PLANNED PARENTHOOD OF THE

COLUMBIA/WILLAMETTE, INC.;

ET AL., Plaintiffs,

Civil No. 95-1671-JO

v.

AMERICAN COALITION OF LIFE

ACTIVISTS; ET AL., Defendants.

NO. 6

I have given you the general instructions that should guide you in your deliberations. I will now discuss with you the law that governs plaintiffs' specific claims in this case.

There are six plaintiffs in this case, two organizations and four individuals. They are Planned Parenthood of the Columbia/Willamette, Inc.; Portland Feminist Women's Health Center, also known as All Women's Health Center; Dr. Robert Crist; Dr. Warren Hern; Dr. Elizabeth Newhall; and Dr. James Newhall. There are fourteen defendants in this case, two organizations and twelve individuals. They are American Coalition of Life Activists, Advocates for Life Ministries (which publishes Life Advocate Magazine), Michael Bray, Andrew Burnett, David Crane, Timothy Dreste, Michael Dodds, Joseph Foreman, Roy McMillan, Bruce Murch, Catherine Ramey, Dawn Stover, Donald Treshman and Charles Wysong.

The plaintiffs together have asserted four separate claims that the defendants engaged in prohibited activities. The first claim is that the defendants committed acts that violate the Freedom of Access to Clinic Entrances Act, or FACE. Plaintiffs have brought this claim against all defendants. The second claim is that the defendants committed acts that violate the Racketeer Influenced and Corrupt Organizations Act, or RICO. Plaintiffs have brought this claim against all defendants except the American Coalition of Life Activists, which, as I will explain later, plaintiffs allege to be the RICO enterprise and is not, therefore, a separate defendant on this claim. The third and fourth claims are conspiracy claims. Plaintiffs' third claim, brought against all defendants, is that the defendants conspired to commit acts that would violate FACE. Plaintiffs' fourth claim is that all the defendants except the ACLA conspired to commit acts that would violate RICO.

Plaintiffs claim that defendants violated one or more of these statutes by publishing and/or distributing the "Deadly Dozen List," the "Poster of Dr. Crist," and the "Nuremberg Files." Plaintiffs further claim that defendants published these statements on numerous occasions, each of which is alleged by plaintiffs to be a separate unlawful act. Plaintiffs claim that these were all "true threats" against them, made in an unlawful attempt to prevent the plaintiffs from continuing to provide abortions.

You must consider whether each plaintiff has succeeded in proving each of his or her claims against each defendant. I will instruct you on the elements which the plaintiffs must prove under each claim. Your decision on this matter requires you to assess each challenged statement with respect to each particular defendant and each particular plaintiff.

I will begin by instructing you on the standard you must apply in determining whether the Deadly Dozen List, the Crist Poster and the Nuremberg Files are threats.

NO. 7

A woman's right to obtain an abortion is not an issue in this lawsuit. The United States Supreme Court has declared that women have a constitutional right to choose to have an abortion. Thus, no one is permitted to violate the law because of their views about abortion, even if those views are very strongly held. It is legal and proper, however, and within any free speech right, for one group that is opposing another group to refer to them in the terms they choose. Pro-life protesters often refer to abortion providers as abortionists. You are not to allow yourselves to be biased against the defendants because they use the terminology of their protest movement.

Thus, your consideration of plaintiffs' claims in this case should not be influenced in any way by your own personal views on abortion.

NO. 8

The First Amendment permits persons to join with others to express a particular viewpoint. Speech is protected even if the speech is insulting, outrageous, or even offensive. This is so even if the speech is uninvited and unwelcomed by the person to whom it is directed or to others within earshot. Even speech that is coercive may be protected, if the speaker refrains from violence or from making a "true threat." Moreover, the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is protected speech under the First Amendment. However, true threats are not protected by the First Amendment.

NO. 9

As I have explained to you in the course of this trial, there is no claim in this case that any of the three statements I have listed for you is an "incitement" to violence by persons other than the defendants. What is incitement? Incitement is speech which must be intended to produce, and is likely to produce, imminent violence or violation of law through the actions of persons other than the speaker. Imminent means following closely in time.

There is no claim in this case that the three statements I have listed for you have produced imminent violence against plaintiffs. Plaintiffs claim only that the three statements are threats of force, not that the statements have caused anyone, or will cause anyone in the future, to use force against plaintiffs.

You are not to consider any evidence that the three statements allegedly "incite" violence against plaintiffs. You are to consider only whether the statements are "true threats," as I will now define that term for you.

NO. 10

A statement is a "true threat" when a reasonable person making the statement would foresee that the statement would be interpreted by those to whom it is communicated as a serious expression of an intent to bodily harm or assault. This is an objective standard -- that of a reasonable person. Defendants' subjective intent or motive is not the standard that you must apply in this case. In other words, even if you believe that the defendants did not intend the statements to be threatening, you must still find those statements to be threats if you conclude that a reasonable person would have foreseen that those statements, in their entire factual context, would have been interpreted as statements of an intent to bodily harm or assault.

Whether one or more of the defendants made statements that are threats is a matter for you, the jury, to decide. In making this determination, you should consider the total context and circumstances under which the statements were made. The word "context" means all of the facts and information that would have been known to the person making the statement, including the events surrounding each publication of the statement and the reaction of the listeners to it. The context in this case may include the other posters you heard about, other statements and actions by the defendants and others, the history of anti-abortion violence, and the reaction of the listeners. Plaintiffs, of course, have the burden of proving which of these alleged contextual facts and circumstances were within the knowledge of the defendants. The context also includes evidence of the defendants' motives or intent in creating, preparing or disseminating the statements at issue. In evaluating context, you should also consider evidence presented by the defense of non-violence and permissive exercise of free speech.

I remind you, however, that plaintiffs' claims are based only on the three statements I have listed for you. The evidence concerning other posters, other statements and actions, history of violence, including the violent actions of others you have heard evidence about, and defendants' subjective motives are admissible to show the context or circumstances in which the defendants allegedly made the statements, and which you must consider in determining whether a reasonable person should have foreseen that any of the three statements at issue would be interpreted as threats.

Even a statement that is ambiguous, subtle or conditional can amount to a threat in light of the factual context in which the statement was made. Further, you need not find that the defendants intended to carry out the threat or were even capable of carrying out the threat in order to find that a statement was, in fact, a threat. Nor must you find that any of the defendants actually intended to threaten plaintiffs, so long as you find that a reasonable person would have foreseen that it would be understood to be threatening.

If you find that any of the defendants' alleged statements, in context, were "true threats," then you must next determine whether they were made in violation of FACE or RICO. If you find that plaintiffs have failed to prove any true threats, your verdict must be for the defendants and you will not proceed to evaluate the alleged FACE or RICO violations.

NO. 10a

You have heard evidence during this trial about what the defendants were thinking or what they believed about what they were doing in creating, disseminating, or publishing the three statements alleged to be true threats. I want to make sure that you fully understand the relevance of this evidence to your deliberations on the issues in this case.

In deciding whether the statements are true threats, you may consider the evidence of what the defendants were thinking or what their motives were as part of the context you may consider in deciding what a reasonable person would foresee. This does not change the test of "true threat," as I have just instructed you: You must decide only whether a reasonable person, in the context in which the statement was made, would foresee that the person to whom the statement was communicated would interpret it to be a serious expression of an intent to inflict bodily harm or assault. In other words, the test is not the subjective view of the defendants, but the objective view of a reasonable person.

You will also consider evidence of defendants' intent in deciding other issues in the case. As I will explain in a few minutes, plaintiffs must prove defendants' intent as part of the "racketeering act" element of their RICO claims. And as I have told you several times during trial and will further instruct you, defendants' intent or malice, or lack thereof, is an element of

plaintiffs' proof in their claims for punitive damages.

NO. 11

Plaintiffs' first claim is that the defendants violated the Freedom of Access to Clinic Entrances Act, or FACE, by communicating threats of force. As pertinent to this case, FACE prohibits any person from using threats of force to intimidate or interfere with, or attempt to intimidate or interfere with, any person's ability to provide reproduction health services, like abortions.

To show that a defendant has violated FACE, plaintiffs must prove the following three elements by a preponderance of the evidence:

(1) that the defendant made a threat of force, which threat you must have found to have been a "true threat" as I have defined it;

(2) that the plaintiff is or was involved in providing services in a facility that provides reproductive health services;

(3) that the defendant made the threat of force to intimidate or interfere with, or attempt to intimidate or interfere with, the plaintiff's or any other person's ability to obtain or provide reproductive health services.

As used in this instruction, "interfere with" means to restrict a person's freedom of movement, and "intimidate" means to place a person in reasonable apprehension of bodily harm either to that person or to another. "Reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services relating to the human reproductive system, including services related to pregnancy or the termination of pregnancy.

To find for a particular plaintiff on the FACE claim, you must find that a defendant used a true threat in an attempt to intimidate or interfere with a person's ability to obtain or provide reproductive health services, and that the plaintiff was aggrieved or harmed by that threat.

NO. 18

Plaintiffs allege that the defendants committed racketeering acts of extortion in violation of the Hobbs Act through the use of threats of force, violence, or fear. More specifically, plaintiffs claim that the defendants committed racketeering acts by creating disseminating, and publishing the Deadly Dozen Poster, the Poster of Dr. Crist, and the Nuremberg Files, in violation of the Hobbs Act.

For you to find that a defendant committed extortion in violation of the Hobbs Act, plaintiffs must prove by a preponderance of the evidence that:

(1) a defendant, by the use of a threat of force, violence, or fear involving the Deadly Dozen Poster, Poster of Dr. Crist, or Nuremberg Files, which you must have found to have been a "true threat" as I have defined it, deprived, attempted to deprive, or conspired to deprive a plaintiff of his or her property;

(2) that the defendant acted with intent to deprive the plaintiff of his or her property; and

(3) the defendant's actions could have affected or did affect commerce from one state to another in some way.

Each violation of the Hobbs Act by extortion, attempted extortion, or conspiracy to commit extortion, constitutes a racketeering act under RICO.

I will now instruct you further as to these elements.

NO. 19

To prove extortion, plaintiff must prove that a defendant threatened force, violence, or fear to obtain a plaintiff's property. "Property" within the meaning of the Hobbs Act need not be a tangible belonging, but includes a plaintiff's protected right to provide abortion services free from wrongful threats, violence, coercion or fear. "Property" may also include money plaintiffs contend they were required to spend on security measures as a result of defendants' alleged threats.

It does not matter whether or not the deprivation of property provided an economic benefit to the defendant for you to find that a defendant committed an act of extortion.

NO. 25

If you find that any defendants violated or conspired to violate FACE or RICO, then you must determine whether the violations caused any of the plaintiffs any injuries or damages and, if so, how much money will compensate for those injuries or damages. With respect to any violation of FACE, in order for a plaintiff to recover from a defendant, the plaintiff must show by a preponderance of the evidence that a defendant's violation caused the plaintiff's injury or damages. With respect to any violation of RICO, in order for a plaintiff to recover from a defendant, the plaintiff must show by a preponderance of the evidence that a defendant's violation of RICO or conspiracy to violate RICO caused damage specifically to the plaintiff's business or property in the nature of expenses for security measures.

An injury or damage is caused by an act whenever it appears from the evidence that the act played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act. In other words, to find that a plaintiff's injury or damage was caused by a defendant's conduct, you need not find that the defendant's conduct was the sole or exclusive cause.

NO. 26

In considering the issue of damages, if any, with respect to each individual claim alleged by each plaintiff under FACE, you should assess the dollar amount you find to be justified by a preponderance of the evidence as just and reasonable compensation for all of the damages to that plaintiff. In considering the issue of damages, if any, with respect to each individual claim alleged by each plaintiff under RICO, you should assess the dollar amount you find to be justified by a preponderance of the evidence as reasonable compensation for alleged damages to a plaintiff in his or her business or property. In this case plaintiffs' economic losses are limited to those amounts incurred for security measures as a result of defendants' alleged unlawful acts.

You may not base your award of damages, if any, on speculation, because plaintiffs must prove their damages by a preponderance of the evidence. With respect to plaintiffs' FACE claims, plaintiffs' claims for compensatory damages include not only their out-of-pocket expenses, if any, but also damages for any mental anguish in the nature of fear, or shock and mental anguish from fear that you find a plaintiff suffered as a result of defendants' conduct. Damages for these types of personal injuries are not, however, recoverable under plaintiffs' RICO claims.

You should consider the amount of damages, if any, as to each defendant with respect to each claim under FACE and RICO separately and independently. For example, and by way of example only, if you determine that damages should be awarded a plaintiff under his or her RICO claim, you should award full, just and reasonable compensation for damages under the RICO claim, without regard to the damages, if any, you might award under any other claim brought by the plaintiff. If you also determine that damages should be awarded the same plaintiff under his or her FACE claim, you should again award full, just and reasonable compensation for damages under the FACE claim, without regard to the damages, if any, you have awarded under his or her RICO claim. Of course, that I am instructing you on damages is not meant in any way to suggest

that you should or should not award damages. That is for you to decide.