High Court: Operation Rescue Can't Sue Kennedy

The U.S. Supreme Court refused to revive a 1994 defamation suit filed against Senator Edward Kennedy by Operation Rescue in a ruling handed down late last month.

The group that stages non-violent protests in front of abortion clinics objected to charges Kennedy made during a videotaped news conference in Boston in November 1993.

The senator said, “People can have a difference on public policy issues, but when we have a national organization like Operation Rescue that has as a matter of national policy firebombing and even murder, that's unacceptable.”

Kennedy's statement about Operation Rescue was made at a time when Congress was debating the Freedom of Access to Clinic Entrances Act, which eventually was passed into law. This law made it a federal crime to block abortion clinic entrances or to threaten those entering the clinics.

Philip Lawler, the lead defendant in the case, said that he first demanded a retraction of the statement from Senator Kennedy. After “getting no answer whatsoever” from Kennedy, he joined with the aforementioned Operation Rescue leaders and pressed forward with the suit against the longtime Democratic senator from Massachusetts.

“When Ted Kennedy said that we advocate blowing up abortion mills and shooting abortionists, we were shocked at that because of our stance against violence,” said Rev. Flip Benham, director of Operation Rescue National, headquartered in Dallas. “The ends never justify the means in God's economy.”

Over the years, Operation Rescue has developed a reputation for civil disobedience, especially for blockading entrances to abortion clinics. Many of their members have been arrested at various abortion protests around the country. But there is no record of them planning or committing acts of physical violence against abortion clinics or their employees, and they do not condone those anti-abortionists who have resorted to violent forms of protest.

“I recognize that Operation Rescue is unpopular. But this is one of those cases where, if government officials can foreclose the legal rights of unpopular groups, they can gradually narrow everyone's legal rights,” explained Lawler, who is editor of Catholic World Report magazine.

The Constitution grants members of Congress immunity from lawsuits that may arise because of remarks made within the halls of Congress. The Operation Rescue plaintiffs and their legal staff believed that Kennedy could be sued because, as they stated in a letter to their supporters, “since Ted Kennedy was speaking as a candidate, not as a Senator, the law was on our side … and the constitution was on our side. The prospects for our case looked good.”

The lawsuit, originally filed in state court in 1994 by three leaders of Operation Rescue in Massachusetts — Lawler, Randall Terry, and Robert Jewitt — charged that Kennedy's remarks “showed actual malice,” and “falsely accused them of criminal conduct, and by doing so had hurt their reputations.” The Supreme Court upheld the ruling of several lower courts, who all agreed that Kennedy's remarks fell within the scope of his official duties, and therefore he could not be sued for his statement.

“Barely a month after we went to court, we learned that the U.S. Department of Justice had intervened to protect Ted Kennedy,” Lawler explained in the same letter. “The U.S. attorney had certified that when Ted made those stunning remarks, he had been acting as an officer of the federal government. So, the federal government stepped in as defendant in the case, in place of Kennedy. Suddenly, instead of suing one individual, we were facing the full power of the United States government.”

The lower courts that heard the case, most recently the 1st Circuit Court of Appeals, all concluded that Kennedy could not be sued for these remarks, delivered outside of the halls of Congress on a political fund-raising stop at a Boston hotel, because he was acting as an officer of the federal government at the time.

The Westfall Act of 1988 offers legal protection to federal officers and employees of the government's three branches for any actions considered part of their official duties.

Operation Rescue appealed these decisions all the way up to the Supreme Court, arguing that the Westfall Act was never intended to include members of Congress as federal employees eligible for this type of far-reaching legal protection. The Supreme Court's recent action upheld the lower court decisions without making any further comments about the case.

“In the legal appeals, the key question was whether or not we had the right to challenge Kennedy's statement in court,” Lawler told the Register. “The answer was no. We never even reached the point of challenging him to produce evidence to justify his defamatory statement. Of course there is no such evidence.”

“This decision does not bode well for the Christian community,” said Operation Rescue's Rev. Benham. “We see it more and more, trying to denigrate every Christian trying to stand for God's law. I would imagine in the next 10 years, we will see the persecution of Christians very blatantly.”

“There's a truly horrific precedent set in this case — a precedent which will almost certainly prompt another test case somewhere down the road,” Lawler warned. “As things now stand, if a member of Congress comes to town, holds a press conference, and calls you a killer, there's absolutely nothing you can do about it.

“Meanwhile, Senator Kennedy was quoted as saying he knew the case would go nowhere, since it was ‘frivolous.’ Now what, I ask, is frivolous? Is it frivolous to protest when accused of murder? Frivolous to ask that a senator be accountable for his public statements?”

Kennedy spokesman Jim Manley issued the following statement: “Senator Kennedy is glad that the matter has been resolved with the Supreme Court concluding that the 1st Circuit Court decision was correct.”

Molly Mulqueen writes from Colorado Springs, Colorado.