- The Washington Times - Tuesday, June 3, 2003

The Bush administration recommended in a Supreme Court brief made public yesterday that the justices not hear a free-speech appeal by pro-life protesters in the “Nuremberg Files case.”

The court had asked Solicitor General Theodore B. Olson for his view of the $109 million judgment against sponsors of Old West-style “wanted” posters targeting doctors who perform abortions, and their Web site.

Mr. Olson’s advice to reject the appeal is not binding, but the government view prevails on most occasions when the court invites the former’s counsel in a case to which it is not a party.

The 9th U.S. Circuit Court of Appeals had approved the legal basis for the verdict, but its 6-5 vote ordered a lower court to review the size of the civil judgments against the pro-life protesters under a racketeering law and the 1994 Freedom of Access to Clinic Entrances Act.

Several physicians sued after three doctors portrayed on the posters were slain. The physicians said in their lawsuit that they feared for their lives. At issue is whether the posters crossed the line from politics to threat by terming abortions as crimes against humanity.

Lawyer Edward L. White III of Ann Arbor, Mich., an attorney for the American Coalition of Life Activists in its appeal against the Planned Parenthood victory, said he was disappointed that a pro-life president’s administration would rank his clients’ speech rights lower than those of Ku Klux Klansmen who burn crosses.

“We think that the United States of America should support the free speech of all groups,” Mr. White said, objecting to Mr. Olson’s recommendation.

“It sounds to me like an artful dodge,” said Stephen Crampton, chief attorney for the American Family Association Center for Law and Policy in Tupelo, Miss., which encouraged the court to review the decision.

He said he is not surprised that President Bush’s administration would not want to “open that can of worms at the Supreme Court and publicly take a stand” on pro-life protests, despite Mr. Bush’s opposition to abortion.

New York lawyer Maria T. Vullo, who represents Planned Parenthood and others who sued over the posters, insisted last year that the posters were criminal acts, and that there were no constitutional issues to decide.

“In my view this case is about threats of violence, and law enforcement, including the solicitor general, should be concerned about the conduct of the defendants in this case. My position is a law-enforcement position that supports prosecution of people who threaten violence,” Ms. Vullo said.

The “Nuremberg files” case raises First Amendment issues similar to two Virginia cases in which the justices ruled in April that a burning cross is so terrorizing that free-speech concerns are secondary.

“Wanted-style posters targeting abortion providers do not have as extensive an association with violence as does cross burning,” Mr. Olson wrote, pointing out that many doctors on the posters had not been hurt.

“For example, at the time of the events at issue here, only three abortion providers had been killed after the issuance of posters identifying them,” he said.

While the 9th Circuit judges conceded that the posters contained no statements threatening the doctors, legal filings termed the posters and Web site part of a “hit-list” campaign related to five murders, nine attempted murders, five bombings and 30 instances of arson from 1992 to 1994.

A solicitor general is under no time constraint to reply when the court invites his opinion. Mr. Olson filed the brief Friday, 5 months after being asked.

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