Hard Cases Make Bad Law . . . But Only If You Have Bad Judges

So I’m reading this case, Planned Parenthood of the Colombia/Willamette, Inc. v. ACLA , 290 F 3d 1058 (9th Cir 2002), in which a 6-5 en banc court of the Ninth Circuit upheld civil awards against a pro-life group ("ACLA") that published information about abortion doctors in the form of "Wanted" posters. These posters offered a $500 reward for anyone who could convince the doctors, through legal means, to stop their activities. However, in the past some individuals killed 3 abortion doctors featured in other pro-life groups' "Wanted" posters. There's little doubt some members of the ACLA are evil people.

But however you feel about ACLA, based upon the law, their speech cannot be silenced. The requirements for losing First Amendment protection in this situation are 1. express advocacy of unlawfulness (the ACLA's conduct is perhaps endorsement, maybe even implied advocacy, but certainly not express advocacy) and 2. immanent harm (virtually all of the named doctors were never hurt, and the 3 past murders occurred, at the earliest, 7 months after the publishing of a "Wanted" poster). In fact, besides the list, the ACLA had nothing to do with any of the murders at all. Thus, the majority's affirmance is wrong.

The Ninth Circuit has some wishy-washy “true threat” jurisprudence, so you could chalk up the majority’s error to that. One problem: the majority admits this isn’t a direct threat. Thus, "true threat" or not, to reach the majority’s result, you’d have to ignore Supreme Court precedent stating (as paraphrased by Judge Kozinski):

Where the speaker is engaged in public political speech, the public statements themselves cannot be the sole proof that they were true threats, unless the speech directly threatens actual injury to identifiable individuals. Absent such an unmistakable, specific threat, there must be evidence aside from the political statements themselves showing that the public speaker would himself or in conspiracy with others inflict unlawful harm. NAACP v Claiborne Hardware Co, 458 US 866, 932-34 (1982).

There was no evidence of such a conspiracy. Thus, ACLA should not face liability for speaking their mind, even if we despise what they have to say and how they've said it.

So the Ninth Circuit messed up again, no big deal. Maybe the majority just needs some dissenting viewpoints. But oh boy, there were some dissenting viewpoints alright:

KOZINSKI, Circuit Judge, with whom Circuit Judges REINHARDT, O'SCANNLAIN, KLEINFELD and BERZON join, dissenting.

That’s the who’s who of good judges on the Ninth Circuit from both sides of the political spectrum. If I had to make a list of the best conservative judges on the Ninth, Kozinski, O’Scannlain, and Kleinfeld would be near the top. Clearly, Reinhardt is the Ninth Circuit’s most famous liberal judge, but Berzon was one of Clinton’s most-favored, and most controversial, appointments. Berzon is supposedly as liberal and as smart as Reinhardt (these are just things I've heard; I haven't read many of Berzon's opinions). Regardless, few would disagree that these judges represent some of the best and the brightest minds in the Ninth Circuit. This is just about as impressive a crew as one could concoct.

If you were in the majority here, wouldn’t you look at the dissenters and think: goodness, maybe we’ve made a mistake? I know no judge would ever admit it, but when this kind of group tells you you've rigged the result, more reflection is probably in order. The majority can’t even explain away the dissenters as those “anarchist libertarian/ACLU liberals,” because Kleinfeld and O’Scannlain signed on too. And they certainly can’t claim the dissenting judges are too insensitive to abortion rights – Reinhardt and Berzon basically think a woman has a right to eat her baby for lunch, so long as she moves on to dessert before the 3rd trimester.

I'm not saying that "smart" judges are always right and "dumb" judges should always cow to them. I just think that the majority's actions signal much of what’s wrong with the Ninth Circuit – they didn’t like the ACLA’s behavior, so they crafted an opinion to fit their desires. The dissenters remind them that this is lousy judging (though every judge does this sometimes), but the majority just doesn't seem to care. As Judge Berzon put it:

"This case is proof positive that hard cases make bad law, and that when the case is very hard -- meaning that competing legal and moral imperatives pull with impressive strength in opposite directions -- there is the distinct danger of making very bad law."

My corollary: this danger only comes to fruition if you have very bad judges.