1

1 Case No. 99-35320

2

3 P R O C E E D I N G S

4 MR. FERRARA: I would respectfully

5 reserve five minutes of my time for rebuttal if

6 that's possible.

7 JUSTICE KOZINSKI: You've got a clock in

8 front of you.

9 MR. FERRARA: Yes.

10 JUSTICE KOZINSKI: Whatever is left on

11 the clock when you sit down is what you'll

12 (inaudible).

13 MR. FERRARA: Thank you, Your Honor.

14 Your Honor, this case has received a

15 great deal of attention, not only in the media,

16 but in the legal community, including the very

17 excellent law review article in 78 Texas Law

18 Review by Professor Gey.

19 The reason this case has received so much

20 attention is that something happened in this

21 case which has never happened before, I believe,

22 in American jurisprudence. Three forms of

23 classic political protest, two posters and a web

24 site, were used as the basis for liability under

25 RICO and FACE resulting in an award of damages

2

1 which aggregates in $107,000,000, most of which

2 is punitive damages.

3 At the summary judgment stage, the

4 District Court acknowledged that the

5 communications at issue are devoid of any

6 expressly or even apparently threatening

7 language. That, in itself, is an unprecedented

8 departure from prior case law.

9 All of the reported threat cases involved

10 some particular words or phrases which the Court

11 focused upon at some point in the litigation to

12 determine whether there was something worthy of

13 a trial.

14 JUSTICE KLEINFELD: Could you deal with

15 the bumper sticker?

16 MR. FERRARA: Yes. The bumper sticker

17 was disposed in the summary judgment stage for

18 the simple reason that a bumper sticker

19 expressing the constitutionally-protected

20 opinion that capital punishment should apply to

21 those who perform abortions is generic political

22 protest not directed to anyone in particular and

23 this --

24 JUSTICE KLEINFELD: So you won on the

25 bumper sticker?

3

1 MR. FERRARA: Yes, we did.

2 JUSTICE KLEINFELD: And therefore, you

3 don't need to show that the bumper sticker is

4 protected speech, because there's no cross

5 appeal.

6 MR. FERRARA: That's right.

7 JUSTICE KLEINFELD: Is that right?

8 MR. FERRARA: Yes.

9 One aspect of our objection eventually

10 speaking is that the bumper sticker was used as

11 context for the opinions of all of the

12 defendants even though only some of them used

13 this bumper sticker. That's an evidential

14 issue.

15 JUSTICE KLEINFELD: Why couldn't it be?

16 The bumper sticker strikes me as far more

17 explicit than the posters in raising a question

18 here. Why couldn't it show what the intention

19 was of the posters?

20 MR. FERRARA: Well, if it's admitted for

21 intention only, it might be relevant as to an

22 individual defendant. The unique problem in

23 this case, which prompted many objections from

24 us orally and in writing is that you have an

25 alleged conspiracy to engage in speech in which

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1 someone's bumper sticker, by reason of his mere

2 association with other people, becomes the

3 context to the speech of the other 14 or 15

4 defendants and I believe Amicus ACLU --

5 JUSTICE KLEINFELD: So you're saying at

6 most the bumper sticker could be held against

7 people who put that bumper sticker on their car?

8 MR. FERRARA: Yeah. If you had a

9 bifurcated case and one person was on trial

10 perhaps there would be some relevance there.

11 If, again, you were dealing with a threat in the

12 first place, which brings me back to the

13 fundamental constitutional issue here.

14 JUSTICE KLEINFELD: Was there any

15 cautionary instruction, "Only hold it against

16 the people who had that bumper sticker on their

17 car" --

18 MR. FERRARA: The problem was --

19 JUSTICE KLEINFELD: To show what there --

20 MR. FERRARA: Yes, there was such an

21 instruction during the trial, but we objected

22 pretrial and by way of motion in limine to the

23 process of having the jury sift through

24 literally thousands of individual

25 pronouncements, bumper stickers, opinions

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1 expressed at various times, and try to figure

2 out which of these opinions should be held

3 against everybody as declarations of

4 coconspirators, and which would only be

5 admissible to show the intent of an individual

6 defendant. This, too was unprecedented.

7 In the Dinwiddie case, her own statements

8 were used against her to characterize her later

9 speech which was, of course, specifically

10 threatening as to the doctor in that case.

11 In this case, constitutionally-protected

12 opinions, none of which were threatening, by

13 some effects were used to characterize the

14 speech of a whole group of defendants when the

15 speech being characterized was itself not

16 threatening.

17 JUSTICE KOZINSKI: Well, what about

18 Gilbert, that white supremacist case?

19 MR. FERRARA: Yes.

20 JUSTICE KOZINSKI: I am trying to

21 remember the names of these cases.

22 MR. FERRARA: Yes, Your Honor. Gilbert

23 -- I'm sorry.

24 JUSTICE KOZINSKI: You would characterize

25 that as a direct threat case, as a explicit

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1 threat case? Let's -- the plaintiffs so clearly

2 characterize it as something else.

3 MR. FERRARA: Yes. Well, again, this

4 fits the pattern of all prior threats

5 jurisprudence. Gilbert issued a communication

6 which says, "White persons consorting with

7 blacks will be punished by death automatically

8 by public hanging," an explicit threat to kill

9 people. And we don't even approach that in this

10 case which is why, as I say, it's proffered so

11 much commentary.

12 This is a sui generis case involving

13 nonthreatening speech in which a context of

14 nonthreatening opinions was used to make the

15 nonthreatening speech a threat. In essence,

16 (inaudible) up to get to one.

17 JUSTICE KOZINSKI: But there is another

18 thing about this case that is sort of unique in

19 that people have actually gotten killed. Nobody

20 got killed in Gilbert, even Claiborne Hardware,

21 nobody got really injured.

22 Here we have as part of the background

23 the fact that there were posters and things in

24 the past and people have actually gotten shot or

25 mostly shot, right, if I remember correctly.

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1 And that sort of elevates a level of violence

2 that's inherent in anything you say in that

3 context.

4 You know, if you want to sort of talk

5 about what's unique about this case, isn't that

6 one of the things you have to deal with?

7 MR. FERRARA: Yes.

8 JUSTICE KOZINSKI: People -- there have

9 been prior posters, there have been prior

10 publications like this, and then somebody got

11 killed.

12 MR. FERRARA: Sure. And you've touched

13 there on a unique aspect of this case which led

14 to a constitutionally horrendous result because

15 of that unique fact.

16 My view on this is very simple. If we're

17 going to say, Your Honor, that a classic form of

18 political protest, the condemnatory poster, must

19 be ruled out in the future as a potential threat

20 merely because out of thousands of posters

21 circulated in the pro-life movement, two of

22 those had some temporal relationship to the

23 death of the object of the political protest,

24 then I think we've extinguished first amendment

25 liberties and a huge area of speech, and that

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1 principle could be applied across the board to

2 any form of political protest which our

3 political opponent could temporally link to

4 violence.

5 JUSTICE KLEINFELD: Well, it's a little

6 more than temporal linking, isn't it?

7 Circumstances are similar. These posters in the

8 eyes of the observer, the plaintiffs, reflect a

9 set of circumstances that in the past led to the

10 killing of others similarly situated. There is

11 a pretty close connection there. Wouldn't you

12 say a plaintiff could reasonably -- reasonably

13 feel threatened by the posters?

14 MR. FERRARA: Well, let's put the worst

15 case scenario on that and say a person

16 identified in these posters might be afraid

17 because people named in posters before were

18 killed by unrelated third parties.

19 JUSTICE KLEINFELD: Well, you'd have to

20 know that.

21 JUSTICE KOZINSKI: I'm sorry.

22 MR. FERRARA: There was no -- there was

23 no claim --

24 JUSTICE KOZINSKI: When you say the word

25 "unrelated," you mean unrelated to these

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1 plaintiffs or unrelated to the people who put

2 them up --

3 MR. FERRARA: Unrelated to any

4 defendant --

5 JUSTICE KOZINSKI: Let me finish my

6 question.

7 MR. FERRARA: Sure.

8 JUSTICE KOZINSKI: Maybe you'll be able

9 to answer the question I'm actually asking.

10 Unrelated to any of the parties in this

11 case or unrelated to the people who put out the

12 earlier poster?

13 MR. FERRARA: Unrelated to anybody that

14 we know of because there was no claim at trial

15 that the posters incited anyone to kill anybody,

16 and the judge specifically told the jury that

17 there was no claim in this case that anyone who

18 did the shootings even saw the posters

19 beforehand.

20 So what we had at trial is nothing more

21 than a temporal relationship. And the problem

22 with that theory is that if you can say that

23 merely because a similar form of political

24 protest in the past has a temporal link to

25 violence, and you don't even have to prove that

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1 those who are putting out the posters today

2 intend to commit violence themselves, then it's

3 a post hock ergo proctor hock argument by which

4 entire categories of speech can be abolished,

5 and that's exactly what happened here.

6 Granted, someone named in a poster might

7 be apprehensive at the mere fact that a poster

8 is published might prompt somebody reading the

9 poster to take violent action. That is nothing

10 more than a disguised incitement theory, a

11 constitutional non-starter which the plaintiffs

12 abandoned at the 12(b)6 motion practice stage.

13 JUSTICE KLEINFELD: Well, suppose that

14 the poster said, "Somebody is going to get you

15 or Mr. X is going to get you," addressed to the

16 doctor; not, "I'm going to do it, but somebody

17 else is going to do it." Would that be a

18 threat?

19 MR. FERRARA: Well, that's a tougher case

20 because the poster said Mr. X is going to get

21 you, I suppose it could be inferred that Mr. X

22 has some relation to the author of the poster

23 and is under the author's control and will be

24 sent to kill this particular doctor. Of course,

25 we don't have anything like that here.

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1 On the contrary, Your Honor, we have

2 posters which call for nothing but legal protest

3 activities, writing, leafleting, picketing,

4 asking the doctor to turn away from killing

5 toward healing his patients. There is nothing

6 remotely approaching that here.

7 JUSTICE KOZINSKI: Does the threat

8 whether it's a danger of harm have to be caused

9 by the people making the speech? I mean, you

10 could, for example, say if we put ourselves in a

11 different time and place. Let's say we're back

12 in Germany in the '30s, and somebody in town

13 says, "Here is the list of all the Jews in

14 town," and there's no implication that the

15 person that puts out the list will actually do

16 anything.

17 But he can count on the fact that there

18 are other people in town who say, "Oh, well, now

19 that we know where they are, who they are, where

20 they live, and where their business is, that's

21 very good information to have. I'm glad they

22 were outed, so to speak, we'll take it on

23 ourselves to harass them."

24 That's a threat. In order for something

25 to be a threat, does it have to simply -- does

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1 it have to be something saying, "I will initiate

2 violence," or is it enough to put out facts

3 which then can reasonably be believed to cause

4 other people or to facilitate other people

5 causing violence?

6 MR. FERRARA: Well, Your Honor, if we're

7 saying that a publication of a list of people

8 calling attention to those people could provoke

9 violence against them, that again is an

10 incitement theory and nothing but an incitement

11 theory, which can't possibly satisfactory the

12 Brandenburg criteria.

13 JUSTICE KOZINSKI: No, no, no. If, in

14 fact, violence ensues then you've got an

15 incitement problem.

16 MR. FERRARA: Right.

17 JUSTICE KOZINSKI: But we have a threat

18 problem and a threat can exist, you know, your

19 name shows up on the list and all of a sudden

20 you're afraid, "Oh, my God, I'm afraid," whether

21 anything happens or anybody is actually caused

22 to do this, and you say, "Now people know where

23 I am. They know where my children go to school.

24 They know, you know, where I live. They know

25 who my wife is, you know, And somebody's now

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1 going to be able to cause us violence."

2 You'd feel threatened or you'd feel in

3 danger whether or not there is actual incitement

4 of anyone.

5 MR. FERRARA: True, and the

6 constitutional problem here is that feeling

7 threatened because you were placed on a list

8 does not mean that you have been threatened. It

9 means that you are afraid of being exposed

10 because others may be prompted to do something.

11 If the mere publication of a list the object --

12 JUSTICE KOZINSKI: But that's the

13 question. Can you not, in fact, be threatened

14 even though the speaker does not initiate the

15 violence? Let's say you have a rally and all

16 the defendants and their sympathizers in a

17 group, and all have a sudden the speaker notices

18 Dr. Crist in the audience who foolishly showed

19 up there in disguise.

20 And the speaker says, "There he is, there

21 is the man. By the way, don't hurt him, don't

22 do anything. We want to be totally peaceful."

23 And of course, a crowd can't be controlled and

24 the person identified was feeling fear, you

25 know, until he made it out of the crowd. Gee,

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1 somebody might do something about it. Can't you

2 feel threatened even though the speaker does not

3 intend violence?

4 MR. FERRARA: Well, that's the point I'm

5 trying to make. If threat liability could be

6 premised upon the mere identification of someone

7 which makes him feel threatened merely because

8 he's been identified, then we have departed from

9 all threat jurisprudence that I know of because

10 a threat case requires a statement of the

11 speaker's intention, the speaker's intention to

12 inflict bodily harm or to kill someone.

13 JUSTICE KLEINFELD: But it doesn't say

14 anywhere in the cases that it has to be the

15 speaker's intention. That's the ambiguity about

16 the test. It said a serious expression of

17 intent to harm, but it could be -- that could

18 include intent to have harm ensue even though

19 it's imposed or inflicted by other people.

20 MR. FERRARA: Yes, but if we're saying

21 that mere identification of someone suffices for

22 an expression of an intent and harm ensue, we've

23 ruled out all kinds of speech. Because then

24 your saying, Your Honor, that if you publish a

25 newspaper article critical of an abortion doctor

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1 and you say, "We feel this man is butchering

2 innocent human beings, go to his office and

3 protest," under that theory, it's a threat.

4 JUSTICE KLEINFELD: I guess under that

5 theory we could shut down that APB --

6 MR. FERRARA: Absolutely.

7 JUSTICE KLEINFELD: -- column that put

8 out the federal judges financial statements and

9 shows where our children live and where our

10 homes are and all that.

11 MR. FERRARA: Absolutely. In fact, one

12 of the issues at trial was that the database of

13 physicians available to the public has far more

14 personal information about doctors than anything

15 in these posters, including children, college

16 degrees, places of employment.

17 JUSTICE KLEINFELD: Speaking of that,

18 could you clear me up. I am not really clear on

19 what the defendants' relationship to the web

20 cite is.

21 MR. FERRARA: This was an interesting

22 issue I produced at trial Mr. Neil Horsley

23 and --

24 JUSTICE KLEINFELD: It's Neil Horsley's

25 web site?

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1 MR. FERRARA: Absolutely. And the

2 District Court made it quite clear that --

3 JUSTICE KLEINFELD: Is Horsley a

4 defendant?

5 MR. FERRARA: No, he was never sued. And

6 the thing that Horsley said, which was one of

7 the lighter moments in this trial was something

8 along the lines of, "Frankly, I'm a little

9 miffed that you people have taken others and

10 given them credit for my work." He was annoyed

11 that people were trying to attribute his web

12 site to my clients.

13 Now, there was some minimal involvement

14 because the ACLA for approximately two weeks

15 lent it's name to the concept, but then the

16 trial testimony --

17 JUSTICE KLEINFELD: What does that mean,

18 "Lent its name to the concept"?

19 MR. FERRARA: The concept of having these

20 political show trials in the future, there's no

21 question the ACLA's name appeared on the site

22 for a couple of weeks. But the uncontradicted

23 trial testimony, and I believe everybody

24 concedes this is that very shortly thereafter --

25 JUSTICE KLEINFELD: So for two weeks ACLA

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1 had let its name be used on the web site.

2 MR. FERRARA: That's right.

3 JUSTICE KLEINFELD: And then they said,

4 "No, you cannot use our name."

5 MR. FERRARA: That's right. Now, what

6 happened is Mr. Crane reviewed the content of

7 Mr. Horsley's web site and found it distasteful

8 and said, "I don't want to be associated with

9 the other aspects of the site," and the name was

10 removed. In fact, there was no prior

11 authorization for the site, although there was

12 acquiescence for a couple of weeks. But the

13 bottom line of the web site is, here, too, we're

14 dealing with classic political speech.

15 JUSTICE KLEINFELD: So then they told

16 Horsley to pull it and he did pull it.

17 MR. FERRARA: Yes, he did, Your Honor.

18 JUSTICE KOZINSKI: He pulled the name.

19 MR. FERRARA: Yes.

20 JUSTICE KOZINSKI: The web site remains.

21 MR. FERRARA: That's right -- well, the

22 web site was shut down. One of the consequences

23 of this case is that the carriers of the web

24 site, even the trunk line carriers on the

25 Internet refused to allow him to carry the web

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1 site.

2 JUSTICE KOZINSKI: Did the web site say

3 to kill anyone?

4 MR. FERRARA: No, it didn't.

5 JUSTICE KLEINFELD: It looked to me as

6 though what the web site was doing was asking

7 for information about people, at some day in the

8 future popular sentiment would be different and

9 they would go on trial like the Nazi war

10 criminals?

11 MR. FERRARA: Precisely.

12 JUSTICE KLEINFELD: Was that -- that was

13 just --

14 MR. FERRARA: Yes. And the odd thing,

15 Your Honors, in this case is that the web site

16 has been mirrored by free speech advocates --

17 you can find it on the web today -- who think

18 that my clients, the defendants' point of view

19 is reprehensible, but say, "Look, this is

20 constitutionally protected," and the mirror site

21 says, "We are mirroring the site to stand up for

22 free speech."

23 You can go to that cite today, there is a

24 mirror cite somewhere in Europe.

25 JUSTICE KLEINFELD: I think it had a lot

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1 of people besides abortion doctors, didn't it?

2 Didn't it have a bunch of judges on our court

3 and senators and president and that kind of

4 thing?

5 MR. FERRARA: As Professor Gey's Law

6 Review article points out, there were over 500

7 people mentioned. And he notes quite

8 trenchantly there, that the shear number of

9 people militates against any possible finding

10 that there is a serious threat against these 500

11 people including the president and Whoopi

12 Goldberg and --

13 JUSTICE KOZINSKI: The web site was just

14 a list of names, though. It didn't contain

15 addresses.

16 MR. FERRARA: No. No, it didn't.

17 They're were a couple --

18 JUSTICE KOZINSKI: It doesn't tell you

19 how to find Justice White, who for some reason

20 is also listed.

21 MR. FERRARA: No. That is an interesting

22 point. Even though the web site doesn't,

23 Plaintiff Hern, in this case, has a web site.

24 JUSTICE KLEINFELD: What is the -- I

25 never really understood what was so bad about

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1 the idea of a pretend Nuremberg trial. I know

2 there was a famous case that was a pretend case

3 that Professor John Dewey put on trying the

4 Communist party for the show trials that it had

5 done of the old Bolsheviks, and it was really

6 important in discrediting the Communist party's

7 brutality. It was a show trial.

8 MR. FERRARA: I don't know what's bad

9 about it and that's why I am here because --

10 JUSTICE KOZINSKI: Well, I think the idea

11 is, isn't it, that -- and I think what they

12 would say, what plaintiffs would say is that

13 show trial is just a euphemism. What he is

14 really saying, "Go out and get these people."

15 MR. FERRARA: Well --

16 JUSTICE KOZINSKI: I mean, you know, I

17 don't mean to put words in their mouths, but I

18 think that's what they're saying, "Look, just

19 like the posters, this is encouraging people to

20 commit violence, not inciting, encouraging," and

21 most important causing the people who are on the

22 list to modify their behavior because they feel

23 afraid.

24 MR. FERRARA: Well, publicity might make

25 someone modify his behavior, but the list

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1 itself, Your Honor, makes it quite clear, it

2 says this repeatedly, "If we have any show

3 trials," I am quoting this almost verbatim, "the

4 guilt of these people is for the Courts, not for

5 us to decide."

6 I read that to Dr. Hern on

7 cross-examination, and he admitted that he

8 hasn't even read the web site before trial. I

9 believe I am running out of time. I'd like to

10 save a minute, if I could, for rebuttal. I'm

11 down to 11 seconds.

12 JUSTICE KOZINSKI: Actually, it's

13 negative 14 seconds, but it's --

14 MR. FERRARA: I guess I have nothing left

15 unless, Your Honor --

16 JUSTICE KOZINSKI: We'll give you some

17 rebuttal time.

18 MR. FERRARA: Okay. Thank you very much,

19 Your Honor.

20 MS. VULLO: May it please the Court, my

21 name is Maria Vullo, and I represent the four

22 individual physicians and the two health clinics

23 who brought this action and who seek deferments

24 of the judgment and the injunction.

25 Judge Kozinski, I think you highlighted

22

1 the key factual predicates of why these posters

2 and the web site are threats. And that is that

3 in the context in which there was a poster and a

4 murder of a physician, a poster and a murder of

5 a physician, and another poster and a murder of

6 a physician, and these defendants, after each of

7 those murders, applauded publicly those murders,

8 signed documents and publicly stated that those

9 murderers should be acquitted.

10 They were kicked out of Operation Rescue

11 because of their position that it is justifiable

12 to kill abortion providers. They formed this

13 new organization, the American Coalition of Life

14 Activists, and when they formed that

15 organization which refused to condemn the

16 violence, they came out capitalizing on the

17 fear --

18 JUSTICE KOZINSKI: It's okay, though, to

19 say people ought to be acquitted of crimes.

20 MS. VULLO: That in and of itself, Judge,

21 yes.

22 JUSTICE KOZINSKI: I want to ask you a

23 question. And it's even okay to say that as a

24 philosophical matter it is okay to commit

25 violence against people who perform certain

23

1 acts.

2 MS. VULLO: Your Honor, as a

3 philosophical matter each of those individual

4 statements might be okay, but as this Court said

5 in the Gilbert case, "You cannot parse out one

6 line here, one line there" --

7 JUSTICE KOZINSKI: I know.

8 MS. VULLO: -- (inaudible) or the

9 context.

10 JUSTICE KOZINSKI: I understand. I am

11 not -- I am not really trying to do that. But

12 those things standing alone are okay. It's okay

13 even somebody's been convicted of murder to

14 agitate for their releasing from prison.

15 MS. VULLO: Ah, yes, Your Honor.

16 JUSTICE KOZINSKI: I mean, people do that

17 all the time. It's okay to make a hero of

18 people who have committed crimes. People do

19 that all the time so.

20 MS. VULLO: Yes, Judge Kozinski, but

21 when --

22 JUSTICE KOZINSKI: Now --

23 MS. VULLO: I'm sorry.

24 JUSTICE KOZINSKI: Let me ask you the

25 question that I asked of other counsel because

24

1 in my mind at least it makes some difference.

2 It -- does a threat have to be, under the

3 theory of this case, does it have to be

4 something that the speaker -- violence the

5 speaker initiates or is it enough that you

6 provide information which will endanger the

7 subject or the object of the speech and third

8 parties, only the third parties?

9 MS. VULLO: Your Honor, the reason that

10 threats are unprotected by the con' --

11 unprotected speech, is because of the fear that

12 the statement engenders, the intimidation and

13 the fear that it engenders.

14 JUSTICE KOZINSKI: But there are two

15 kinds of fear, and let me just get this question

16 out. You've got two ways in which I might

17 threaten you, okay?

18 MS. VULLO: Uh-huh.

19 JUSTICE KOZINSKI: I might threaten you

20 by saying, "I'm going to pull out a gun and

21 shoot you." You know I have a specific plan of

22 action and assuming you think I might have a

23 gun -- whatever, you might feel in fear.

24 MS. VULLO: Uh-huh.

25 JUSTICE KOZINSKI: The other way is by

25

1 saying things about you which I know third

2 parties that I have no connection with will

3 likely take action. For example, I recognize

4 that you are in the Witness Protection Program.

5 I just happen to recognize that you were the

6 witness that the Mob is after and you are

7 hiding.

8 And so what I do is I publish, I handbill

9 your neighborhood, and let people know, "She is

10 not who she pretends to be. She is the

11 notorious witness who put away the crime boss."

12 And I don't have to do anything, I don't incite

13 anybody, I don't call anybody, but I know you

14 are going to be afraid at that point.

15 So does that threat have to be something

16 that comes from me or is it enough that I say

17 things which would make you apprehensive from

18 unrelated third parties?

19 MS. VULLO: The latter, Your Honor,

20 because it is the fear that and the intimidation

21 that threat produces that is unprotected speech.

22 JUSTICE KLEINFELD: Counsel, help me on

23 that is that --

24 JUSTICE KOZINSKI: Is that right?

25 JUSTICE KLEINFELD: I have a concern

26

1 about that because the Supreme Court has told us

2 repeatedly to read the -- read the words of the

3 statute, read the words of the decision against

4 the common law background that gives meaning to

5 those words.

6 To understand what a threat was, I looked

7 at the instruction here where the judge said

8 just what you say he should say. The judge

9 said, "Even if you believe that the defendants

10 did not" -- he went further than what you say

11 actually.

12 "Even if you believe that the defendants

13 did not intend the statement to be threatening,

14 that is that the defendants did not intend to

15 put anyone in fear by those statements, you must

16 still find those statements to be threats if you

17 conclude that a reasonable person would have

18 foreseen that those statements and their higher

19 practical context would have been interpreted as

20 statements of an intent to do bodily harm or

21 assault."

22 So what you're defending, what you have

23 to defend is the proposition that even if the

24 speaker intends not only not to harm somebody,

25 but not to put somebody in fear of harm,

27

1 nevertheless, if he could reasonably anticipate

2 that a person would fear harm then that's a

3 threat.

4 Now, I looked up what the common law

5 background was on that, and I looked in the

6 Restatement on assault because it takes up

7 precisely this issue. And the Restatement says

8 that, "The actor has to intend to cause imminent

9 apprehension of harmful or offensive conduct."

10 And then it has a specific provision

11 that, "An action which is not done with the

12 intention to cause eminent apprehension of such

13 conduct does not make the actor liable to the

14 other for an apprehension caused thereby,

15 although the act involves an unreasonable risk

16 of causing such apprehension, and, therefore,

17 would be negligent or reckless."

18 So what the Restatement has said is the

19 precise opposite of what the judge said. And

20 then in the official comment, Comment F, the

21 Restatement says, "It's necessary that the actor

22 has to act with the intent to put the person in

23 apprehension."

24 Now, on Judge Kozinski's hypothetical, I

25 can very well imagine an actor just listing the

28

1 names, and not saying a thing about what is to

2 be done to them, intending to put the people in

3 apprehension or fear.

4 For example, if I tap -- if I tell some

5 Mafia boss that somebody is in the Witness

6 Protection Program, maybe I am intending that

7 the Mafia boss rub them out. But if a reporter

8 puts in his newspaper that the person's in the

9 Witness Protection Program, and all the reporter

10 wants to do is win a Pulitzer Prize, he doesn't

11 need to put the person in fear, he doesn't care

12 about the person one way or the other, he just

13 cares about himself, then he's not liable the

14 way the Restatement puts it.

15 Why is it your case subject to

16 interpretation against this common law

17 background which would make the jury instruction

18 that you got mistaken?

19 MS. VULLO: Judge Kleinfeld, seeing that

20 there are two issues there, one is the question,

21 as I understood it, that Judge Kozinski raised

22 which is, does the statement have to indicate

23 that the speaker himself is actually going to

24 commit the violence?

25 JUSTICE KLEINFELD: You understand, I

29

1 focused this differently.

2 MS. VULLO: Yes, yes.

3 JUSTICE KLEINFELD: I laid it out so that

4 the speaker might intend the person not to think

5 that the speaker intends violence; nevertheless,

6 the speaker intends that the person be in fear

7 or the speaker does not intend that the person

8 be in fear. In a common law background, if the

9 speaker doesn't intend that the person be in

10 fear, then it's no threat.

11 MR. FERRARA: Yes, Judge. And that goes

12 to the District Court's instruction in this

13 case. The District Court's instruction in this

14 case followed settled Ninth Circuit law as well

15 as the law in other circuits which -- as far as

16 the true threats element of the instruction, put

17 it in the -- in the minds of a reasonable

18 speaker in the facts and circumstances, and that

19 is law --

20 JUSTICE KLEINFELD: What --

21 MS. VULLO: -- that is throughout on --

22 JUSTICE KLEINFELD: What case are you

23 talking about? I didn't see a case that was

24 really analogous for these particular sentences

25 that I quoted.

30

1 MS. VULLO: Your Honor, the law in this

2 circuit under the Lovell case, the 1990 Lovell

3 case, enunciates the reasonable speaker standard

4 for finding whether or not statements are a true

5 threat or protected speech, and that was the

6 case of the student and the guidance counselor.

7 The Gilbert case talks about willfully --

8 but in this case, Judge, there are more than one

9 element of the judge's instructions.

10 JUSTICE KLEINFELD: I don't think those

11 cases raised the question, did they, of whether

12 the speaker's intent -- of whether the speaker

13 can be liable for threat even though the speaker

14 does not intend the statements to be

15 threatening.

16 MS. VULLO: Ah, in those cases, Judge,

17 and there's a case in the Third Circuit called

18 Kosma where the Third Circuit specifically

19 addressed that question and said that, "A

20 speaker, if he acts unreasonably in terms of the

21 reasonable speaker standard, can be held

22 liable."

23 But in this case, we had an instruction

24 under the FACE statute, under which each of

25 these defendants was held liable that not only

31

1 did a true threat have to be found by the jury,

2 but also the jury had to find that the purpose,

3 the intention of the defendants was either to

4 intimidate or interfere with the provision of

5 reproductive health services.

6 JUSTICE KLEINFELD: No, that's not true.

7 The sentence says, "Even if the defendant did

8 not intend the statement to be threatening, you

9 still have to find the statements to be

10 threats" --

11 MS. VULLO: Judge Kleinfeld --

12 JUSTICE KLEINFELD: -- "if a reasonable

13 person -- if a reasonable person would have

14 foreseen that the hearer would feel threatened."

15 MS. VULLO: Under the truth threats

16 instruction, Judge Kleinfeld --

17 JUSTICE KLEINFELD: And that's not in

18 FACE.

19 MS. VULLO: That is correct.

20 JUSTICE KLEINFELD: That's not in the

21 statutes.

22 MS. VULLO: But the instructions -- the

23 instructions go further, and I respectfully

24 refer you to supplemental excerpts of record,

25 Page 647, which goes, "The true threats

32

1 instruction was given by the Court because the

2 jury had to determine, first, whether this could

3 be constitutionally-protected speech. And if

4 the jury found it was not a true threat, the

5 jury did not proceed beyond that."

6 When the jury did in this case find a

7 true threat, the jury proceeded beyond that, and

8 proceeded to determine under each of the federal

9 statutes, whether the elements of those statutes

10 were met. And for the FACE claim on Page 647 --

11 JUSTICE KLEINFELD: I see, but that still

12 leaves the RICO claim. You're talking about

13 instruction on claim 1 FACE violation.

14 MS. VULLO: Yes, Your Honor.

15 JUSTICE KLEINFELD: Page 18.

16 MS. VULLO: And each defendant was found

17 liable under FACE, and there are three elements

18 that the jury had to consider on Page 648 of our

19 supplemental --

20 JUSTICE KLEINFELD: But you have to

21 defend all of the theories of liability, not

22 just the FACE liability.

23 MS. VULLO: Each of the defendants was

24 found liable under FACE for a FACE violation,

25 the jury had to conclude on Page 648, first,

33

1 that there was a true threat under the

2 instruction that Your Honor has been focusing

3 on; second, that the plaintiff was involved in

4 providing reproductive health services; and,

5 third, that the defendant made the threat of

6 force to intimidate or interfere with.

7 JUSTICE KLEINFELD: You've got a good

8 argument there. Do you have the same language

9 or similar language that protects your case on

10 the RICO liability.

11 MS. VULLO: On the RICO liability, the

12 jury did have to find the threat, the true

13 threat, and we maintained that was the correct

14 standard and was sufficient. They also had to

15 find intention to deprive of property, and that

16 was a specific intent to deprive the plaintiffs

17 of their property.

18 In this case, the property was the

19 out-of-pocket expenditures for security

20 expenses, and the RICO was the Hobbs Act

21 extortion. So under both claims the jury found

22 intention under what I think Your Honor is

23 focusing on.

24 JUSTICE KLEINFELD: The problem with your

25 defense of the definition of threat instruction

34

1 where the speaker doesn't have to intend

2 threatening is it applies so broadly.

3 For example, that APB case said -- no one

4 litigated it. The judges just decided not to

5 oppose it, but the web site they put up all the

6 judges' financial statements. There are always

7 people -- we've had several assassinations of

8 federal judges in the last few years. That

9 information undoubtedly put some in fear.

10 Likewise, as we were in the run up to the

11 Gulf War, you remember Pat Buchanan made his

12 amen corner remark in opposition to the Gulf War

13 suggesting that only Jews were opposing the Gulf

14 War or favoring the Gulf War, and it was a

15 Jewish war? And that was Pat Buchanan's

16 argument.

17 It was an argument he was entitled to

18 make. It was protected under the First

19 Amendment. But there were attacks on synagogues

20 during that period in the run up to the Gulf

21 War, and they may have been influenced by Pat

22 Buchanan's remarks, I don't know.

23 MS. VULLO: Judge Kleinfeld --

24 JUSTICE KLEINFELD: But he had a right to

25 make them.

35

1 MS. VULLO: I would respectfully submit

2 that if -- if there was information put out on

3 federal judges, and after that information was

4 put out, a judge was assassinated, and then the

5 same information about a second judge was put

6 out and that judge was killed, and that the

7 defendant in the later case publicly supported

8 that, and said, "I think it's okay to kill

9 judges, particularly those who give decisions in

10 a certain area."

11 JUSTICE KLEINFELD: That public support,

12 you know, it's immoral, but there is no question

13 the Supreme Court has repeatedly said it's

14 protected. That's why H. Rap Brown could say,

15 "Violence is as American as cherry pie," in an

16 earlier protest movement.

17 JUSTICE KOZINSKI: Could you give me a

18 case, getting back to the answer you gave me,

19 you gave me my answer but you never gave me a

20 case for the proposition that it's a threat if I

21 say things to you, knowing full well I'm not

22 going to do anything, or cause anybody else to

23 do it, but which will result in causing you to

24 be afraid of other people. The Mafia case.

25 MS. VULLO: Yes.

36

1 JUSTICE KOZINSKI: The Mafia case. You

2 are in the Witness Protection Program, I

3 recognize you. I don't invade your privacy --

4 it's not one of those things where I --

5 MS. VULLO: Uh-huh.

6 JUSTICE KOZINSKI: -- commit any invasion

7 of privacy. I just happen to know who you are.

8 I don't communicate it to you directly, but I

9 make it public. I give an interview to the

10 press saying, "This person living at this

11 address under the -- this following name is, in

12 fact, the following person."

13 Now, what case supports the proposition

14 of that threat for First Amendment purposes, it

15 overcomes the First Amendment right to speak?

16 MS. VULLO: Judge Kozinski, three

17 categories of cases come to mind. The first is

18 the Supreme Court's decision --

19 JUSTICE KOZINSKI: When you can't come up

20 with one, it's usually --

21 MS. VULLO: Well, it's a combination.

22 JUSTICE KOZINSKI: All right.

23 MS. VULLO: The Supreme Court --

24 JUSTICE KOZINSKI: Let's --

25 MS. VULLO: The Supreme Court's decision

37

1 in the RAV case, which was an ordinance case,

2 the Supreme Court made it clear that it's the

3 fear that the threat creates that's the

4 constitutionally-unprotected statement.

5 The second is the Merrill case and the

6 Gordon case in this circuit where the defendants

7 were in jail when they wrote the communications.

8 And this circuit and every other circuit to have

9 addressed this question has said that the

10 defendant himself doesn't have to actually have

11 the ability or even the intention to carry it

12 out.

13 JUSTICE KOZINSKI: I'm sorry, I don't

14 remember the case. What happened there?

15 MS. VULLO: Ah, in the Gordon case in

16 particular, there was a -- the defendant was in

17 jail when the communications were -- were sent,

18 and the Court found that the fact that he was --

19 it was a threat against the president -- the

20 fact that he was in jail did not prevent the

21 imposition of threat liability because the

22 threat is the fear itself and the intimidation.

23 Now, the Court admittedly did not say in

24 that case, "Well, because there would be fear of

25 someone else doing it," but it certainly stands

38

1 for the proposition that the threat itself does

2 not have to be the speaker stating that the

3 speaker is going to carry it out. And this

4 Court --

5 JUSTICE KOZINSKI: Well, why not? I

6 don't understand. I mean, what did the guy say

7 that -- you think people didn't know who the

8 president was? I mean, what information did he

9 provide that made it more likely for somebody

10 else to -- to -- to carry out this threat

11 against the president?

12 MS. VULLO: It wasn't that he was

13 providing information for someone else. It was

14 that he was making a threat that is

15 constitutionally-unprotected speech because of

16 the fear and the intimidation and the protection

17 that society needs to have for persons who are

18 threatened.

19 JUSTICE KOZINSKI: But that was a case

20 where they said the threat, the danger might

21 come from third parties?

22 MS. VULLO: No, no.

23 JUSTICE KOZINSKI: Okay. It doesn't

24 really answer the question, does it?

25 MS. VULLO: Well --

39

1 JUSTICE KOZINSKI: I mean, we have a

2 statute that says, "You can't threaten the

3 president," and, you know, the -- the statement

4 clearly was a threat against the president. It

5 didn't make it more like that anybody else could

6 figure out or, "I now know who the president is

7 and where he lives," right?

8 I mean, so what case really stands for

9 the proposition that when I say something that

10 makes you fearful, not because of anything I do

11 or anything I cause to be done but just simply

12 my saying it makes you apprehensive about the

13 threat that overcomes my First Amendment right

14 to speak? I --

15 MS. VULLO: Judge Kozinski, I don't --

16 JUSTICE KOZINSKI: I mean, remember

17 Claiborne Hardware? I mean, your big hurdle in

18 this case is Claiborne Hardware where the

19 statement was, "Necks will be broken."

20 MS. VULLO: Yeah, let me -- I'd like to

21 address Claiborne Hardware.

22 JUSTICE KOZINSKI: Yes.

23 MS. VULLO: Because in Claiborne

24 Hardware, the question there was whether or not

25 the NAACP could be held liable for the actions

40

1 of its members. And it would violate freedom of

2 association to make the NAACP liable; but there

3 is no question that the persons who themselves

4 committed threats or committed violent action

5 would be held liable.

6 JUSTICE KOZINSKI: No --

7 MS. VULLO: That's what we're seeing in

8 this case.

9 JUSTICE KOZINSKI: No doubt about it, but

10 my question happens when third parties do it.

11 And NAACP, they were people in the same

12 organization. At least they had that

13 connection, and the Supreme Court said, "No way,

14 no way." Much less, it seems to me, if you've

15 got unrelated third parties who are not even

16 part of the same organization.

17 Why doesn't Claiborne Hardware speak to

18 this issue directly? You can be as -- make

19 people as apprehensive as possible. If you

20 don't -- if the thing you're saying does not

21 mean that you are going to initiate violence,

22 First Amendment protects it. Isn't that what

23 Claiborne Hardware says?

24 MS. VULLO: Yes, Judge, but Claiborne

25 Hardware is not this case. Here we have direct

41

1 threats against --

2 JUSTICE KOZINSKI: Necks will be broken?

3 MS. VULLO: -- specifically

4 individuals --

5 JUSTICE KLEINFELD: I don't see the

6 direct threats.

7 MS. VULLO: -- with the defendants

8 identifying themselves.

9 JUSTICE KOZINSKI: Where is the direct

10 threat here?

11 MS. VULLO: Judge, if I made a phone call

12 to one of the plaintiffs in this case and I

13 said, "I know where you live."

14 JUSTICE KOZINSKI: You know, but there

15 were no phone calls directly to anybody. We are

16 in the area of public statements. The cases

17 were people speak face-to-face or send

18 communications or make telephone calls or send

19 letters are really in a different category.

20 This is a Claiborne Hardware kind of

21 case. This is speech in a public form directed

22 to the public. True, it would be heard by all

23 sorts of people, some of them kooks, some of

24 them may be crazy, some of them may be

25 extremists, some of them may be violently

42

1 inclined, some of them perhaps criminal, but

2 that's what -- that's what the First Amendment

3 is about, that sometimes people hear things and

4 act on this them improperly.

5 MS. VULLO: This is not an incitement

6 case, and it's not a case where we are arguing

7 that it's the incitement to that violence that

8 is the problem. What is the problem is the

9 specific identification of specific individuals,

10 the plaintiffs in this case, by specific named

11 defendants, not in a public demonstration --

12 JUSTICE KOZINSKI: So what? So they

13 identify. Unless -- I mean, you could say this

14 is a -- let's say you obtain information by

15 invasion of privacy, then you've got this sort

16 of invasion of privacy case.

17 MS. VULLO: Uh-huh.

18 JUSTICE KOZINSKI: But so what? So

19 you've identified this person and say, "This is

20 really a bad person. In a perfect world, this

21 person would be put in jail."

22 Let me ask you a different question.

23 MS. VULLO: Uh-huh.

24 JUSTICE KOZINSKI: Let's say, remember

25 the guilty poster, guilty --

43

1 MS. VULLO: Yes.

2 JUSTICE KOZINSKI: Let's say they have

3 gone to the New York Times and bought a

4 full-page ad for this, and had it run in the New

5 York Times.

6 MS. VULLO: Uh-huh.

7 JUSTICE KOZINSKI: Would the New York

8 Times be sitting there today?

9 MS. VULLO: No.

10 JUSTICE KOZINSKI: Why not?

11 MS. VULLO: No. Two reasons, the

12 first --

13 JUSTICE KOZINSKI: You wouldn't take on

14 the New York Times?

15 MS. VULLO: Oh, I'm sure my partner's

16 done that before, but two reasons. The first

17 reason, Judge Kozinski, is that the New York

18 Times did not make the statement, the defendants

19 did, and they are liable for the statement that

20 they made.

21 JUSTICE KOZINSKI: Well, but --

22 MS. VULLO: The second reason is that --

23 JUSTICE KOZINSKI: Wait, wait, wait,

24 wait, wait, wait, wait, but that's too easy.

25 Let's say that state law, in fact, says if you

44

1 are the carrier for a message like this, and

2 state law is weird. Remember the New York Times

3 versus Sullivan, remember what happened there?

4 MS. VULLO: Uh-huh.

5 JUSTICE KOZINSKI: And New York Times

6 didn't make the statement and still a state jury

7 found them liable.

8 MS. VULLO: Uh-huh.

9 JUSTICE KOZINSKI: So let's tweak the law

10 just a little bit. Let's tweak the substantive

11 law just a little bit. Maybe they couldn't be

12 found guilty under the statute, but let's say

13 there was also a state count and they have been

14 found liable. First Amendment would allow that?

15 MS. VULLO: If a jury found that the New

16 York Times intended to intimidate the plaintiffs

17 by making that statement, yes, but I don't think

18 that finding would occur, so I don't think we

19 would have that case. In this case, a jury and

20 the District Judge both found --

21 JUSTICE KOZINSKI: I'm sorry, so if a

22 jury found that by doing this the New York Times

23 intended to intimidate, they would be held

24 liable, New York Times versus Sullivan be

25 damned?

45

1 MS. VULLO: Well, the New York Times --

2 JUSTICE KOZINSKI: I'm asking, you

3 know --

4 MS. VULLO: If, if, if, if, if any

5 individual, whether the New York Times or anyone

6 else does something in order to intimidate

7 someone and the intimidation --

8 JUSTICE KLEINFELD: Counsel --

9 MS. VULLO: -- we're talking about is the

10 fear of physical harm.

11 JUSTICE KLEINFELD: Counsel, how can you

12 say -- how can you say that the jury found that

13 the defendants did something intending to

14 intimidate or cause fear when you succeeded in

15 obtaining a jury instruction that told the jury

16 that they could hold the defendants liable even

17 if they did not intend to cause fear?

18 MS. VULLO: Because the jury found each

19 defendant liable under the FACE statute which

20 has three elements, the first --

21 JUSTICE KLEINFELD: But they also found

22 them liable under the RICO which --

23 MS. VULLO: That's correct.

24 JUSTICE KLEINFELD: -- doesn't have that

25 same language.

46

1 MS. VULLO: That's correct. And the RICO

2 verdict is the much lesser amount of the

3 verdict, but they did find under RICO was a

4 different element, but it was intention to

5 deprive of property.

6 JUSTICE KLEINFELD: See, you got a jury

7 instruction that told the jury they could find

8 the defendants liable despite the First

9 Amendment in the exact opposite circumstance

10 from what you just told Judge Kozinski the jury

11 found.

12 You told Judge Kozinski that it didn't

13 really matter if they intended to harm

14 themselves or if they just expected a third

15 person would do the dirty work, so long as they

16 intended to put people in fear which they did,

17 but you've got a jury instruction that expressly

18 said, even if you believe the defendants did not

19 intent the statements to be threatening still

20 the defendants could be found liable. So it

21 seems to me that you can't make inconsistent

22 arguments about that critical point.

23 MS. VULLO: With all due respect, I don't

24 believe it's inconsistent arguments. The

25 jury -- if the New York Times or whatever other

47

1 newspaper published the statement that was made

2 in the Roy case, which is a threat against the

3 president case --

4 JUSTICE KLEINFELD: Suppose the New York

5 Times --

6 MS. VULLO: And they --

7 JUSTICE KLEINFELD: Many, many, many

8 statutes and common law theories of liability

9 attach liability to the publisher of statements

10 as opposed to the original author of statements.

11 Suppose the New York Times had an

12 editorial less favorable to your cause than they

13 do, and they said, "We heartily disapprove of

14 abortion. We think abortion is murder and here

15 are the names of the doctors in the five Burrows

16 of New York who perform abortions."

17 MS. VULLO: If that -- if a reasonable

18 person in that -- in the position of that

19 speaker would understand that the recipients are

20 going to take that as a threat to kill them,

21 then there could be liability. In this case, we

22 have more than that. We've got a specific --

23 JUSTICE KLEINFELD: The New York Times

24 would have to anticipate that people who read

25 their names on that list would be scared because

48

1 it knows that a lot of people aren't as

2 restrained as the editorial board of the New

3 York Times.

4 MS. VULLO: In this case, and under the

5 FACE statute, you need a requirement of

6 intimidation or interference. That's what the

7 third element of -- the truth rest instruction

8 is the first one which follows the Roy case and

9 the Gilbert case.

10 JUSTICE KLEINFELD: Lots of people are

11 scared about having their name in the New York

12 Times presented in an adverse light. I imagine

13 it would prevent many doctors from getting into

14 performing abortions, so that's -- that would be

15 enough.

16 MS. VULLO: In this case, as I mentioned

17 before, there is a long history of a poster and

18 a murder, a poster and a murder, a poster and a

19 murder, and these particular defendants -- we're

20 not talking about the New York Times. We're

21 talking about defendants who have publicly

22 stated that those murders were okay.

23 They were kicked out of their

24 organization because of that view. They formed

25 this organization and came up and capitalized on

49

1 that history in --

2 JUSTICE KOZINSKI: Were they --

3 MS. VULLO: -- these target

4 identifications.

5 JUSTICE KOZINSKI: Were they -- were the

6 posters, earlier posters and murders, connected

7 to these defendants?

8 MS. VULLO: Ah, these defendants did not

9 create those specific posters, but the judge

10 found in his injunction and there is evidence

11 that we submitted that the -- (tape change) --

12 created these posters. And Paul Hill who was

13 the person who killed Dr. Brittan, prepared the

14 Dr. Brittan poster.

15 JUSTICE KLEINFELD: Were the posters the

16 same content? These say, "Guilty of crimes

17 against humanity." And then it says, "The Nazis

18 did abortions on Jews." And then it says,

19 "$5,000 reward for information leading to

20 arrest, conviction and revocation of license to

21 practice medicine." It doesn't say to kill

22 anyone.

23 And then this one, the next one, says

24 that this fellow is an abortionist, and it lists

25 various medical malpractice cases against him

50

1 for a perforated uterus, another perforated

2 uterus, a massive infection, a couple deaths, I

3 think it was, for hemorrhages, and they don't

4 advocate killing anyone. Are those the same

5 kind of posters?

6 MS. VULLO: Ah, I would refer Your Honor

7 to the Gilbert case and to the Khorrami case.

8 JUSTICE KOZINSKI: I want to hear your

9 answer to Judge Kleinfeld's question, though,

10 before we go to the cases.

11 MS. VULLO: Would --

12 JUSTICE KOZINSKI: He asked you a

13 question about the earlier posters.

14 MS. VULLO: The earlier posters don't

15 have that exact specific language, but each one

16 of them has -- the crimes against humanity has

17 the name. The photograph of the physician has

18 their addresses and some other information.

19 It's not exact, but it has -- it is the same

20 message as these posters with that prior pattern

21 and they --

22 JUSTICE KLEINFELD: They have a name and

23 a picture of the person and they say, "He's a

24 bad person," or do they say to kill him?

25 MS. VULLO: Ah, it's very similar to

51

1 these and the message I would respectfully

2 submit is, "If you don't stop performing

3 abortions, you are going to be killed because I

4 know where you live" --

5 JUSTICE KLEINFELD: These --

6 MS. VULLO: "I know where you work" --

7 JUSTICE KLEINFELD: These don't say to

8 kill anyone.

9 MS. VULLO: "And I think it's okay to

10 kill you."

11 JUSTICE KLEINFELD: These don't say to

12 kill anyone. You're saying those posters did?

13 MS. VULLO: The explicit -- those posters

14 were very similar to these posters. And the

15 fact that there is not an explicit statement

16 that, "I will kill you," that's why I

17 respectfully refer Your Honor to the Gilbert

18 case where the Ninth Circuit --

19 JUSTICE KLEINFELD: Hold on.

20 MS. VULLO: -- specifically said --

21 JUSTICE KLEINFELD: Focus on my concern a

22 little bit. I'm worried about things where a

23 newspaper or ABC TV puts somebody's name and

24 picture on the screen and portrays them as a

25 very bad person. My guess is that we'll see a

52

1 run of those with these Firestone tire cases,

2 and there are undoubtedly going to be people who

3 are very unhappy about some tragedy in their

4 family that relates to the tires. Newspapers do

5 that all the time.

6 MS. VULLO: Uh-huh.

7 JUSTICE KLEINFELD: They put somebody --

8 and they often put where the person lives or

9 enough information to find them. And it seems

10 to me that you have not provided a stopping

11 point for your theory that would -- and that

12 your theory would make the New York Times liable

13 in all those sorts of cases where they put the

14 name and enough information to find him and a

15 description of a person as a bad person.

16 MS. VULLO: Ah, Your Honor, in each of

17 the threats cases before in this circuit, the

18 same standard has been applied, and the

19 newspapers haven't -- in the Kelner case in the

20 second --

21 THE COURT: Well, Gilbert was a case, you

22 wanted to talk about Gilbert in response to

23 Judge Kleinfeld where communication was directly

24 to the victim.

25 MS. VULLO: It was sent in the mail. It

53

1 was sent in the mail.

2 JUSTICE KOZINSKI: I mean --

3 MS. VULLO: The posters in the

4 Gilbert case were sent in the --

5 JUSTICE KOZINSKI: -- the poster is

6 neither here nor there. It was actually sent

7 directly. Something is much more likely to be a

8 threat if communicated from one person to

9 another than if made in a newspaper or made in a

10 rally.

11 MS. VULLO: Uh-huh.

12 JUSTICE KOZINSKI: For one thing a

13 communication from one person to another in the

14 mail doesn't have the same First Amendment

15 implications. You can speak at a rally and

16 really this is political speech in some sense.

17 It's not political speech when I send you a

18 letter --

19 MS. VULLO: In Gilbert --

20 JUSTICE KOZINSKI: It is sort of private

21 communication. Isn't that what Gilbert turned

22 on?

23 MS. VULLO: I would say not, Judge.

24 Gilbert turned -- Gilbert raised a First

25 Amendment defense because he argued that

54

1 miscegenation, what -- his views on that were

2 political hyperbole. Same thing with the

3 Khorrami case, which I think is very instructive

4 in the Seventh Circuit where there were posters

5 that said, "Crimes against humanity," just like

6 the poster in this case, just like the prior

7 posters of the doctors that Judge Kleinfeld was

8 talking about.

9 And in each of those cases, the Court

10 supplied the objective standard and said that

11 the fact that it may not be explicit, the words

12 "I will kill you," doesn't make it any less of a

13 threat. In terms of it being direct versus in

14 some other public forum, the Kelner case is

15 instructive because the threat against Arafat

16 was conveyed over the television.

17 JUSTICE KLEINFELD: Well, wait, that's a

18 real --

19 MS. VULLO: And the Second Circuit --

20 JUSTICE KLEINFELD: That's something

21 where this fellow sat there in front of the TV

22 camera and he said, "We're going to kill him.

23 We have plans to kill him. We're going to kill

24 him. We've arranged it. We're going to kill

25 him." Khorrami --

55

1 JUSTICE KOZINSKI: And the Second Circuit

2 made a big point about the fact that the threat

3 was immediate and specific. They use -- they

4 use those words. They weren't talking about

5 something theoretical. They were talking about

6 an immediate and specific threat. Arafat was

7 about to land in New York.

8 MS. VULLO: In the Malik case --

9 JUSTICE KLEINFELD: In Khorrami, it was

10 the same thing. They said, "We're going to kill

11 him."

12 MS. VULLO: In the Khorrami case,

13 Judge Kleinfeld, they had posters with, "Crimes

14 against humanity," on it. And the Court

15 specifically said in that case that the fact

16 that it might not be explicit doesn't make it

17 any less of a threat.

18 In Dinwiddie, that same comment is made

19 by the Eighth Circuit. But as for the Kelner,

20 Judge Kozinski, the Kelner decision and that

21 language, if you look at the Malik decision

22 which is on the Second Circuit I think in 1997,

23 in that decision the Second Circuit expressly

24 said that the question is for a jury and it can

25 be subtle, it can be conditional and the key

56

1 question is could a reasonable fact finder

2 determine under all of the facts and

3 circumstances whether or not in was a threat.

4 And yes, the threat would be immediate

5 and it would be specific, as this is. This was

6 an immediate threat. Protected speech does not

7 require doctors to buy bullet-proof vests.

8 That's what happened in this case. This speech,

9 yes, it is speech, but it's unprotected --

10 JUSTICE KOZINSKI: How --

11 MS. VULLO: -- and it requires then --

12 JUSTICE KOZINSKI: How again do you

13 reconcile Claiborne Hardware where there were

14 people taking down names who patronize the

15 store, people in black hats, right, and then

16 there were several rallies where the statement

17 was, "We'll break their necks."

18 And the Supreme Court said, "Well, big

19 deal, you know, political speech," or the case

20 of the guy who said he'd shoot the president if

21 he ever gets drafted. Watts, was it?

22 MS. VULLO: That's the Watts case, the

23 Supreme Court case in Watts.

24 JUSTICE KOZINSKI: And he says, "Look,

25 when you are engaging in political speech,

57

1 things sometimes get heated and people use

2 phrases that are hyperbolic." Here we don't

3 even have hyperbole. They are very careful in

4 what they say.

5 MS. VULLO: Well --

6 JUSTICE KOZINSKI: You know, they

7 probably lawyers, they probably have legal

8 advice.

9 MS. VULLO: And I would submit, Your

10 Honor, that the clever threatener should not get

11 away with the threat because he carefully

12 chooses language that don't include the exact

13 words, "I will kill you" --

14 JUSTICE KOZINSKI: But if --

15 MS. VULLO: -- but it's that same

16 message.

17 JUSTICE KOZINSKI: -- the non-clever

18 threatener gets away with it, surely the clever

19 one ought to. If the guy who stands up at the

20 rally and says, "We're going to break their

21 necks. We know who they are. The sheriff can't

22 sleep with them at night. We're going to get

23 them and we're going to break their necks." If

24 he gets away with it, why shouldn't the people

25 who are saying the same thing in a more clever

58

1 way get away with it?

2 MS. VULLO: Claiborne Hardware, two

3 comments on the Claiborne Hardware.

4 JUSTICE KOZINSKI: It's a tough case for

5 you. It's a tough case for you.

6 MS. VULLO: Yes and no, because I think

7 Claiborne Hardware, it's been raised, and it's

8 been raised by you Judge Kozinski as well, but I

9 think it's a very different case because there

10 there's not --

11 JUSTICE KOZINSKI: In McCaulden --

12 McCaulden doesn't help you any because McCaulden

13 says there's a big difference between private

14 and public speech in Judge Norris' opinion.

15 MS. VULLO: And Judge Kozinski, your

16 dissent from the denial of the rehearing en banc

17 in that case is very instructive on the

18 Claiborne Hardware point, and that point is that

19 in that case, we have -- we had a debate by two

20 sides.

21 One side not -- no one would ever think

22 that the American Jewish committee was going to

23 pull a gun. And that's what I understood to be

24 the focus of your dissent and Judge Reinhart's

25 dissent from the rehearing. That is a very

59

1 different situation.

2 JUSTICE KOZINSKI: But -- but -- but --

3 but McCordon made a difference. The majority

4 opinion in McCordon says if you're talking about

5 private communications, that's very different

6 from public statements. That's the majority

7 opinion. That is what Judge Norris went off on.

8 MS. VULLO: Yes.

9 JUSTICE KOZINSKI: And so that's --

10 again, I didn't buy it, but I was in the

11 dissent --

12 MS. VULLO: Yes.

13 JUSTICE KOZINSKI: -- and didn't get very

14 many (inaudible) of that, so the Ninth Circuit

15 law is that there is a difference. That we

16 treat, for purposes of Claiborne Hardware,

17 public statements different from private

18 statements.

19 MS. VULLO: Yes. And in McCordon, the

20 majority opinion did I think in a footnote

21 indicate the difference between private and

22 public. And when you have a private,

23 perceptible target, someone is identified, which

24 is not the Claiborne Hardware situation.

25 Claiborne Hardware is a large rally

60

1 similar to I think, Judge Kozinski, your opinion

2 in the Roulette case --

3 JUSTICE KLEINFELD: I thought this case,

4 one of the posters --

5 MS. VULLO: -- where you talk about

6 public demonstrations being a significant

7 factor.

8 JUSTICE KLEINFELD: I thought in this

9 case, one of the posters was displayed at a

10 public rally in Washington, D.C., and one of the

11 posters was displayed at a rally on the

12 courthouse steps of the Court where Dred Scott

13 was tried, and you got liability against the

14 defendants for those displays.

15 MS. VULLO: The deadly dozen list was not

16 in a public rally. It was during the events,

17 the March on Washington.

18 JUSTICE KLEINFELD: I asked you about one

19 thing and you answered about another. I asked

20 you about poster displays.

21 MS. VULLO: That's what I was talking

22 about, Judge, I'm sorry.

23 The poster display that I understood you

24 were talking about was the first one which we

25 called the deadly dozen list, which was in

61

1 Washington. It was not at a public rally. It

2 was -- the defendants were there meeting and

3 those people that they chose to invite

4 displaying that.

5 JUSTICE KOZINSKI: And the press.

6 MS. VULLO: And the press. And they

7 specifically --

8 JUSTICE KLEINFELD: I wasa press

9 conference.

10 MS. VULLO: -- this is the Kelner case.

11 They specifically chose to have the press --

12 JUSTICE KOZINSKI: So when the

13 president --

14 MS. VULLO: -- come so that they can

15 broadcast their message.

16 JUSTICE KOZINSKI: When the president

17 gives a press conference, that's a private

18 meeting.

19 MS. VULLO: All I'm saying, Judge --

20 JUSTICE KOZINSKI: I mean, I don't

21 understand. If you let in the press, haven't

22 you let in the world?

23 MS. VULLO: All I'm saying, it wasn't a

24 public rally. They did let in the press and the

25 reason that they let in the press was to

62

1 broadcast the message to make sure that the

2 plaintiffs heard it, and that is why it was even

3 more so --

4 JUSTICE KOZINSKI: Okay. I'm sorry.

5 MS. VULLO: -- threatening.

6 JUSTICE KOZINSKI: I'm sorry, I don't

7 understand the difference. Is the fact that you

8 can't get a lot of those people to attend your

9 event mean that it becomes not public even

10 though you invited the press? Even though

11 anybody who wants to show up there will be

12 admitted? I don't understand.

13 MS. VULLO: I was not trying to make that

14 point.

15 JUSTICE KOZINSKI: Okay.

16 MS. VULLO: The point I was trying to

17 make about the public rally and the Claiborne

18 Hardware situation was that in that situation

19 you didn't have specific individuals named and

20 that's why it becomes closer to an incitement

21 case.

22 When you get up at a public rally and you

23 just -- it's closer to Brandenburg where you are

24 advocating violence. This is a threats case

25 which is closer to Watts.

63

1 JUSTICE KOZINSKI: When you say, "We know

2 your names. We're talking down the names. We

3 know who these Uncle Toms are, the sheriff can't

4 sleep for them at night." You've got people in

5 black hats watching who is going to the store

6 actually writing down names. I mean, this is

7 what, Mobile, Alabama. This is not exactly a

8 big city. People know each other. You think

9 the fact that he didn't say, "We know their

10 names and here they are," makes a big

11 difference? I don't know.

12 MS. VULLO: In the Claiborne Hardware

13 case?

14 JUSTICE KOZINSKI: Yes.

15 MS. VULLO: I'm confused with the Mobile,

16 Alabama reference.

17 JUSTICE KOZINSKI: I'm sorry, where was

18 it?

19 MS. VULLO: Okay.

20 JUSTICE KOZINSKI: I know it was

21 somewhere in the south.

22 MS. VULLO: I think it was Mississippi.

23 JUSTICE KOZINSKI: Same place, I'm sorry.

24 MS. VULLO: Okay. Mobile, one of the

25 doctors --

64

1 JUSTICE KOZINSKI: I'm sorry.

2 MS. VULLO: Dr. Patterson was killed in

3 Mobile, Alabama.

4 JUSTICE KOZINSKI: I'm sorry. It was

5 somewhere in the south in a not very big

6 community where people could actually visually

7 recognize people as they were going to the

8 store, so I -- and he says, "We know who they

9 are." And the only difference is he didn't say,

10 "And here's their names." He says, "We know who

11 they are and their necks will be broken."

12 MS. VULLO: I think it's very significant

13 when you identify the target of your threat.

14 And that's why the Watts case of the Supreme

15 Court, same term as the Brandenburg case, are

16 two different principles of constitutional law.

17 The threats is the statement to a

18 particularly-named individual, and that's why,

19 Judge Kleinfeld, the bumper sticker was held not

20 to be a threat because there --

21 JUSTICE KLEINFELD: Let me ask you about

22 that name.

23 MS. VULLO: -- wasn't a specific

24 individual named on it.

25 JUSTICE KLEINFELD: There was some

65

1 Hollywood actor during the fracas in Congress

2 about the impeachment. Alex Baldwin or

3 something like that, he got on television and he

4 said, "Henry Hyde ought to be stoned to death."

5 JUSTICE KOZINSKI: Alec.

6 JUSTICE KLEINFELD: Alec? Well, he

7 probably doesn't know my name either.

8 Alec Baldwin said, "Henry Hyde ought to

9 be stoned to death." And he identified an

10 individual, advocated killing him. The threat

11 certainly came to the attention of Congressman

12 Hyde. It's something that had to be taken kind

13 of seriously.

14 Somebody, I think it was last term, some

15 people tried to burst into the house and kill

16 people, and as I remember, they did shoot some

17 people. So he had no First Amendment protection

18 then for that statement on television?

19 MS. VULLO: I suspect that Senator Hyde

20 or Congressman Hyde would have gotten protection

21 for that, but I don't think that's this case,

22 with all due respect. This is a case where the

23 defendants advocate the view that it's okay to

24 kill the plaintiffs.

25 JUSTICE KLEINFELD: You're saying that it

66

1 was unconstitutional. You said, "Congressman

2 Hyde would have gotten protection for that," you

3 meant that he would have gotten legal

4 protection? He could have had a legal remedy of

5 some sort?

6 MS. VULLO: I don't know, Judge, whether

7 he would have, but I do think that's not this

8 case.

9 JUSTICE KLEINFELD: So you think the

10 First Amendment did not protect that speech?

11 MS. VULLO: I think the First Amendment

12 might not protect that speech, but it would be a

13 question for the jury as to whether or not that

14 was a serous intention.

15 JUSTICE KLEINFELD: I have trouble

16 getting it to where it wouldn't under Claiborne

17 Hardware.

18 MS. VULLO: Claiborne Hardware, again, is

19 a case where the question was whether the NAACP

20 could be held liable for the actions of its

21 members. The individual who might target a

22 specific store owner is going to be held liable

23 under Claiborne Hardware for that particular act

24 of violence or threat of violence.

25 JUSTICE KLEINFELD: Wasn't it an NAACP

67

1 leader --

2 MS. VULLO: But the association doesn't.

3 JUSTICE KLEINFELD: -- who made these

4 threatening remarks in Claiborne Hardware?

5 MS. VULLO: Charles Evers did make some

6 remarks, but he didn't make remarks to

7 specifically identify individuals. And it was

8 in a different context. What I would submitted

9 to this Court and I know I've gone way over the

10 time is that -- these questions are questions

11 for the trier of fact considering all of the

12 facts and circumstances.

13 This circuit has repeatedly held that

14 question whether something is a threat or

15 political speech is for the jury; that deference

16 must be given to the jury's findings. Here we

17 have more than just a finding of true threats.

18 We have a finding of intention to intimidate or

19 interfere with, which means restricting one's

20 freedom of movement.

21 We have punitive damages which show that

22 the jury found very, very specific intentional

23 communication. And we have a judge's

24 injunction, the judge who presided over the

25 trial who made some very explicit fact findings

68

1 of specific intent and malice.

2 JUSTICE KLEINFELD: Under your First

3 Amendment instruction that you want that the

4 speaker does not have to intend the statements

5 to be threatening, he just has to be speaking in

6 a way that a reasonable person would perceive

7 that the statements would be interpreted as an

8 intent to do bodily harm, would that mean that

9 if not intending to threaten anyone, some

10 philosopher or politician or judge or professor

11 spoke at an antiabortion rally where others had

12 named individual abortionists, and the

13 philosopher said, "In my view, abortion is

14 indistinguishable from infanticide, either we

15 ought to allow infanticide up to a child's first

16 birthday or perhaps up to the 18th, as the

17 Romans did under the right of the father, or we

18 ought to ban abortion. It's got to be one or

19 the other."

20 If a philosopher said that, he would be

21 contributing to the climate that de-legitimizes

22 what people who perform abortions do. He would

23 be able to anticipate that in the entire context

24 of others naming abortionists at that rally,

25 that people who performed abortions or ran

69

1 abortion clinics would become more fearful

2 because of the respectability that this

3 philosopher contributed to the antiabortion

4 cause, so that philosopher would now be liable

5 under his speech.

6 Purely philosophical speech would not be

7 protected by the First Amendment under your

8 instruction; isn't that right?

9 MS. VULLO: Judge -- no, it is not,

10 Judge Kleinfeld --

11 JUSTICE KLEINFELD: Tell me why.

12 MS. VULLO: -- with all due respect.

13 The test, again, the same test that this

14 Court has applied in non-abortion cases and I

15 would submit that those same tests should apply

16 in an abortion case, but that test requires that

17 it be a reasonable speaker.

18 And I would submit that that test would

19 not be met in the case you identified for two

20 reasons: One, it would not be reasonable to

21 assume that a reasonable speaker would

22 perceive -- would understand that that's going

23 to be threatening; and, two, the listener has to

24 be reasonable. The plaintiff has --

25 JUSTICE KLEINFELD: Wait a minute. These

70

1 abortions clinics and doctors, they've been shot

2 at and some of them have been killed. They'd

3 have to be running scared.

4 It's -- it's -- a -- they have a

5 reasonable fear that other people would not have

6 of critical speech because bad things have

7 happened to them and there are some people who

8 commit horrible crimes against them.

9 So it seems to me that when a respectable

10 philosopher lends a patina of respectability to

11 the antiabortion cause, they -- he can

12 anticipate that reasonable people will grow more

13 afraid if they're on the other side.

14 MS. VULLO: There are two sides of the

15 reasonableness inquiry. Under the judge's

16 instructions and under the FACE statute, the

17 intimidation component that I was talking about

18 is putting the listener in reasonable

19 apprehension of bodily injury. I don't think

20 the listener is going to be reasonable with

21 respect to the philosopher. The listener in

22 this case is clearly --

23 JUSTICE KLEINFELD: Not the philosopher

24 alone, but the full context.

25 MS. VULLO: But not by the philosopher's

71

1 statement. Here, again, in this case, we've

2 got --

3 JUSTICE KOZINSKI: So you're saying that

4 if a jury convinced the philosopher, we'd

5 reverse?

6 MS. VULLO: I would have to know more of

7 the facts. There might have to be deference to

8 the jury's judgment.

9 JUSTICE KOZINSKI: Well, that's what

10 you're saying would not be reasonable. You were

11 giving --

12 MS. VULLO: I would say --

13 JUSTICE KOZINSKI: You were giving an

14 answer, and I'm not sure what this answer means

15 in legal terms unless it means that under the

16 facts given, we'd have to reverse.

17 MS. VULLO: Under the facts given, I

18 would submit, Judge Kozinski, that it would not

19 be reasonable for the plaintiffs in that

20 situation that Judge Kleinfeld identified to

21 perceive that the philosopher is communicating a

22 threat of bodily injury.

23 JUSTICE KOZINSKI: I understand, but

24 we're not worried about what's in their mind.

25 The question is what we do on appeal with that

72

1 issue. So I have to understand you to mean that

2 somehow if despite your best assurances it turns

3 out that a jury found to the contrary, we'd

4 reverse.

5 MS. VULLO: In that case, Judge, that

6 would probably be the proper result. And that's

7 not this case.

8 JUSTICE KOZINSKI: So we wouldn't just

9 say, "We throw it to the jury." And if the jury

10 finds that way that, you know, they have been

11 instructed, they heard the evidence and whatnot.

12 There comes a point where we say, "Look, this is

13 not a threat." And I guess the question for us

14 is, is that the point we're going to reach in

15 this case.

16 MS. VULLO: Ah, there is always,

17 Judge Kozinski, the Appellate Court always has

18 to look to see whether or not there was any

19 error.

20 JUSTICE KOZINSKI: More specifically,

21 First Amendment cases.

22 MS. VULLO: Yes. But even in First

23 Amendment cases, Judge Kozinski, there's a very

24 big difference between reviewing the record to

25 determine -- the record and the law, to

73

1 determine whether or not the ultimate First

2 Amendment inquiry has not been satisfied.

3 That's very different. And this Court in

4 liable cases, it's very different from the

5 underlying fact finding --

6 JUSTICE KOZINSKI: I have -- I have

7 somewhat of an uncomfortable feeling that all

8 individuals and groups in previous cases have

9 stood up for First Amendment speech now seem to

10 be lining up on the other side. Maybe that

11 means the threshold's been crossed or maybe it

12 just means that the issue is different.

13 You know, the ACLU, you know, it's a

14 little disquieting that individuals and

15 professors and groups who sort of normally tend

16 to stand up for speech, this is a case where

17 they've by and large lined up on the other side.

18 MS. VULLO: Well, Judge --

19 JUSTICE KOZINSKI: I don't know.

20 MS. VULLO: I would submit, Judge, that

21 this is a threats case, this is a threats of

22 violence case. It is a true threats case. The

23 ACLU and I differ on the standard and we have

24 from the beginning of the case --

25 JUSTICE KOZINSKI: But not on the result.

74

1 MS. VULLO: But not on the result because

2 of the instruction that I was discussing with

3 Judge Kleinfeld on the intimidation. I go

4 further, I say there is more reasons to affirm

5 in this case, but -- but this is not a speech

6 case in the sense of it being protected speech.

7 This is an unprotected speech case. The

8 question on whether it is abortion or

9 environmental issues or any other --

10 JUSTICE KOZINSKI: Or civil rights.

11 MS. VULLO: Or civil rights. Any other

12 issue that is a political issue. We still have

13 case law in this circuit and every other circuit

14 which says that the reasonable speaker standard

15 is the appropriate balance of First Amendment

16 protection. That's every case.

17 And under the FACE statute in particular,

18 the Eighth Circuit which has ruled on it, the

19 Second Circuit which has ruled on it, the Third

20 Circuit just last week has ruled on the FACE

21 statute. They've all upheld it. And they have

22 found those Courts to have addressed it, that

23 the reasonable speaker standard is the

24 appropriate one.

25 I would submit that this Court would be

75

1 departing from that precedent in this case from

2 going the other way. And I would suggest also

3 that if the Court did depart, there are huge

4 amounts of harmless error issues in this case,

5 including the charge that I was mentioning, the

6 punitive damages, the judge's findings.

7 I mean, no one would say that someone who

8 acted with specific intent to intimidate

9 someone, which means to place them in fear of

10 physical bodily harm, that that person is

11 exercising constitutionally-protected speech.

12 That's what the jury found --

13 JUSTICE KOZINSKI: I guess --

14 MS. VULLO: -- that's what the judge

15 found.

16 JUSTICE KOZINSKI: I guess that's the

17 question. My guess is that Evers very much

18 hoped to make the people going into those

19 boycotted stores fear violence is sort of my

20 assessment of what happened in that case.

21 MS. VULLO: I don't know the facts well

22 enough other than what's in the decision in that

23 case, but I would suspect --

24 JUSTICE KOZINSKI: That's all we know.

25 MS. VULLO: I would suspect that if Evers

76

1 made a direct statement or sent out this poster

2 or called someone on the phone and said, "I know

3 where you live. I know where you work," that

4 we'd all say that was a threat. If someone

5 called up and says, "I know where you live. I

6 know where you work," that is -- that would

7 be --

8 JUSTICE KOZINSKI: Somebody did it in

9 this case?

10 MS. VULLO: That's what the poster is.

11 That is exactly what the poster is.

12 JUSTICE KOZINSKI: Phone call.

13 JUSTICE KLEINFELD: Boy, you're being

14 metaphorical at this point. You're saying a

15 poster is like Evers calling somebody up and

16 saying, "I know where you live. I know where

17 you work." In fact, Evers said, "I will know

18 where you live and where you work and who you

19 are if you defy our boycott."

20 The poster, they didn't call somebody up.

21 They did press conferences. They displayed the

22 poster to the press.

23 JUSTICE KOZINSKI: Just to be clear,

24 there were no phone calls in this case?

25 MS. VULLO: No. I was making an analogy,

77

1 Judge Kozinski. I was making an analogy to say

2 that the poster is the equivalent to the phone

3 call, "I know where you live. I know where you

4 work," and when you have the background --

5 JUSTICE KLEINFELD: But the problem is

6 the Evers case, this Claiborne case is more like

7 that than your case, and the Supreme Court said

8 it was okay.

9 MS. VULLO: I don't --

10 JUSTICE KLEINFELD: It's kind of

11 troubling to me that people can make the kind of

12 threats that they make in the Claiborne case and

13 that it's okay. But that's the law. They're

14 the Supreme Court. It's okay.

15 MS. VULLO: Again, I don't think the

16 Claiborne case has those facts. I don't think

17 there's the history of the violence. I don't

18 think there is the perceptible target. There's

19 not a name put to the statement. And the

20 question --

21 JUSTICE KLEINFELD: Are we looking at the

22 same case: NAACP versus Claiborne Hardware?

23 MS. VULLO: Claiborne Hardware, yes.

24 There was not a specific statement to a specific

25 individual named, and the question in that case

78

1 was much more like the Brandenburg case where

2 the issue was one of incitement and not direct

3 threats; whereas, in this case, which is much

4 more akin to the posters in Gilbert and the

5 posters in Khorrami is a threats case, and I

6 would -- unless there are any more questions, I

7 am happy to answer more questions.

8 JUSTICE KOZINSKI: I'm sure the questions

9 are endless, but I think we do have to bring

10 this to an end.

11 MS. VULLO: But I would respectfully

12 submit that there is enough in the record to

13 affirm under any standard of review and any

14 instruction, thank you.

15 JUSTICE KOZINSKI: Thank you.

16 Well, we've give you five minutes for

17 rebuttal.

18 MR. FERRARA: Thank you very much. Just

19 to mention Khorrami, a representation was made

20 that Khorrami involved nothing more than a

21 poster that said, "Guilty of crimes against

22 humanity." Khorrami mailed a poster that said,

23 "Death to all Jews. Execute now. Must be

24 killed and death to the f'ing JNF," in the mail.

25 That's what Khorrami involved and that's a

79

1 typical --

2 JUSTICE KOZINSKI: It was a mailing case.

3 MR. FERRARA: Yes, yes.

4 JUSTICE KOZINSKI: Directed at the

5 targets.

6 MR. FERRARA: Yes, much more than simply

7 saying, "Guilty of crimes against humanity," an

8 explicit threat to kill.

9 Your Honor, on the issue of intimidation

10 element of the FACE charge, the definition of

11 threats of Instruction 10 is the cross of every

12 prong of liability in this case.

13 The intimidation element is specifically

14 keyed, Your Honor, to the definition of threats,

15 which states three times that an intention to

16 threaten is not necessary and that liability can

17 be imposed under FACE and RICO even if the

18 defendant positively did not intend to threaten.

19 So you could really have your

20 intimidation by means of an unintended threat.

21 In fact, the jury verdict form makes it clear

22 that unless the jury finds a threat as the judge

23 has defined it, the jury can go no further.

24 It can't even get to the intimidation

25 prong of FACE and the jury was to direct it to

80

1 stop at deliberations and retire and render a

2 verdict in favor of the defense. So

3 intimidation has to be viewed in light of the

4 jury charge of unintended threats and so that's

5 the problem.

6 We proposed a jury charge that would

7 require specific intent to intimidate by means

8 of a threat. It was rejected.

9 JUSTICE KLEINFELD: Well, doesn't the

10 jury charge precisely reflect the language in

11 the Lovell case that is a reasonable person

12 standard?

13 MR. FERRARA: Well, but the problem with

14 the reasonable person standard as this circuit

15 has recognized in United States versus Twine, is

16 that it just doesn't apply to threats between

17 private parties, especially in the context of a

18 political debate.

19 The Twine case makes it clear that there

20 is a public policy consideration with the

21 president where you can use a general intent

22 standard because the public policy is to leave

23 the president free of threats. But Twine

24 specifically says, referring to Roy, Your Honor,

25 and I'm quoting, "Because of the distinction

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1 drawn in Roy between the president and private

2 citizens, it is clear that the general intent to

3 threaten required by Section 871 is not

4 sufficient for a conviction under 875 C and 876.

5 These latter sections concerned with private

6 citizens and other public officials logically

7 require a showing of a subjective specific

8 intent to threaten."

9 And Your Honor, that's the case even

10 where there is threatening language. All the

11 more so on this case where there's no

12 identifiable threat, and the utterances are in

13 the context of a political debate. And having

14 said that, I will rely on my briefs. And we

15 seek obviously reversal of the verdict below and

16 the injunction.

17 JUSTICE KOZINSKI: Well, let me -- let me

18 play Curious George here --

19 MR. FERRARA: Sure.

20 JUSTICE KOZINSKI: -- and ask a question.

21 Have the parties considered mediating this case?

22 You've all heard our questions and doubts and

23 concerns about this, and I'm just wondering, I

24 realize this is not exactly a friendly group of

25 adversaries, but we've seen a distinguished

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1 member of our Court mediate a case recently, a

2 criminal case.

3 I'm just wondering whether the essential

4 interests of the parties could not be maintained

5 by attempting to resolved this now that you've

6 sort of heard what we all have on our minds, and

7 would you like us to defer submission for a few

8 days and have you consider the possibility?

9 MR. FERRARA: Well --

10 JUSTICE KOZINSKI: You know, I -- you

11 probably know more about this case now than you

12 did when you walked in this morning.

13 MR. FERRARA: Yes.

14 JUSTICE KOZINSKI: I hope. I don't know

15 what the decision would be, but, anyway, any

16 interest at all?

17 MR. FERRARA: I think we attempted

18 discussions before trial.

19 JUSTICE KOZINSKI: You have attempted?

20 MR. FERRARA: Yes. It was not fruitful.

21 JUSTICE KOZINSKI: Well, we'll order

22 submitted then, and if the parties sort of walk

23 out and see the courthouse steps and decide that

24 they would like us to hold off, you can submit

25 us a letter, and I'm sure we will entertain

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1 favorably with oral submission to let you.

2 The good officers of one of our judges or

3 our mediation office you think might be helpful

4 in this, I realize we're talking some big dollar

5 figures, but I am not sure how many dollars -- I

6 mean, I don't know, I can't obviously speak to

7 this, but think about it, okay?

8 MR. FERRARA: Certainly, Your Honor.

9 JUSTICE KOZINSKI: I think it's a

10 significant case. I do want to thank both

11 counsel.

12 I didn't hear anything from the other

13 side, I was wondering, any interest in mediation

14 on your side?

15 MS. VULLO: Ah, I'm always open to

16 mediation, but I don't think that it would be

17 fruitful in this case -- (inaudible) significant

18 discussion.

19 JUSTICE KOZINSKI: You have --

20 MS. VULLO: Certainly, if some of my

21 clients are in the courtroom, I would certainly

22 discuss it with them.

23 JUSTICE KOZINSKI: Well, we'll defer

24 submission for two days. And if in that time we

25 hear something from the parties, we'll defer

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1 submission further. I think it's worth thinking

2 about, okay? I do think it's worth thinking

3 about.

4 As I said, you know more now than you did

5 before perhaps. In any event, I do want to

6 thank counsel on both sides for really excellent

7 argument and very thoughtful and very

8 (inaudible).

9 MR. FERRARA: Thank you for the privilege

10 of being here.

11 JUSTICE KOZINSKI: And the case just

12 argued will --

13 (End of proceedings.)

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