The First Amendment doesn’t protect death threats — not even when you’re an anti-abortion activist who believes God is on your side. That’s the message that the 10th U.S. Circuit Court of Appeals sent on Tuesday, when it determined that Angel Dillard must stand trial for a letter in which she implied planning to bomb an abortion provider’s car.
In January 2011, Dillard sent the letter to Dr. Mila Means, who at the time was training to offer abortion services at her family practice in Wichita. Less than two years earlier, Dr. George Tiller had been murdered, leaving Kansas’ largest city without a single abortion provider. It’s clear from Dillard’s letter that she wanted to keep it that way by intimidating Means into abandoning her training. The letter warned Means that abortion opponents would be tracking her every move, investigating her background, and identifying her friends.
“If Tiller could speak from hell, he would tell you what a soulless existence you are purposefully considering, all in the name of greed,” the defendant, Angel Dillard, wrote to Dr. Mila Means in January 2011. Dillard continued, “You will be checking under your car everyday — because maybe today is the day someone places an explosive under it.”
The letter never directly states that Dillard actually intended to harm Means or her car, a distinction that led a lower court to decide that Dillard was exercising her right to free speech. But the U.S. Justice Department begged to differ, and it appealed that ruling so that it could pursue a civil lawsuit against her under 1994’s Freedom of Access to Clinic Entrances Act (FACE). One judge in the Court of Appeals agreed, but the other two cited the letter’s context when they overturned the original ruling. Tiller’s death loomed large in Wichita in 2011, and Dillard had befriended his killer, Scott Roeder, while Roeder had been in jail awaiting trial. Even hints about an assassination attempt could — and probably should — have given Means reason to fear for her life.
The majority was unmoved by Dillard’s argument that she did not herself say she would plant a bomb on Means’ car. “A defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence, so long as a reasonable recipient could conclude, based on the language of the communication and the context in which it is delivered, that this was in fact a veiled threat of violence by the defendant or by someone acting under her direction or in conspiracy with her,” [Circuit Judge Monroe] McKay wrote.
Dr. Means spent more than 40 minutes explaining her change of heart on abortion, speaking in a confessional tone. “I heard a person who step by step by step had gotten to this place,” Ms. Lear said. “She was on a mission, she knew what she was getting into.”
Unfortunately, Means’s landlord doesn’t agree with her convictions. Shortly after Dillard sent the letter, the people at Foliage Development, Inc. secured a restraining order to prevent Means from performing abortions on their property, accusing her of creating a nuisance. To this day, Means can only perform abortions at South Wind Women’s Center, a clinic rebuilt at the site of Tiller’s old practice.
Means’s mission has taken terrific courage, but this decision does not guarantee that she’ll be kept safe from threats like Dillard’s in the future. Dillard’s lawyers say they have not decided whether to challenge the ruling. Even if they don’t, the Appeals Court has not established whether Dillard has violated the FACE Act, just that the Justice Department isn’t violating her Constitutional rights by suing her. But they’ve freed Means to continue her heroic work while the government at least tries to punish the worst monsters of the anti-abortion movement.
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