In United States v. Dillard, the Tenth Circuit has reversed the dismissal of a civil enforcement action under the Freedom of Access to Clinic Entrances Act, which prohibits (among other things) using threats of force to interfere with abortion clinics.
Angel Dillard, a Kansas anti-abortion activist, learned that Dr. Mila Means intended to perform abortions in Wichita (the previous abortion doctor in that city, Dr. George Tiller, was murdered in 2009). Ms. Dillard then wrote a letter to Dr. Means in which she warned of “consequences” that could follow from her decision and said “You will be checking under your car everyday–because maybe today is the day someone places an explosive under it.”
The government filed a civil enforcement lawsuit under the Act, and Ms. Dillard moved for summary judgment, arguing that the First Amendment protected her statements.
Although Ms. Dillard’s statement was horrible, and Dr. Means was understandably frightened by it, the district court granted summary judgment because it was not an unconditional statement, and only referred to what others might do. Thus, it did not constitute a “true threat,” and was therefore protected by the First Amendment, despite its morally repugnant character.
The Tenth Circuit, in an opinion by Judge McKay, reversed, holding that “a statement may constitute a true threat” even if conditional, especially where (as here) it is being used to intimidate someone from engaging in certain conduct. As for the argument that the statement only referred to what others might do, the Court acknowledged that a jury might well find that Ms. Dillard didn’t intend any violence herself, but that the statement was sufficiently ambiguous to present a jury question, especially given the context, which included the murder of Dr. Tiller in the same city.
Judge Baldock dissented, and although he agreed that Ms. Dillard’s statement “was undeniably ill-advised,” he also agreed with the district court that it was not a true threat. Although statements that are conditional, not imminent, or impersonal can sometimes constitute true threats, this statement was all three at once. Thus, he believed the Court’s decision was stretching the true threats doctrine beyond its bounds.
In my career, I haven’t yet had an opportunity to read deeply about the true threats doctrine, so I’m not quite sure if I agree with the Court or not (from reading the opinions, this seems like a close case). But I’d be glad to hear from more well-informed readers. If you agree with the decision, or disagree, please leave a comment. Also, if you see any commentary on this decision, please let me know and I’ll be glad to link to it here.