the Ninth Circuit’s decision.

But how exactly is one supposed to offer proof of a speaker’s threatening intent when, like the Dillard case, the speaker naturally denies she was making a threat to begin with? The court’s opinion in the Dillard case highlights just how difficult this is. Earlier in the case, the federal court had granted the Department of Justice’s request for more time to conduct additional discovery, or investigations, into evidence to prove Dillard intended to threaten Means. That time was, apparently, to no avail. The court wrote:

[M]uch of the government’s evidence on the issue of intent is simply inadmissible or based on impermissible speculation—an anonymous tip letter, the (erroneous) suggestion that Dillard has not participated in other anti-abortion activities, hearsay evidence of the prison communications by the murderer Roeder, which have not been linked in any way to Dillard. As before, the government offers the testimony of Dr. Means, who concedes that she has no direct knowledge of Dillard’s intent, explicitly acknowledging she has no knowledge of any propensity to violence by Dillard.

Because the Department of Justice was unable to produce admissible evidence to Dillard’s intent, the court was left with only the letter itself to try and discern intent. “Turning to Dillard’s letter to Dr. Means, it is clear that the threat is predictive and contingent, and addresses a danger which is not imminent in nature.” Among the factors the court considered in determining that Dillard’s threats were merely “contingent” was the fact that the letter made no reference to any imminent danger. The court compares Dillard’s letter to another in the United States v. Viefhaus case, where the sender alleged that bombs in 15 major cities would detonate within a week of the communication. Unlike the letter in Viefhaus, the court concluded that Dillard’s letter not only lacked any specific time frame, it was “doubly conditional.” “First,” the court reasoned, “the danger is intendant on the establishment of the planned clinic (which could take months or years). Second, and even then, the letter proposes only a possibility, that ‘maybe’ such a bomb will be placed.” Without more detail, the court held, it was impossible for it to find Dillard’s letter was anything akin to an actual threat against Means.

In trying to convince the court otherwise, the government stressed the letter’s reference to the murder of Dr. Tiller by Scott Roeder to suggest the threat could be inferred. But, the court noted, the government supplied nothing else in the way of additional evidence to show that Dillard supports Roeder’s methods and his goals of violence. To the contrary, the court wrote, Dillard’s letter “has not been linked to any recent anti-abortion violence, nor is there any suggestion that such bomb warnings have acquired any specific ‘currency as a death threat for abortion providers,’ as the ‘wanted’ posters had in Planned Parenthood of Columbia/Willamette,” the Ninth Circuit decision involving the Neuremburg Files website. “There is no evidence directly linking Dillard to any acts of clinic obstruction or violence. There is no evidence of repeated communications directed at Dr. Means, only a single passage in a single letter, and this sent openly under her own name.”

As to Dillard’s claims that she was simply trying to “educate” Means as to what life as an abortion provider in Wichita would look like, the court was skeptical, but, in the face of no evidence from the Department of Justice to rebut Dillard’s testimony, had little choice but to accept it, noting Means “testified that she had no knowledge that Dillard would become violent, but she ‘couldn’t rule it out.’”

The thing is, the Department of Justice needs a lot more than a witness who “can’t rule out” violence to meet its burden of proving a FACE Act violation, a fact the court made clear. As noted earlier, Dillard’s letter suggests that at some indefinite, future time, “someone” may act violently against Dr. Means—scary and threatening, yes, but even in the murk of First Amendment law the courts have been clear about the fact that before the state can act it has to have something in the way of actual detail to justify the constitutional intrusion. But the government offered nothing more than Dr. Means’ admitted speculation that it is “quite possible” that Dillard may be “a spokesperson that would incite others to violence.” As the court said:

Dr. Means acknowledges that she knows nothing of Dillard’s propensity to violence, and indeed that she has received the same sort of warnings from her own family. Dillard sent a single letter to Dr. Means, under her own name, in an envelope bearing her return address. The letter makes no reference to any violent action by Dillard. After much discovery, the government has failed to point to specific, non-speculative evidence showing such ongoing plans or threats.

The Department of Justice has the ability to appeal the ruling, and it’s not yet clear if it will. In many ways the decision is about as bad as it can be for the Justice Department and reproductive rights advocates in the state—not only has it emboldened the anti-abortion fringe in the state by “vindicating” Dillard and Roeder, the prosecution has reportedly strained ties between local law enforcement and federal officials at a time when the battle over abortion access in Wichita is heating up once again. And if anti-abortion activists are intent on stretching the limits of the First Amendment to shield their vulgar and sometimes deadly rhetoric, then whether or not the federal government wants to challenge this ruling may be irrelevant, because, like they’ve done repeatedly in Kansas, anti-abortion forces will simply do as they please regardless of what move the Department of Justice makes.

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