A larger problem is that the 9th Circuit decision opens a dangerous door by allowing implied or perceived threats to count as heavily as explicit ones. If targeted groups can define hostile speech as a threat, not much will be left of the First Amendment protection of free speech. Will judges and juries now have discretion to punish unpopular activists by inferring dire threats from the normal give-and-take of heated debate? If so, the temptation to litigate opposition groups out of existence will grow. In the Planned Parenthood case, the original jury verdict imposed $107 million in damages against the anti-abortionists, a crushing burden, particularly when the definition of "threat" is being stretched beyond what the law says.The anti-abortionists seem to have a stronger case in legal terms and in the Claiborne precedent, but Planned Parenthood has a strong argument on the facts. Despite the absence of explicit language, the "wanted" posters, I think, do add up to a death threat. Three doctors on the posters were dead already. The rest began wearing bulletproof vests and worrying whether their children would be attacked. If you think serious threats always come in explicit language, then you must believe the horse's-head-in-the-bed from "The Godfather" wasn't a serious threat either, because no explicit words from the mob were said.
This decision leaves a lot of people leaning in both directions at once, toward free speech but away from a narrow and dated legal definition of threat. Slate editor Dahlia Lithwick argued that the 9th Circuit "invented some astonishing new doctrine" in the case but also said, "Even if the Planned Parenthood opinion stands on shaky legal ground, it somehow still feels intuitively right." Can the Supreme Court finesse this one by inventing a more realistic but tight definition of "threat"? Let's hope so.