The opinion of the court was delivered by: J. Thomas Marten, Judge
Dr. Mila Means, a family practitioner in Wichita, Kansas, has publicly announced that she is receiving the training required for her to perform abortion services. Means had been a friend of Dr. George Tiller, a prominent provider of abortion services, until his murder on May 31, 2009, by Scott Roeder. On or around January 19, 2011, defendant Angel Dillard wrote a letter to Means urging her to drop her plans. Invoking consequences ranging from a loss of sleep to intense public scrutiny to eternal damnation, Dillard also wrote that Means "will be checking under your car everyday - because maybe today is the day someone places an explosive under it." Means' office manager referred the letter to the police, and the United States subsequently commenced this action, seeking an award of damages on behalf of Means, and a civil monetary penalty against Dillard.*fn1
Dillard's letter, which was sent in an envelope bearing her name and return address, states in full:
It has come to our attention that you are planning to do abortions at your Harry St. location. I am stunned that you would take your career in this direction. Fewer people than ever before are pro-abortion, quality physicians wouldn't even consider associating themselves with it, and more Americans than ever before are unwilling to turn a blind eye to the killing of a baby when the ratio for adoption is 36 couples to 1 baby.
Maybe you don't realize the consequences of killing the innocent. If Tiller could speak from hell, he would tell you what a soulless existence you are purposefully considering, all in the name of greed. Thousands of people are already looking into your background, not just in Wichita, but from all over the U.S. They will know your habits and routines. They know where you shop, who your friends are, what you drive, where you live. You will be checking under your car everyday - because maybe today is the day someone places an explosive under it. People will be picketing your home, your office. You will come under greater scrutiny than you've ever known, legally and professionally. Much worse than the disciplinary actions and ethical concerns that you've been facing. You will become a pariah - no physician will want to associate with you. You will be seen like all the other hacks that have stooped to doing abortions when they weren't good enough to maintain a real practice. You will lose your legitimate clientele, as no one bringing a baby into this world wants to be in the same facility where you are also killing them. You will have trouble keeping staff who are willing to participate in innocent blood-shedding and won't be able to keep the sanitary conditions necessary to maintain a healthy medical facility. You will end up having the same kind of rat-infested, dirty facility that they have in north-eastern Kansas. Anyone who partners with you will experience the same headaches. Not to mention the fact that you will be haunted by bloody, squirming, dismembered babies in your sleep. You can't do what is morally reprehensible and enjoy peace of mind. The Bible says, "There are six things the Lord hates ... hands that shed innocent blood, a heart that devises evil schemes, feet that are quick to rush into evil..." Proverbs 6:16-18. Abortion kills human life-it matters not if you kill it at 6 weeks or at 26 weeks, it's still the unnatural, violent death of a human baby for the sake of convenience. You are doing what the Humane Society wouldn't allow to happen to a pregnant dog or cat.
I urge you to think very carefully about the choices you are making. There are 3 churches within 1 block of your practice, and many others who must take a stand. We will not let this abomination continue without doing everything we can to stop it. We pray you will either make the right choice and use your medical practice to heal instead of kill, or that God will bring judgment on you, the likes of which you cannot imagine. We don't want you killing our children in our community. Good people are tired of this rampant evil, and will stand against you every step of the way. Do the world a favor and ABORT this stupid plan of yours. It's not too late to change your mind.
The government brought this action under the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. § 248(a)(1) which provides criminal and civil liability for any person who by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.
FACE authorizes civil actions both by persons aggrieved by a violation of the Act, and by the Attorney General of the United States. In the case of the latter, the Act provides in subsection (c)(2):
(A) In general. - If the Attorney General of the United States has reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation of this section, the Attorney General may commence a civil action in any appropriate United States District Court.
(B) Relief. - In any action under subparagraph (A), the court may award appropriate relief, including temporary, preliminary or permanent injunctive relief, and compensatory damages to persons aggrieved as described in paragraph (1)(B). The court, to vindicate the public interest, may also assess a civil penalty against each respondent -
(I) in an amount not exceeding $10,000 for a nonviolent physical obstruction and $15,000 for other first violations; and
(ii) in an amount not exceeding $15,000 for a nonviolent physical obstruction and $25,000 for any other subsequent violation.
FACE explicitly defines "intimidate" as "to place a person in reasonable apprehension of bodily harm to him- or herself or another." § 248(e)(3).
Dillard has moved to dismiss the action, arguing that her letter was constitutionally protected speech, cited the Supreme Court's recent decision in Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011). In Snyder, the Court reiterated that "'speech on public issues occupies the highest rung of the hierarchy of First Amendment values'" 131 S.Ct. at 1215 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 760 (1985). Dillard contends that the court's finding, at the conclusion of the hearing on the government's motion for injunctive relief, that the letter was not a true threat, is the law of the case and is dispositive as to her motion to dismiss. (Dkt. 28, at 3, 22).
The First Amendment's prohibition of laws limiting the freedom of speech does not include "true threat[s]." Virginia v. Black, 538 U.S. 343, 359 (2003). Prosecution under FACE, therefore, has been interpreted to require the existence of a true threat, that is, a "threat where a reasonable person would foresee that the listener will believe he will be subjected to physical violence, with the intent to intimidate physicians." Planned Parenthood of Columbia/Williamette v. American Colation of Life Activists, 499 F.3d 949, 958 (9th Cir. 2005). See also Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir.2002) (upholding FACE against First Amendment challenge).
In the context of a state criminal prosecution for cross-burning, the Supreme Court has emphasized the intent of the accused:
"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.... Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
Virginia v. Black, 538 U.S. at 359-60 (2003) (citations omitted).
The determination of whether a given communication is a true threat is "a fact-intensive inquiry, in which the language, the context in which the statements were made, as well as the recipients' responses are all relevant." Nielander v. Bd. of County Commissioners, 582 F.3d 1155, 1167-68 (10th Cir. 2009) (discussing true threats in context of 42 U.S.C. § 1983 action for malicious prosecution). In determining whether communications constitute an unprotected true threat, they "should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." United States v. Orozco-Santillan, 903 F.2d 1262 1265; (9th Cir. 1990), overruled in part on other gds., United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002). The Eight Circuit has specifically applied this standard to prosecutions under FACE, holding that "[t]he court must analyze an alleged threat in the light of [its] entire factual context and decide whether the recipient of the alleged threat could reasonably conclude that it expresses a determination or intent to injury presently or in the future." United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) (internal quotations and citations omitted). It is not necessary that a speaker actually intend to commit violence. Virginia v. Black, 538 U.S. at 360. The touchstone is whether "an ordinary, reasonable person who is familiar with the context of the communication would interpret it as a threat of injury." United States v. Spring, 305 F.3d 276, 280 (4th Cir. 2002) (alterations and internal quotations omitted).
"A true threat 'conveys a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected vehement, caustic unpleasantly sharp attacks on government and public officials.'" Nielander, 582 F.3d at 1168 (quoting United States v. Crews, 781 F.2d 826, 832 (10th Cir. 1986) (alterations and internal quotations omitted). In Didwiddie, the court recognized that numerous factors are relevant to this inquiry, including the reaction of the recipient of the threat and of other listeners, whether the threat was conditional, whether the threat was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim in the past, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. This list is not exhaustive, and the presence or absence of any one of its elements need not be dispositive.
Statements which are "made in jest, [or] communicated to a large audience, or political in nature, or conditioned on an event that would never happen" are statements more likely to be found to be protected speech rather than a true threat. United States v. McDonald, 2011 WL 3805759 (4th Cir. Aug. 30, 2011). Whether a statement is made anonymously may, depending on the circumstances of the case, increase or decrease the likelihood that an reasonable listener would infer the existence of a true threat. See United States v. Bagdasarian, 652 F.3d 1113, 1120-21 n. 20 (9th Cir. 2011). "The fact that a threat is subtle does not make it less of a threat." United States v. Gilbert, 884 F.3d 454, 455-56 (9th Cir. 1989).
The context of a statement may also establish, in some cases, that a prediction of violence by third parties may be reasonably taken as a true threat. In United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir. 1999), the defendant was charged transmitting a bomb threat by telephone, in violation of 18 U.S.C. § 844(e), based upon his use of an answering machine message urging a white supremacist revolution. The message then stated a letter from a high ranking revolutionary commander has been written and received demanding that action be taken against the government by all white warriors by December 15th and if this action is not taken, bombs will be activated in 15 pre-selected major U.S. cities. That means December 15, 1996, one week from today.
In [other] words, this war is going to start with or without you. 168 F.3d at 394. The defendant contended that the message was not a true threat, in part, because it merely reported a potential threat by a third party, rather than reflecting a direct statement of his own actions. The Tenth Circuit rejected this as a blanket defense. Given the objective nature of the true-threat inquiry, the court held, it is logical that a defendant who repeats a third party's threat may be subjected to criminal liability.... If a defendant's repetition of a third party's threat is reasonably interpreted as a simple disclosure of the existence of the threat for informational purposes, no illegality has occurred. If, on the other hand, a defendant's repetition of a third party's threat is reasonably interpreted as communicating the defendant's own intent, purpose, or goal to "kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive," the defendant has violated 18 U.S.C. § 844(e). In the latter scenario, the defendant has effectively adopted the third party's threat as his own.
There is no requirement that the defendant convey an intent to carry out the threatened conduct himself. See United States v. Dinwiddie, 76 F.3d 913, 925 n. 9 (8th Cir.1996) (citing United States v. Bellrichard, 994 F.2d 1318, 1319--24 (8th Cir.1993)). 168 F.3d at 396 (emphasis in original).
The Second Circuit has expressed a similar view in a prosecution under FACE. in New York ex rel. Spitzer v. Operation Rescue National, 273 F.3d 184, 196 (2nd Cir. 2001). In conducting its inquiry as to the existence of a true threat, a court must be sure that the recipient is fearful of the execution of the threat by the speaker (or the speaker's co-conspirators). Thus, generally, a person who informs someone that he or she is in danger from a third party has not made a threat, even if the statement produces fear. This may be true even ...