On March 10, 1993, Michael Griffin shot and killed Dr. David Gunn as he entered an abortion clinic in Pensacola, Florida. Before this, a "WANTED" and an "unWANTED" poster with Gunn's name, photograph, address and other personal information were published. The "WANTED" poster describes Gunn as an abortionist and invites participation by prayer and  fasting, by writing and calling him and sharing a willingness to help him leave his profession, and by asking him to stop doing abortions; the "unWANTED" poster states that he kills children at designated locations and "[t]o defenseless unborn babies Gunn in [sic] heavily armed and very dangerous." After Gunn's murder, Bray and Paul Hill (a non-party who was later convicted of murdering a different doctor) prepared a statement supporting Griffin's acquittal on a justifiable homicide theory, which ALM, Burnett, Crane, Dodds, Foreman, McMillan, Ramey and Stover joined.

Whether any given form of written or oral expression constitutes a true threat for the statute's [§ 871] purposes is a question for the trier of fact under all of the circumstances. Roy v. United States, 416 F.2d [874,] 877-78 [(9th Cir.1969)]. A few cases may be so clear that they can be resolved as a matter of law, e.g., Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664[ ] (1969) (conditional statement made at  political rally which provoked listeners' laughter was merely "political hyperbole," and question should not have gone to jury), but most cases arising under this statute present widely varying fact patterns that should be left to the trier of fact. United States v. Carrier, 672 F.2d [300,] 306 [ (2d Cir.1982) ].

(a) ... Whoever--

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to 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 ...

shall be subject to the ... civil remedies provided in subsection (c)....

Whether a particular statement may properly be considered to be a threat is governed by an objective standard--whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.

• the boycott organizers knew the identity of those members of the black community who violated the boycott, id. at 900 n. 28, 102 S.Ct. 3409;
• discipline would be taken against the violators, id. at 902, 927, 102 S.Ct. 3409;
• "[i]f we catch any of you going in any of them racist stores, we're gonna break your damn neck," id. at 902, 102 S.Ct. 3409;
• "the Sheriff could not sleep with boycott violators at night" in order to protect them, id.;
• "blacks who traded with white merchants would be answerable to him," id. at 900 n. 28, 102 S.Ct. 3409 (emphasis in the original).

• Like Claiborne Hardware, this case involves a concerted effort by a variety of groups and individuals in pursuit of a common political cause. Some of the activities were lawful, others were not. In both cases, there was evidence that the various players communicated with each other and, at times, engaged in concerted action. The Supreme Court, however, held that mere association with groups or individuals who pursue unlawful conduct is an insufficient basis for the imposition of liability, unless it is shown that the defendants actually participated in or authorized the illegal conduct.
• Both here and in Claiborne Hardware, there were instances of actual violence that followed heated rhetoric. The Court made clear, however, that unless the violence follows promptly after the speeches, thus meeting the stringent Brandenburg standard for incitement, no liability could be imposed on account of the speech.
• The statements on which liability was premised in both cases were made during the course of political rallies and had a coercive effect on the intended targets. Yet the Supreme Court held in Claiborne Hardware that coercion alone could not serve as the basis for liability, because it had not been shown-by evidence aside from the political speeches themselves-that defendants or their agents were involved in or authorized actual violence.
• In Claiborne Hardware, the boycott organizers gathered facts--the identity of those who violated the boycott--and publicized them to the community by way of speeches and a newspaper. As in our case, this ostentatious gathering of information, and publication thereof, were intended to put pressure on those whose names were publicized, and perhaps put them in fear that they will become objects of violence by members of the community. Yet the Supreme Court held that this could not form the basis for liability.

First, the exception: I would not include the imminence or immediacy of the threatened action as a prerequisite to finding a true threat delivered as part of a public speech, if all of the other factors were present. The immediacy requirement calls to mind the standard the Supreme Court erected for proscription of inciting speech in Brandenburg. But as the majority can be read to recognize and as Judge Kozinski well explains, the separate constitutional category of unprotected speech for threats does not include statements that induce fear of violence by third parties.

1. The testimony: The district court permitted the plaintiffs to call to testify an FBI agent, with 25 years experience, and two United States Marshals, one with 26 years and the other with 14 years experience. The following testimony was given:
"I told her that I was in receipt of threat information in the form of a flyer."
"That I had received a copy of a list called the Deadly Dozen List, which listed 13 doctors, who perform abortions, and that it was threatening in nature ...."
"I told her that I thought that her teachers, the teachers of her children, should know about this threat, as well, in order to maintain the security of the children."
"I told her that the children should be aware of--of the threat."
"I told him that he was on a threat list ...."
"I told her that if she received additional threats or wanted protection, these were the numbers to contact ...."
"And we discussed the reasons we believed that the threat was serious .... We discussed the escalation in the incidents over the prior couple of years. We talked about the murder of Dr. Gunn in Florida. We talked about shootings involving Dr. Tiller in Kansas. We talked about shootings involving Dr. Christ. We talked about Michael Bray and his affiliation with the American Coalition of Life Advocates."
"Well, because of the nature of the threats, and--I asked Dr. Hern to--he had a bulletproof vest. I thought it would be a good thing if he wore that."
(emphases added). The testimony not only revealed the individual law enforcement officers' opinions of the meaning of the posters, but also informed the jury about the opinion of "headquarters," as follows:
"I told him ... that I had been given instructions to notify--to immediately notify him, so that he could take some personal precautions for his safety."
"I was contacted by my headquarters in Washington, D.C. ... I advised her that the Marshal's Service was offering her protection, because her name appeared on the list, and stated that if she wanted protection, I would forward the request to our headquarters, who would then forward it to the Department of Justice."
"I was directed by my headquarters to immediately contact Dr. Warren Hern, because he was listed on the--the document. But, additionally, I was directed to contact all of the clinics in the district of Colorado." The officer further testified that he did contact all of the clinics in Colorado.
"[H]eadquarters was taking this threat very seriousily."
"I explained to Dr. Hern that Michael Bray had been a conspirator in--or involved in a conspiracy to blow up several abortion clinics. And because of his affiliation, in addition to the other things we discussed, that my headquarters believed that this was [a] serious threat, and something that-- that we had to act on immediately."
(emphases added).

The other physician, on the Deadly Dozen List, from Dodds' region, Dr. Douglas Karpen, is from the Houston, Texas, area. Dodds believes that defendant Donald Treshman provided that name.

As for the additional murder of Mr. Barrett [Dr. Britton's escort], McMillan felt that if it was, quote, right for one person, it would be right for someone else, end quote.

[Answer:] This is identical--pretty much identical to the one that was circulated about the first abortionist's termination. And this was--this, the second one was regarding Paul Hill.
Question, and this one was put out by Michael Bray, is that right?
Answer, I am not sure who put it out, but I concurred that if it was right for one person, it would be right for someone else.

Dawn Stover is the associate director of defendant Advocates for Life Ministries....

Question, are you still the associate director of Advocates for Life Ministries? Answer, I would guess that, but I have been inactive for so long that--I am still affiliated. I still talk to a couple of people in Advocates, but I don't do any directing and haven't done any directing for years. So-- and having a title has never been that big of an issue. Question, was that ever a paid position? Answer, no. Question, so you don't know whether or not your status is currently associate director in terms of the eyes of the organization? Answer, I honestly don't know how they would perceive me as. I don't know, just because I have been inactive for so long, but they may still.

At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used....

The transcripts themselves were in evidence and the jury had them to examine during deliberations; the ruling expressly permitted defense counsel to require a reading of the full transcript on cross-examination and to dispute the veracity of the readers' summaries.

The [district] court instructed the jury that the summary testimony and exhibits were not evidence, did not represent an opinion of the court or the prosecution on the credibility of witnesses, and were to be disregarded to the extent the jury found them conflicting with the testimony and evidence received at trial.