Tompkins v. Cyr

MEMORANDUM OPINION AND ORDER

Plaintiffs Norman T. Tompkins and Carolyn Tompkins obtained an $8.5 million verdict against eleven abortion protestors after a jury trial. Three motions remain pending before the Court: (1) defendants’ renewed motion for judgment as a matter of law; (2) plaintiffs’ motion for judgment on the verdict; and (3) plaintiffs’ motion for injunctive relief. For the reasons stated herein, defendants’ renewed motion for judgment as a matter of law and plaintiffs’ motion for judgment on the verdict are granted in part and denied in part. Plaintiffs’ motion for injunctive relief is granted, as modified.

I.

BACKGROUND

Norman T. Tompkins is a medical doctor who specializes in obstetrics and gynecology. *671 He practiced medicine at various hospitals in the Dallas area for 26 years and served on the faculty of the University of Texas Southwestern Medical School. As a small part of his practice, Dr. Tompkins performed abortions.

Defendants are individuals and organizations who vehemently oppose abortion. Thomas Cyr is the former president of Dallas Pro-Life Action League (“Dallas PLAN”). Phillip Benham is the former director of the Dallas/Fort Worth branch of Operation Rescue. Louis Farinholt is affiliated with an organization called Missionaries to the Pre-Born. The remaining defendants—Richard Blinn, Oldrieh Tomanek, Ann Hollacher, Ellen Pavlich, Laura Tellier, and J.R. Dannemiller—all were involved, either formally or informally, with Dallas PLAN.

The acknowledged mission of these pro-life activists was to convince Dallas area doctors to stop providing abortion services. Toward this end, Dallas PLAN devised “Operation John the Baptist.” The main thrust of this campaign was to confront doctors who performed abortions and ask them to “repent” for their “sins.” Cyr drew up a statement for the doctors to sign. 1 Any doctor refusing to sign this agreement would be “exposed” wherever he went until he agreed to stop performing abortions. This “exposure” took a variety of forms, discussed more fully below. Dallas PLAN compiled a list of twenty physicians to target in this manner. Dr. Tompkins was one of those doctors.

In October 1992, Cyr and Hollacher approached Dr. Tompkins in his driveway as he prepared to leave for work. Dr. Tompkins asked them to make an appointment to come to his office at Presbyterian Hospital. Soon thereafter, Dr. Tompkins met with Cyr and Hollacher. Cyr told Dr. Tompkins that he was a Christian, that he was morally opposed to abortion, and that he wanted Dr. Tompkins to conform his behavior accordingly. Cyr asked Dr. Tompkins to sign the agreement and allow Dallas PLAN to take his picture. (See PI. Exhs. 574, 707). Cyr mentioned that he had organized a protest against Clay Alexander, another local physician, until Dr. Alexander finally agreed to stop performing abortions. Daniel Scott, who was present at the meeting, testified that Cyr threatened to “make [Dr. Tompkins’] practice go away” if he did not sign the pledge. Dr. Tompkins refused this ultimatum and the meeting ended.

Dallas PLAN made good on its threat and organized a demonstration at plaintiffs’ home. Dr. Tompkins and his wife lived on the corner of Forest Lane, a busy six-lane street, and Forest Lakes, a cul-de-sac. Plaintiffs introduced a videotape of one of the pickets. (Pl.Exh. 721). It showed a group of people standing in the driveway, holding signs and chanting. Mrs. Tompkins testified that the demonstrators often amassed in this small area in front of her garage. The picketers would also “mill around” and march up and down the street. The evidence showed that the protestors held at least eight full neighborhood marches.

The first demonstration drew approximately ninety people. Thereafter, the numbers dwindled, but protestors still gathered at plaintiffs’ home every Saturday morning and Sunday afternoon for at least two hours. A small group of activists appeared at the house every morning when Dr. Tompkins and his wife left for work and every evening when they returned. Several witnesses identified Tomanek, Benham, Cyr, Farinholt, Hollacher, and Telher as some of the more frequent participants in these protests.

The protestors carried signs calling Dr. Tompkins a “murderer,” “abortionist,” and “tool of Satan.” Other signs showed graphic pictures of dismembered fetuses. Dallas PLAN posted fliers around the neighborhood *672 with Dr. Tompkins’ picture and the words “Not Wanted” underneath. The picketers would often chant, sing, and pray during their protests. They sometimes called out to passing cars and tried to force literature on plaintiffs’ neighbors as they entered or left their homes. In addition, Benham frequently used a bull-horn to preach to the crowd. However, other than a few citations for blocking traffic, the demonstrations were not violent.

The picketing was not confined to plaintiffs’ residence. Dallas PLAN also organized demonstrations at Presbyterian Hospital and the Boy Scouts of America headquarters where Mrs. Tompkins worked. Several protests also were staged at Highland Park Methodist Church where plaintiffs worshiped. From October 1992 until a preliminary injunction was issued in July 1993, protestors picketed at plaintiffs’ home, work, or church for at least two hours every day. Dallas PLAN established a telephone hotline and left information about the date, time, and location of the demonstrations targeted against plaintiffs.

Operation John the Baptist was not merely a picketing campaign, however. Dallas PLAN also devised a variety of other tactics to increase the pressure on Dr. Tompkins to stop performing abortions. Cyr testified that he often discussed these tactics with Benham, Farinholt, Tomanek, Hollacher, Blinn, and Tellier. Dallas PLAN published plaintiffs’ address and telephone number in its newsletter and encouraged readers to contact them at least twice a week. (Pl.Exh. 558). Consequently, plaintiffs were deluged with literally hundreds of postcards and letters exhorting them to “stop the killing.” (See Pl.Exhs. 575A-J, 576A-B, 587, 592, 595, 610, 613-638, 641-648, 698, 720). Some of the postcards bore a picture of plaintiffs’ home, including one showing the Tompkins standing outside their residence. Dallas PLAN produced and distributed these cards. Several anonymous letters indirectly threatened plaintiffs with physical harm. 2 In addition, Cyr sent a letter to plaintiffs advising them to “[minimize your losses.” Benham, Tomanek, and Hollacher also sent letters or postcards.

Plaintiffs received numerous phone calls at all hours of the day and night. Several anonymous callers made death threats. 3 Tomanek left Dr. Tompkins a message threatening to “get him.” Cyr and Tomanek called so frequently that plaintiffs recognized their voices. Plaintiffs also received phone calls from Hollacher, although she recalled only placing two such calls. About one month after this telephone campaign began, Dallas PLAN’S newsletter scolded its readers: “Tompkins’ home phone is still in operation. That only means he is not being contacted enough about his killing.” (Pl.Exh. 558).

Dallas PLAN also organized a surveillance of plaintiffs’ residence. 4 Several defendants parked their cars in a cul-de-sac that runs behind the house and kept a near-constant watch of plaintiffs inside their home. Cyr, Tomanek, and Farinholt all participated in this surveillance. Plaintiffs’ neighbor, Linda Pennington, testified that these defendants often had binoculars and a camera with them while they sat in the car. Tomanek sent several postcards to plaintiffs indicating that he had been watching them. (Pl.Exhs. 575A, 575E, 595).

Cyr, Tomanek, Benham, and Farinholt, alone or in various combinations, routinely followed plaintiffs when they left the house. Cyr took pictures of plaintiffs’ license plates for that purpose. Dr. Tompkins often knew he had been followed because he would find a Dallas PLAN pamphlet or flier under the windshield of his car. He said that he was followed nearly every time he left the garage. *673 Mrs. Tompkins was often followed to work. On one occasion, Cyr, Tomanek, and Farinholt followed Dr. Tompkins to a restaurant. They confronted him while he was eating lunch and forced him to leave. Cyr taped this incident and it was shown to the jury. (Pl.Exh. 708). On December 11, 1992, Cyr and Tomanek followed plaintiffs as they were on their way to a party. Plaintiffs tried to elude the defendants and a high speed chase ensued. Cyr and Tomanek were stopped by the police after plaintiffs called for help on their car phone. (See Pl.Exh. 577).

Benham and Tomanek trespassed on plaintiffs’ property during the pickets and at other times. Witnesses testified that Tomanek would cross plaintiffs’ property line “every chance he got” to place posters on their house and gate. Tomanek disturbed plaintiffs’ Thanksgiving dinner by rattling their front gate and yelling at them. On another occasion, plaintiffs returned home to find dozens of small white crosses planted in their yard. They noticed Benham sitting on their front porch.

Finally, Mrs. Tompkins had two frightening confrontations with Tomanek. On the evening of November 17, 1992, Tomanek rushed at Mrs. Tompkins as she opened the garage door to take out the garbage. He was yelling at her, “Mrs. Tompkins, Mrs. Tompkins, you’ve got to stop your husband from killing babies. He’s killing babies, and I’ve got to talk to you.” Tomanek got very close to her and continued to yell as she put the garage door down. Mrs. Tompkins was extremely scared and shaken by this incident because she was home alone and it was dark outside. On another occasion, Tomanek ran up to Mrs. Tompkins while she tried to get her mail. He shouted, “Stop the killing now. Aren’t you afraid, Mrs. Tompkins, I’m going to shoot you now?” Mrs. Tompkins said that this incident was particularly frightening because it occurred just after the state court heard testimony in an injunction hearing about a doctor in Florida who had been shot to death by an abortion opponent.

These activities continued unabated for ten months and had a profound impact on plaintiffs. Dr. Tompkins and his wife testified that they lost all sense of privacy and security within their own home. They became fearful for their personal safety and hired bodyguards to be with them 24 hours a day. Dr. Tompkins wore a bullet-proof vest when he was out in public and had his car equipped with a bomb detection device. He testified that he feared for his life because he knew what had happened to other doctors and thought he might be next. Plaintiffs told their two grown children not to visit anymore and did not spend the holidays with them. Mrs. Tompkins would not visit her daughter, who lived in Dallas, for fear that the protestors would discover where she lived. Plaintiffs also decided to hold their daughter’s wedding out of town and not post an announcement in the paper to avoid attracting attention. Nevertheless, plaintiffs received a letter from Cyr referring to their children. They found this particularly threatening in light of the precautions taken to protect their family. (Pl.Exh. 650).

Dr. Tompkins’ medical practice also suffered. His caseload dwindled from 12 to 15 patients a day to only two or three. He delivered just one or two babies a week instead of five or six. As a result, Dr. Tompkins was unable to pay his rent to Presbyterian Hospital. In April 1994, he closed his medical practice and moved to Gainesville, Texas, a rural community located more than an hour from Dallas. Dr. Tompkins explained that closing his practice of 26 years felt like “losing my mother.” He was forced to take work as an emergency room physician to meet his financial obligations. This involves longer, more erratic hours and is more difficult than his previous practice. Dr. Tompkins also makes less money because the majority of his patients are on Medicare and Medicaid. Plaintiffs have been forced to maintain two households because they need the extra income Mrs. Tompkins earns from her job to pay their expenses.

Plaintiffs experienced mental anguish and emotional distress as a result of the defendants’ actions. Dr. Tompkins, once affable and outgoing, is now moody, withdrawn, anxious, and easily angered. He started to have problems with high blood pressure. Dr. Tompkins fears for his life and has a recurring dream about being shot and having his daughter discover his body. He has trouble eating and sleeping. Mrs. Tompkins also has *674 problems sleeping. She no longer feels secure in her home and is afraid to be alone. Mrs. Tompkins is frightened when the phone rings. She becomes depressed, overly emotional, and is easily moved to tears.

Plaintiffs eventually took legal action to end this campaign of harassment and intimidation. They sued defendants in state court for intentional infliction of emotional distress, tortious interference, invasion of privacy, civil conspiracy, and related torts. The state court issued a preliminary injunction limiting the frequency, duration, and nature of the picketing at their home and church. Defendants removed the case to federal court after plaintiffs amended their pleadings to allege a RICO claim.

The ease was tried to a jury on October 11-17, 1995. A partial verdict was returned on October 25,1995. The jury found in favor of plaintiffs on their claims for intentional infliction of emotional distress, invasion of privacy, and civil conspiracy. 5 Plaintiffs were awarded a total of $2,248,000 for intentional infliction of emotional distress and $2,800,000 for invasion of privacy. Ten defendants were order to pay a total of $3,450,-000 in exemplary damages. The jury found in favor of all defendants on the claims for tortious interference with a residential sales contract. They were unable to reach a unanimous verdict on the claims for tortious interference with existing or prospective patients and civil RICO.

Defendants have now moved for judgment as matter of law and plaintiffs have moved for entry of judgment on the verdict. Plaintiffs also seek a permanent injunction to limit any future protests or demonstrations. The issues have been fully briefed by the parties and these motions are ripe for determination.

II.

FIRST AMENDMENT ISSUES

Before considering whether the evidence is sufficient to support the jury’s verdict as to each claim for relief, the Court must determine whether it may enter any judgment in this case consistent with the First Amendment.

A. General Principles

The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const. amend. I. Despite this absolutist language, it is clear that “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981); see also Cox v. State of Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Konigsberg v. State Bar of California, 366 U.S. 36, 49, 81 S.Ct. 997, 1006, 6 L.Ed.2d 105 (1961). Even protected expression may be subject to appropriate regulation in the interest of advancing other important rights. Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Cafe, 315 U.S. 722, 725-26, 62 S.Ct. 807, 809, 86 L.Ed. 1143 (1942).

The Supreme Court has long struggled to accommodate competing constitutional rights in the context of peaceful protests. It is well settled that peaceful picketing on an issue of public concern in a public forum is constitutionally protected. Frisby v. Schultz, 487 U.S. 474, 479-81, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988). However, it need not be tolerated in all places and under all circumstances. Bakery and Pastry Drivers and Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 819, 86 L.Ed. 1178 (1942). This is because picketing is not purely speech. Id. 62 S.Ct. at 819-20. It also is inherently a form of conduct that may create substantial disorder or invade the rights of others in certain circumstances. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969). Such “symbolic expression” or “expressive conduct” may be *675 validly regulated if the conduct itself may be regulated. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); see also Gregory v. City of Chicago, 394 U.S. 111, 125, 89 S.Ct. 946, 954, 22 L.Ed.2d 134 (1969) (Black, J., concurring).

The conduct element of picketing therefore is subject to appropriate regulation of its time, place, and manner. Carey v. Brown, 447 U.S. 455, 470, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (1980); Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972). A constitutionally permissible time, place, and manner regulation must: (1) be content-neutral; (2) be narrowly tailored to serve an important or substantial government interest; and (3) preserve ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Perry Education Ass’n v. Perry Local Educators’Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983); O’Brien, 88 S.Ct. at 1679. A regulation that satisfies these standards is permissible even though it has the incidental effect of limiting free speech. 6 Clark, 104 S.Ct. at 3069; O’Brien, 88 S.Ct. at 1678-79. The Court must analyze the First Amendment issues presented in this case with these principles in mind.

It should be emphasized that the following analysis applies only to peaceful picketing and other forms of protected expression. There was overwhelming evidence in this case that some of the defendants engaged in behavior that has absolutely no First Amendment implications. Several defendants staked out plaintiffs’ home and followed them around town. Others trespassed on private property. There also was evidence of unprovoked and threatening physical confrontations with plaintiffs. Such harassing, intrusive, and intimidating tactics are not protected by the First Amendment at all. See National Organization for Women v. Operation Rescue, 37 F.3d 646, 655 (D.C.Cir.1994) (“[U]nlawful conduct ... does not seriously implicate First Amendment concerns.”). To the extent the evidence shows that any defendant engaged in such behavior, the First Amendment presents no bar to the jury’s verdict.

Whether any defendant’s participation in the mass mailing and telephone campaign against plaintiffs may serve as a basis for liability is a closer question. It is clear that a resident has an unequivocal right to demand that offensive mail not be sent to his home. Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970). However, the sender’s duty to refrain from further communication is not triggered until the recipient affirmatively requests that further mailings cease. Id. Absent such a request, it is the recipient’s burden to throw offensive mail away. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72, 103 S.Ct. 2875, 2883, 77 L.Ed.2d 469 (1983). There is no evidence is this case that plaintiffs made an affirmative request that any defendant stop sending cards and letters.

On the other hand, threats are not protected by the First Amendment. Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969); United States v. Howell, 719 F.2d 1258, 1260-61 & n. 2 (5th Cir.1983), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). In order to escape constitutional scrutiny, the threat must be a “declaration of an intention or determination to inflict ... injury.” Howell, 719 F.2d at 1260 n. 1 (citation omitted). A threat may be direct or it may be subtle. See United States v. Gilbert, *676 884 F.2d 454, 457 (9th Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990). To the extent any defendant communicated any such threat to plaintiffs by mail, such “expression” is not protected by the First Amendment. United States v. Daly, 756 F.2d 1076, 1082 (5th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 558 (1985).

Threats communicated by telephone are similarly unprotected. In addition, Congress has provided criminal penalties against any person who “makes repeated telephone calls ... solely to harass any person at the called number.” 47 U.S.C. § 223(a)(1)(D). The First Amendment does not immunize such activity. See Gormley v. Director, Connecticut State Dep’t of Probation, 632 F.2d 938, 941 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980); United States v. Lampley, 573 F.2d 783, 787 (3d Cir.1978). Thus, any defendant who repeatedly called plaintiffs solely to harass them or communicated threats of physical injury over the telephone is not entitled to protection under the First Amendment.

B. Time, Place and Manner Regulations

As stated above, otherwise peaceful picketing activity may be regulated as to time, place, and manner. A valid regulation must: (1) be content-neutral; (2) be narrowly tailored to serve a significant government interest; and (3) preserve ample alternative channels of communication. Ward, 109 S.Ct. at 2753; Perry Education Ass’n, 103 S.Ct. at 955. The Court will consider each of these requirements in turn.

1. Content-Neutrality

The first question is whether the imposition of tort liability against defendants is content-neutral. A regulation is content-neutral when it is justified without reference to the content of the regulated speech. Clark, 104 S.Ct. at 3069. A regulation that satisfies this standard will be upheld even though it may have incidental effects on some speakers or messages but not others. Ward, 109 S.Ct. at 2754; see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 929-30, 89 L.Ed.2d 29 (1986).

The torts of intentional infliction of emotional distress and invasion of privacy are undoubtedly facially content-neutral. They apply equally to any conduct that violates the standards they impose regardless of its First Amendment implications. There are no exemptions or exceptions that might indicate favoritism or hostility toward a particular viewpoint. Cf. Mosley, 92 S.Ct. at 2293-94 (ordinance banning all picketing near school facilities except labor picketing found eon-tent-based).

Of course, both intentional infliction of emotional distress and invasion of privacy require proof that defendants’ behavior was outrageous or offensive. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993) (intentional infliction of emotional distress); Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993) (invasion of privacy). Defendants point out that speech may not be regulated merely because it is offensive, outrageous, or intended to coerce. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971); Hustler Magazine v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988). This is certainly true, but it misses the mark in this case.

Defendants fail to acknowledge that picketing involves both speech and conduct. See NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607, 618-19, 100 S.Ct. 2372, 2379, 65 L.Ed.2d 377 (1980) (Stevens, J., concurring in part); Wohl, 62 S.Ct. at 819. Courts have recognized that:

[a] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive—perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message.

Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530, 546-47, 100 S.Ct. 2326, 2338, 65 L.Ed.2d 319 (1980) (Stevens, J., concurring in the judgment) (footnotes omitted). A regulation aimed at the offensiveness of the form of the communication, rather than the content of the message, is content-neutral. See *677 Gregory, 89 S.Ct. at 953-54 (Black, J., concurring). The jury was specifically instructed that it could base liability only on defendants’ conduct, not the content of their antiabortion message. See Court’s Charge to the Jury at 7-8. The Court must presume that the jurors followed this instruction. Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Stine v. Marathon Oil Co., 976 F.2d 254, 267 (5th Cir.1992).

The Court concludes that the jury imposed liability based on the form of defendants’ communication, not because they disagreed with their message. See Clark, 104 S.Ct. at 3070. The verdict therefore was content-neutral.

2. Narrow Tailoring

The imposition of tort liability must be narrowly tailored to serve an important government interest. It is clear that the torts of intentional infliction of emotional distress and invasion of privacy serve important state interests. The Court further finds that, properly limited to specific forms of proscribed conduct, these torts can be narrowly tailored to further those interests.

a.

The first issue is whether these common law torts further significant government interests. Clearly they do. States have both “the power and duty ... to ■ take adequate steps to preserve the peace and protect the privacy, the lives, and the property of [their] residents.” Carlson v. California, 310 U.S. 106, 113, 60 S.Ct. 746, 749, 84 L.Ed. 1104 (1940). The Supreme Court has consistently recognized a substantial government interest in protecting individual privacy. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975) (describing privacy as an interest “plainly rooted in the traditions and significant concerns of our society”); Rowan,