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[NOTE: This case has been edited for classroom use by the omission of text and citations. See this alternate source or another alternate source for only the order and injunction. Notwithstanding the court's order, the "Nuremburg Files" web page remains available online, albeit only as a historical document and only via the efforts of an overseas free speech advocate.]
Robert E. Jones, U.S. District Judge
AMENDED ORDER AND PERMANENT INJUNCTION
Plaintiffs, Dr. Robert Crist, Dr. Warren Hern, Dr. Elizabeth Newhall, Dr. James Newhall, Planned Parenthood of the Columbia/Willamette, Inc. and Portland Feminist Women's Health Center, doing business as All Women's Health Services (collectively "plaintiffs"), commenced this action seeking a permanent injunction, damages and other relief. The trial before the jury having been concluded, and the jury having found that defendants did issue true threats against plaintiffs, and this Court having found that plaintiffs are without an adequate remedy at law, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
I. The Threats
. . . .
C. The Nuremberg Files
16. The "Nuremberg Files" are a true threat to bodily harm, assault or kill one or more of the plaintiffs.
17. The Nuremberg Files list the names and contain personal information on abortion providers, clinic employees and clinic owners, law enforcement officials involved in securing access to abortion services, judges, politicians, and abortion rights supporters.
18. Dr. Robert Crist appears in the Nuremberg Files.
19. Dr. Warren Hern appears in the Nuremberg Files. A photograph of Dr. Warren Hern appears in the Nuremberg Files along with the address and telephone numbers of his medical offices.
20. Dr. Elizabeth Newhall appears in the Nuremberg Files.
21. Dr. James Newhall appears in the Nuremberg Files.
. . . .
23. The names of several doctors and employees of plaintiff Planned Parenthood appear in the Nuremberg Files . . . .
24. The (now former) executive director of plaintiff Portland Feminist Women's Health Center ("Portland Feminist"), Jude Hanzo, is listed and featured in the Nuremberg Files.
25. The names of doctors and clinic workers and security personnel who have been killed during attacks on abortion clinics are listed in the Nuremberg Files with strikes through their names. Those wounded, such as Dr. Tiller, are shaded in gray.
. . . .
27. The Nuremberg Files were unveiled in hard copy form by ACLA, with the assistance of Paul deParrie, at ACLA's January 1996 event in Washington, D.C.
28. Defendants Burnett and Crane organized the project with deParrie prior to the event. The other defendants approved of the project and agreed to its commission.
29. Defendants Bray, Burnett, Crane, Dodds, Dreste and Wysong attended the January 1996 ACLA event at which the Nuremberg Files were unveiled.
. . . .
32. Soon after the January 1996 ACLA event, Neal Horsley received hard copy Nuremberg Files from Paul deParrie. Horsley received two shipments of at least 22 hard copy files to be posted on the Internet. . . .
. . . .
II. Defendants Released Their Threats into a Known Atmosphere of Violence Against Abortion Providers
38. On March 10, 1993, Dr. David Gunn was shot and killed outside of the Pensacola, Florida clinic where he performed abortions. Michael Griffin has been convicted of this murder.
39. Prior to his murder, Dr. Gunn's name, photograph and other personal identifying information appeared on WANTED posters [prepared by John Burt; see ¶ 51, infra].
40. By January 1995, plaintiffs were aware of this murder and the posters that preceded it.
41. By January 1995, defendants knew of the murder of Dr. David Gunn and of the posters that preceded his death.
42. Defendants Michael Bray, Andrew Burnett, David Crane, Michael Dodds, Joseph Foreman, C. Roy McMillan, Catherine Ramey and Dawn Stover signed a "Defensive Action" petition circulated by Paul Hill declaring the murder of Dr. Gunn justifiable and calling for Griffin's acquittal.
. . . .
49. On July 29, 1994, Dr. John Bayard Britton, the doctor who had replaced Dr. Gunn and provided abortions at the same clinic where Dr. Gunn was murdered, was shot and killed along with his volunteer escort, James Barrett, while entering another Pensacola clinic. Mrs. Barrett, James Barrett's wife, was wounded in the attack.
50. Prior to his murder, Dr. Britton's name, photograph and physical description appeared on "unWANTED" posters [prepared by Burt and Hill; see ¶ 52, infra]. These posters contained the phrase "Crimes Against Humanity," also found on the Deadly Dozen poster, the Poster of Dr. Robert Crist and the Nuremberg Files.
51. Prior to these murders, defendants Burnett and Ramey visited John Burt in Pensacola, Florida. Burt had created the poster of Dr. Gunn and was one of the persons who had also prepared the posters of Dr. Britton along with Paul Hill. They discussed "wanted" posters at this meeting. Hill and Burt were videotaped taking photographs for the poster of Dr. Britton.
52. Paul Hill has been convicted of the murder of Dr. Britton and Mr. Barrett, and the attempted murder of Mrs. Barrett.
53. By January 1995, defendants were aware of the murder of Dr. Britton and the posters that preceded it.
54. By January 1995, plaintiffs were aware of the murder of Dr. Britton and the posters that preceded it.
55. Defendants Bray, Burnett, Crane, McMillan, Ramey and Stover signed a petition calling for the acquittal of Paul Hill. The petition was identical to that circulated by Hill in support of Michael Griffin.
. . . .
58. These murders were not isolated events. Violence in the anti-abortion movement continued, as chronicled in defendant ALM's magazine Life Advocate
. . . .
70. In October 1998, in his home outside of Buffalo, New York, Dr. Barnett Slepian, a doctor who performed abortions, was shot and killed by a sniper.
71. Dr. Slepian's name is crossed out on the Nuremberg Files website.
72. Violence against abortion providers has continued through today.
III. The Defendants
A. American Coalition of Life Activists ("ACLA")
73. ACLA is a coalition of people and organizations that held its first official event in August 1994 in Jackson, Mississippi. ACLA was formed in 1994 following a meeting in Chicago in April 1994 during which there was a split in the pro-life movement over the use of force. Defendants, many of whom had signed the Defensive Action petition approving the murder of Dr. Gunn, refused to commit to non-violence. Because they advocated the use of "force" and justifiable homicide, they were no longer allowed to be leaders of Operation Rescue and therefore agreed to form a new organization that became ACLA.
. . . .
76. Defendant David Crane is the president and national director of ACLA.
77. Defendant Andrew Burnett is the Regional Director of ACLA for the Northwest region.
. . . .
82. Defendant Charles Wysong is the Regional Director of ACLA for the Southeast region.
. . . .
89. In January 1996, ACLA unveiled the Nuremberg Files, which were subsequently posted on the Internet.
. . . .
91. ACLA uses intimidation as a means of interfering with the provision of reproductive health services.
92. Defendant American Coalition of Life Activists ("ACLA") violated or conspired to violate FACE [The Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248].
93. ACLA is an enterprise that engaged in a pattern of racketeering activity under RICO [The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68].
94. ACLA injured each plaintiff in the amount of compensatory damages awarded by the jury.
B. Advocates for Life Ministries ("ALM")
95. ALM was involved in the formation of ACLA, coordinates its Northwestern region, and is an active ACLA member.
. . . .
97. ALM publishes Life Advocate magazine.
98. Andrew Burnett is the executive director of ALM and the publisher of Life Advocate.
. . . .117. ALM maintained the hard copy Nuremberg Files at the Life Advocate offices during the course of this lawsuit. [Ed.: The online version of the Nuremeberg Files were apparently "linked to" an online verion of ALM's Life Advocate. See infra at ¶ 443.]
. . . .
118. ALM uses intimidation as a means of interfering with the provision of reproductive health services.
119. ALM has never dissassociated itself with, nor expressed disapproval of, any of ACLA's activities.
120. Defendant Advocates for Life Ministries ("ALM") violated or conspired to violate FACE.
121. ALM violated or conspired to violate RICO.
122. ALM injured each plaintiff in the amount of compensatory damages awarded by the jury.
D. Michael Bray
. . . .
129. Defendant Bray had multiple telephone conversations with other defendants during the time surrounding ACLA's January 1996 event, at which the Nuremberg Files were unveiled.
. . . .
149. Defendant Bray was part of the discussions with Neal Horsley and others about placing the Nuremberg Fiels on the Internet.
150. Defendant Bray, in his Fall 1997 issue of Capitol Area Christian News, informed his readers that Neal Horsley was collecting names and information for the Nuremberg Files..
. . . .
152. Defendant Bray uses intimidation as a means of interfering with the provision of reproductive health services.
153. Defendant Bray never dissassociated himself with, nor expressed disapproval of, any of ACLA's activities.
154. Defendant Bray violated or conspired to violate FACE.
155. Defendant Bray injured each plaintiff in the amount of compensatory damages awarded by the jury.
156. Defendant Bray acted with malice, in reckless disregard of plaintiffs' rights and with specific intent in threatening plaintiffs.
D. Andrew Burnett
157. Defendant Burnett is the executive director of defendant ALM.
158. Defendant Burnett is a co-founder of ACLA.
159. Defendant Burnett is a regional director of ACLA.
. . . .
164. Defendant Burnett is the publisher of Life Advocate magazine, A Time to Kill, by Michael Bray, and In Defense of Others, by Catherine Ramey.
. . . .
187. Defendant Burnett uses intimidation as a means of interfering with the provision of reproductive health services.
188. Defendant Burnett never dissassociated himself with, nor expressed disapproval of, any of ACLA's activities.
189. Defendant Burnett violated or conspired to violate FACE.
190. Defendant Burnett violated or conspired to violate RICO.
191. Defendant Burnett injured each plaintiff in the amount of compensatory damages awarded by the jury.
192. Defendant Burnett acted with malice, in reckless disregard of plaintiffs' rights and with specific intent in threatening plaintiffs.
. . . .
E. David Crane
193. Defendant Crane is the national director of ACLA.
. . . .
211. Defendant Crane has multiple telephone conversations with other defendants during the time surrounding ACLA's January 1996 event, at which the Nuremberg Files were unveiled.
212. Defendant Crane presented the Nuremberg Fiels at an ACLA event in January 1996.
213. Defendant Crane met with defendant Charles Wysong and with Paul deParrie and Neal Horsley to plan the Nuremberg Files Internet Project.
. . . .
221. Defendant Crane uses intimidation as a means of interfering with the provision of reproductive health services.
222. Defendant Crane never dissassociated himself with, nor expressed disapproval of, any of ACLA's activities.
223. Defendant Crane violated or conspired to violate FACE.
224. Defendant Crane violated or conspired to violate RICO.
225. Defendant Crane injured each plaintiff in the amount of compensatory damages awarded by the jury.
226. Defendant Crane acted with malice, in reckless disregard of plaintiffs' rights and with specific intent in threatening plaintiffs.
. . . .
N. Charles Wysong
402. Defendant Wysong is a regional director of ACLA.
. . . .
410. Defendant Wysong had multiple telephone discussions with other defendants during the time surrounding ACLA's January 1996 event, at which the Nuremberg Files were unveiled.
411. Defendant Wysong attended and spoke at an ACLA event in Washington, D.C. in January 1996 at which the Nuremberg Files were unveiled.
. . . .
413. Defendant Wysong met with defendant David Crane, Paul deParrie and Neal Horsley to plan the Nuremberg Files Internet project.
. . . .
416. Defendant Wysong was keenly aware of the effect posters such as the Deadly Dozen poster, the Poster of Dr. Robert Crist and the Nuremberg Files would have. He stated: "Listening to what abortionists said, abortionists who have quit the practice who are no longer killing babies but are now pro-life. They said the two things they feared the most were being sued for malpractice and having their picture put on a poster."
417. Defendant Wysong uses intimidation as a means of interfering with the provision of reproductive health services.
418. Defendant Wysong has never disassociated himself with, nor expressed disapproval of, any of ACLA's activities.
419. Defendant Charles Wysong violated or conspired to violate FACE.
420. Defendant Wysong violated or conspired to violate RICO.
421. Defendant Wysong injured each plaintiff in the amount of compensatory damages awarded by the jury.
422. Defendant Wysong acted with malice, in reckless disregard of plaintiffs' rights and with specific intent in threatening plaintiffs.
IV. Paul deParrie and Neal Horsley are Agents of the Defendants and ticipated in the Destruction of Documents
423. Paul deParrie is an agent of defendants ACLA, ALM and Burnett.
424. Neal Horsley is an agent of defendants ACLA, Michael Bray, Andrew Burnett, David Crane and Charles Wysong.
425. Horsley and deParrie conspired with the defendants in connection with the preparation and publication of the Nuremberg Files.
. . . .
427. DeParrie is the editor-in-chief of ALM's Life Advocate magazine, published by Andrew Burnett. DeParrie selects the news stories and commentaries that run in the magazine each month.
. . . .
433. DeParrie brought hard copy Nuremberg files from ALM's offices to the January 1996 event, at which deParrie was a featured speaker and gave a presentation on the Nuremberg Files along with defendant Crane.
434. DeParrie discussed creating the Nuremberg Files with defendants Burnett, Crane and Wysong.
435. DeParrie, Neal Horsley and defendants Bray, Crane and Wysong conceived of putting the Nuremberg files on the Internet.
. . . .
441. Horsley manages the Nuremberg Files on the Internet as an agent and co-conspirator of defendant [sic; should probably read "defendants" per ¶ 424, supra].
442. Horsley publishes defendant Bray's Capitol Area Christian News on his website.
443. The Nuremberg Files are linked to Life Advocate on Horsley's website.
. . . .
445. Horsley offered his website services specifically to defendants Crane and Bray.
. . . .
447. The Internet format for the Nuremberg Files was conceived by Crane, Wysong, deParrie and Horsley. Jr.
448. Horsley did what he was told with regard to the hard copy and Internet versions of the Nuremberg Files. He stated, "When I work for someone, I do what they tell me to do, and I'm scrupulous in making sure that what I'm doing is in harmony with what they want."
449. Soon after the ACLA event, Horsley received hard copies of the Nuremberg Files to be posted in the Internet. The cover letter with the files Horsley received contained ACLA's name and other text for the Nuremberg Files.
. . . .
V. Adequacy of Remedy
454. As a result of the defendants' issuance of these threats, plaintiffs have undertaken a variety of security measures in order to ensure their safety.
455. Based upon the evidence admitted a trial, the Court finds that plaintiffs remain threatened by the defendants' threats, and thus have no adequate remedy at law.
CONCLUSIONS OF LAW
456. From my independent review of the evidence produced at trial, from which I have made the above findings of fact, I conclude that plaintiffs have proven with clear and convincing evidence that each defendant, acting independently and as a co-conspirator, prepared, published and disseminated the Deadly Dozen poster, the Poster of Dr. Robert Crist and the Nuremberg Files.
457. I find that each defendant acted with specific intent and malice in a blatant and illegal communication of true threats to kill, assault or do bodily harm to each of the plaintiffs and with the specific intent to interfere with or intimidate the plaintiffs from engaging in legal medical practices and procedures. The term "threaten" as used hereafter incorporates this definition.
458. I totally reject the defendants' attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from providing abortion services.
459. The Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, provides that in an action brought by a "person aggrieved" by threats of force, "the court may award appropriate relief, including temporary, preliminary, permanent injunctive relief and compensatory and punitive damages, as well as costs of suit and reasonable fees for attorneys . . . ." 18 U.S.C. § 248(c)(1)(B). In its verdict, the jury found each defendant liable under FACE and awarded each plaintiff compensatory and punitive damages against each defendant.
460. FACE provides this Court with express statutory authority for injunctive relief, and the substantial evidence of continuing harm to plaintiffs from defendants' unlawful threats provides clear factual and equitable bases for issuance of an injunction. In light of that authority, the general equitable authority of the Court, and the Court's findings concerning the grave threat to each plaintiff's security and the likelihood of continuing harm from each defendant, on February 25, 1999, I issued a permanent injunction enjoining defendants from continuing their unlawful threats that place plaintiffs' lives in peril, and binding the defendants' agents, and those persons in active concert or participation with them. I now enter this amended order and permanent injunction, nunc pro tunc February 25, 1999.
461. Plaintiffs are entitled to permanent injunctive relief because they lack an adequate remedy at law. Each day, plaintiffs' lives and security are endangered because of defendants' unlawful threats against them. Monetary relief alone cannot address that harm. This Court has, therefore, the obligation to fashion equitable relief to protect the plaintiffs rights.
462. In deciding whether to grant permanent injunctive relief, the Court considers the balance of hardships or equities--weighing on one hand the harm to plaintiffs if the Court declines to prohibit the defendants' threats, and on the other hand the harm to defendants from an injunction ordering them to cease these activities. I find that the balance of hardships weighs overwhelmingly in plaintiffs' favor. In the absence of an injunction, plaintiffs will continue to live as they did before the trial: clad in bulletproof vests and disguises, borrowing cars and varying routes to avoid detection, and constantly in fear of the bodily harm with which they have been threatened.
463. By contrast, the prohibition of unlawful activities imposes no burden on defendants. Defendants may protest abortion using legitimate, lawful means.
464. The scope and terms of an injunction are determined by the extent of the underlying violation. This Court possesses great discretion in crafting an injunction and may frame it to "bar future violations likely to occur."
465. The law requires a higher level of scrutiny and proof for an injunction involving speech than for an award of damages for violation of a statute. I find the actions of the defendants in preparing, publishing and disseminating these true threats objectively and subjectivelyn1 were not protected speech under the First Amendment. Therefore, the Court issues the following permanent injunction against each defendant, their agents and those in active concert or participation with them, and specifically against Paul DeParrie, an employee and agent of defendant Advocates for Life Ministries, who conspired with Neal Horsley of Carrollton, Georgia, to provide the specific information for the Nuremberg Files and who thereafter obstructed justice by destroying or assisting in concealing the materials he provided to Horsley to convert into true threats on his web site.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
1. Under the equitable powers of this Court and the Court's authority granted under the Freedom of Access to Clinics Entrances Act ("FACE"), 18 U.S.C. § 248, defendants AMERICAN COALITION OF LIFE ACTIVISTS, ADVOCATES FOR LIFE MINISTRIES, MICHAEL BRAY, ANDREW BURNETT, DAVID CRANE, MICHAEL DODDS, TIMOTHY PAUL DRESTE, JOSEPH L. FOREMAN, CHARLES ROY MCMILLAN, BRUCE EVAN MURCH, CATHERINE RAMEY, DAWN MARIE STOVER, DONALD TRESHMAN and CHARLES WYSONG (collectively "defendants"), and their agents and all persons in active concert or participation with any of them who receive actual notice of this Order and Permanent Injunction or the "Notice" attached as Exhibit A to this Order, are hereby immediately and permanently ENJOINED and RESTRAINED from committing any of the following acts or aiding, abetting, directing or facilitating others to commit or conspiring with any others to commit the following acts:
2. Defendants and their agents and all individuals in active concert or participation with any of them who receive actual notice of this Order and Permanent Injunction or the attached "Notice" shall promptly submit to the custody of the Court all materials in their possession, custody or control that are not in compliance with the provisions of this Permanent Injunction, except that counsel for the defendants may retain one copy of any such materials that were included in the Record of this Court.
3. Willful violation of this Order and Permanent Injunction or any other of this Court's orders may subject any person who commits such an act to criminal and/or civil prosecution for contempt of this Court. Any violation of this Order and Permanent Injunction will result in immediate issuance of an order to show cause for service on the violator, who after appropriate hearings and findings, will be dealt with within the sanctions provided by law.
4. Defendants, and their agents and all persons in active concert or participation with any of them, are hereby ENJOINED and RESTRAINED from disposing of, secreting, pledging, encumbering, conveying, transferring, damaging, mortgaging, or otherwise disposing or removing from its customary location or in any other way making unavailable to the processes of the court, any of their real property or personal property, including, but not limited to, cash, bank accounts, retirement plans, bonds, and other securities, liquid assets and personal property regardless of whether the property is held jointly with another person or individually by the defendant.
5. This Court shall retain jurisdiction of this action for all purposes, including without limitation, all proceedings involving the interpretation, enforcement or amendment of this Order and Permanent Injunction.
DATED this 16th day of March, 1999, nunc pro tunc February 25, 1999.
1 For the purposes of this Order and Preliminary Injunction, I consider a person to make a "true threat" when the person makes a statement that, in context, a reasonable listener would interpret as communicating a serious expression of an intent to inflict or cause serious harm on or to the listener (objective); and the speaker intended that the statement be taken as a threat that would serve to place the listener in fear for his or her safety, regardless of whether the speaker actually intended to carry out the threat (subjective).
2 A "mirror web site" within the meaning of this Order means a web site created by an independent party who takes the content from a web site and reproduces it on his or her own computer ("the web server") and locates it at a different Internet address.
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