Let the People Speak: Terrorism, the Abortion Debate, and Reduction of the Jury Award in Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists

• Author: Paige Nelson
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.A. & B.S., University of Arizona, 2002
• Pages: 679-701

J.D. Candidate, The University of Iowa College of Law, 2007; B.A. & B.S., University of Arizona, 2002. Kudos to the editors and members of Volumes 91 and 92 of the Iowa Law Review for their good humor throughout the editing process.

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I Introduction

More than any other nation in the world, the United States understands that the decision-making processes in a truly democratic system are the result of spontaneous, rigorous, and informed public debate.¹ Political speech is enshrined in our First Amendment jurisprudence as the protector of all other rights.²

The most heated national debate in recent times has been that of abortion.³ Not all of the participants in the debate have abided by the democratic imperative to keep the debate open, however, and they have tried to silence the opposition with terroristic⁴ violence and threats of violence.⁵ In response, Congress enacted the Freedom of Access to Clinic Entrances Act ("FACE"),⁶ which provides a federal cause of action against such behavior.

A highly controversial action brought under FACE, Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, involved threats against an abortion clinic and its practitioners.⁷ The jury's punitive-damages award against the anti-abortion coalition that made the threats totaled approximately $108 million.⁸ Following sharp criticism of the case and its punitive-damages total, the Ninth Circuit recently reduced the jury's award to approximately $5 million under the relatively new substantive due-process standards for punitive damages.⁹

This Note addresses the following questions: (1) Was the Ninth Circuit correct in reducing the jury award in Planned Parenthood?; and (2) HowPage 680 should due-process standards be applied in similar contexts? It concludes that the doctrine of substantive due process should be limited in the context of punitive-damages awards where: (1) procedural due-process standards have been met, thereby increasing the likelihood that the jury was acting rationally; and (2) the defendant is unable to pay any large award and so is not practically affected by the relative size of the verdict. In such cases, the actual effect of a large punitive-damages award is to send a potent message publicly denouncing the defendant's behavior. The purpose of punitive damages is to provide the jury, as the voice of the public, a forum in which to express its support of a legally protected right and its condemnation of those who impinge upon it.¹⁰ To allow the judiciary wide discretion to mute or muffle the jury's voice is to stifle democratic political speech in discordance with the principles of the First Amendment.¹¹

Part II of this Note provides brief background information on political speech, the abortion debate, FACE, Planned Parenthood, and the development of substantive due-process standards in relation to punitive damages. Part III presents an argument against applying substantive due-process standards to the jury awards in Planned Parenthood and similar cases.

II Background

A Free Speech and ITS Place in a Liberal Democracy

The constitutional jurisprudence of the United States provides the most vigilant protection of speech-especially political speech-in the world.¹² As the paradigmatic embodiment of a liberal democracy dedicated to self-government,¹³ the United States has a "profound national commitment toPage 681 the principle that debate on public issues should be uninhibited, robust, and wide-open."¹⁴ Nearly a century ago, Justice Oliver Wendell Holmes, Jr. famously presented the rationale underlying this commitment as the arrival at political truth through "free trade in ideas."¹⁵ A half-century later, First Amendment scholar Alexander Meiklejohn also concluded that political speech facilitates democratic self-government, analogizing public debate to "town meetings."¹⁶ Constitutional-law scholars Kathleen M. Sullivan and Gerald Gunther have since supplemented these earlier formulations, identifying four functions of free political speech: first, "broad debate informs and improves the making of public policy"; second, free speech "keeps clear the channels of political change"; third, free speech prevents government abuse of power; and fourth, free speech "promotes political stability by providing a safety valve for dissent."¹⁷

The jurisprudence of the First and Fourteenth Amendments prevents Congress and state governments from interfering with the content of the debate that informs our democratic system.¹⁸ Procedural restraints, however,Page 682 may enhance the quality of the debate and ensure that a variety of voices are heard. Invoking a simpler version of the American democratic process, Professor Meiklejohn's "town meeting" metaphor crystallizes his theory of political speech's role in a liberal democracy and provides a model for the kinds of procedural restraints on speech necessary for the process to be effective:

In the town meeting the people of a community assemble to discuss and to act upon matters of public interest . . . . Every man is free to come. They meet as political equals. Each has a right and a duty to think his own thoughts, to express them, and to listen to the arguments of others. The basic principle is that the freedom of speech shall be unabridged. And yet the meeting cannot even be opened unless, by common consent, speech is abridged.¹⁹

Meiklejohn enumerates the restraints present in the town meeting: the "'call[] . . . to order,'" turn-taking, relevant remarks, and so on, noting especially that the meeting participant who "is abusive or in other ways threatens to defeat the purpose of the meeting . . . may be and should be declared 'out of order.'"²⁰

B The Abortion Debate

One of the most heated political debates in recent United States history is the struggle over abortion rights.²¹ The issues it touches upon, such as privacy, family, self-determination, religion, bodily integrity, children, sex,Page 683 and life, lie at the core of the nation's value systems.²² Although the Supreme Court decided Roe v. Wade²³ over thirty years ago, granting American women the right to legal abortion, the controversy has raged on.²⁴ In his final book, Carl Sagan offers a panoply of the forms abortion-related speech has taken, suggesting that Roe was just a bazooka shot in the battle:

The issue had been decided years ago. The court had chosen the middle ground. You'd think the fight was over. Instead, there are mass rallies, bombings and intimidation, murders of workers at abortion clinics, arrests, intense lobbying, legislative drama, Congressional hearings, Supreme Court decisions, major political parties almost defining themselves on the issue, and clerics threatening politicians with perdition. Partisans fling accusations of hypocrisy and murder. The intent of the Constitution and the will of God are equally invoked. Doubtful arguments are trotted out as certitudes. The contending factions call on science to bolster their positions. Families are divided, husbands and wives agree not to discuss it, old friends are no longer speaking. Politicians check the latest polls to discover the dictates of their consciences. Amid all the shouting, it is hard for the adversaries to hear one another.²⁵

Indeed, not all debates have the orderly character of the "town meetings" envisioned by Professor Meiklejohn. Whatever the rules of engagement, however, it is clear that both sides must be permitted to discharge their views in order for there to be a battle at all.²⁶

C The Freedom of Access to Clinic Entrances Act

Congress enacted FACE²⁷ in 1994, responding to escalating violence in abortion-clinic protests.²⁸ The legislative report accompanying FACE cites "more than 1,000 acts of violence against providers of reproductive health services," including "at least 36 bombings, 81 arsons, 131 death threats, 84Page 684 assaults, two kidnappings, 327 clinic 'invasions,' and one murder," as a primary motivation behind the legislation.²⁹ Congress recognized that a faction of anti-abortion activists had spurned the traditional channels of democracy and had taken the law (and the process) into its own hands through a "campaign of violence" that "resulted, as intended, in access to the constitutionally protected right to choose being denied to thousands of women nationwide against their will."³⁰ FACE creates a federal cause of action carrying significant criminal and unlimited civil penalties for those who "by force or threat of force or by physical obstruction, intentionally 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."³¹ The civil remedies...