Amicus Curiae Brief — Woodall v. Reno

Supreme Court, U.S.

Kk ILE D

MAR 2 3 1999

OFFICE Ui trie ULens

~~

No. 94-1417

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

JOYCE WOODALL AND CONCERNED WOMEN FOR AMERICA, INC.

Petitioners,

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES AND UNITED STATES OF AMERICA.

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

AMICUS CURIAE BRIEF OF THE AMERICAN CENTER

FOR LAW AND JUSTICE IN SUPPORT OF

THE PETITION FOR A WRIT OF CERTIORARI

KEITH A. FOURNIER

The American Center for

Law & Justice

1000 Regent Univ. Drive

Virginia Beach, VA 23467

(804) 579-2489

* Counsel of Record

THOMAS P. MONAGHAN

The American Center for

Law & Justice

6375 New Hope Road

New Hope, KY 40052

(502) 549-7020

JAMES M. HENDERSON, SR.*

The American Center for

Law & Justice

1000 Thos. Jefferson St.

Suite 520

Washington, DC 20007

(202) 337-2273

Attorneys for Amicus Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

EARLE OF AUTIOOITIO ooioig.o oc covcncsecccceccs he ii

SSeS OW SHAME io sui cine cee ke. Se l

REASONS FOR GRANTING THE WRIT ................ 3

I. FACE REGULATES SPEECH AND EXPRESSIVE

CONDUCT ACCORDING TO VIEWPOINT AND

atl ial ME ETL Stee Ey ings fy ar ae 4

A. FACE's_ Selective Prohibitions On

Abortion Protest Are Unconstitutional ..... 6

B. FACE Chills Protected pS ee ae 9

it FACE is an Unconstitutional Content-Based

Restriction on Expression ............... 10

D. FACE Lumps "Elements of Majesty" and

“Elements of Criminality" in a Single

Prohibition On Anti-abortion Activism,

Ignoring this Court's Teaching In NAACP

v. Claiborne Hardware Co. ............. 12

Il. FACE IS UNCONSTITUTIONALLY VAGUE ...... 15

se igh is duane eee ETT Pore oe ae 19

(1)

TABLE OF AUTHORITIES

Page(s)

Cases

Boos v. Barry, 485 U.S. 312 (1988) ................. 11, 12

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............. 10

Bray v. Alexandria Women's Health Clinic,

Se Mee PO CRE es ccidadddss eeesbebebdbaaneee 2

Cameron v. Johnson, 390 U.S. 611 (1968).............. 19

Carey v. Brown, 447 U.S. 453 (iGGG) cccciccscccecccesecs 8

City of Houston v. Hill, 482 U.S. 451 (1987) ............ 16

Coates v. Cincinnati, 402 U.S. 611 (1971).............. 19

Consolidated Edison v. Public Serv. Comm'n,

SOT US Fre Cee 64.0 604 ks tee eae ok ce bbantinss 8

FCC v. League of Women Voters of California,

G65 US, DOO ETH inn baka dedcdasbadtb aes buves ce ctce 8

Forsyth County, Ga. v. Nationalist Movement,

SES DAS. a CHES ence seheaebetckamieodedesinks 11

Frisby v. Shultz, 487 U.S. 474 (1988) ............0.ee eee 8

Gooding v. Wilson, 405 U.S. 518 (1972) ............ 16, 19

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...... 16

Hoffman v. Hunt, No. 3:93CV393-P

(W.D.N.C. proceedings stayed Nov. 29, 1994) ....... 3

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ....... 10

Kovacs v. Cooper, 336 U.S. 921 (1949) ................ 17

Leathers v. Medlock, 499 U.S. 439 (1991) ................ 7

Madsen v. Women's Health Center, Inc.,

56 Ds ree Cae bvvis 18k40kuednsacaes 3

Members of the City Council v. Taxpayers for Vincent,

GER UG As Fe EEO in 0 vhdakvddnasskeceebuaweetiin 7

Milwaukee Women's Medical Services, Inc. v. Brock, 3

No. 94-C-0793 (E.D. Wis. filed July 18, 1994) ....... 3

NAACP v. Button, 371 U.S. 415 (1963) .............4.2.. 16

(ii)

TABLE OF AUTHORITIES—CONT'D

Page(s)

NAACP v. Claiborne Hardware Co.,

Aepes SP TUUMED von iccvcnccccccncce 10, 12, passim

National Organization for Women v. Joseph Scheidler,

Ne Ds occa cia cccdvacasceccbvccese- 2

Organization for a Better Austin vy. Keefe,

OE PRM OEP ED ou cocoa hed vesacinecinvaseeces 10

Planned Parenthood of Southeastern Pennsylvania vy.

re Se ee) 4

R.A.V. v. City of St. Paul, 120 L.Ed.2d 305 (1992) 6, passim

Reily v. Reno, 860 F. Supp. 693 (D. Ariz. oe ee 3

dye eR REDE Fe) | 1-2

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 112 S.Ct. 501 eee 10

Spence v. Washington, 418 U.S. 405 (1974) .............. 9

Terminiello v. City of Chicago, 337 U.S. | (1949) bape wiies 9

Terry v. Reno, No. 94-1154(HIIG)

(D.D.C. filed May 26, 1994) ...............ccec0e... 3

Texas v. Johnson, 491 U.S. 397 i. 8,9, 11,12

Tinker v. Des Moines Indep. Community Sch. Dist.,

EE 9,10

United States v. Lopez, Docket No. 93-1260 ......... 19, 20

United States v. O'Brien, 391 U.S. 367 Gees 8

Village of Hoffman Estates v. Flipside, Hoffman Estates,

SI OE cnc cscesnsscccuccsncenccecuce, 16

Ward v. Rock Against Racism, 491 U.S. 781 i) aaa 7-8

Zwickler v. Koota, 389 U.S. 241 (1967) ................ 16

iV

TABLE OF AUTHORITIES—CONT'D

Page(s)

Constitutional Provisions, Statutes, Rules

Sc es IS 8 x0 na xadeubeciadeccdxwensaaas passim

Title 18 U.S.C. § 248 ("The Freedom of Access to Clinic

OG TO io oct xdnndesdeseaeinteii sree passim

Other Authorities

Hearings Before the Subcomm. on Crime and Justice of

the House Comm. on the Judiciary, 103rd Cong., Ist

ee SD, | Pe errr pest Teen D 4

INAUGURALADDRESSES OF THE PRESIDENTS OF THEUNITED

STATES OF AMERICA FROM GEORGE WASHINGTON

1789 TO GEORGE BUSH 1989 (Bicentennial Ed.

SP enna eae yee yee: Repeone heen 2

THE PORTABLE ABRAHAM LINCOLN (A. Delbanco ed.

PRED Vcsku cad nuesieceeunsinks (actbisaGasonus isan 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1417

JOYCE WOODALL AND

CONCERNED WOMEN FOR AMERICA, INC.,

Petitioners,

Vv.

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES,

AND UNITED STATES OF AMERICA,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE AMERICAN CENTER FOR

LAW & JUSTICE IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

INTEREST OF THE AMICUS’

The American Center for Law and Justice is a nonprofit

corporation. The ACLJ provides educational materials on

matters related to religious liberties, civil rights and the

interests of families in America. The ACLJ also provides

litigation services in selected cases of concern in the area of

religious liberty, the right to life and the interests of families.

A key area of concern for the ACLJ is the problem of

legitimized, legalized abortion in America. When this Court

announced Roe v. Wade, 410 U.S. 113 (1973), it could not put

either opposition to abortion services or Opposition to the

"legitimization" or "legalization" of abortion beyond the pale

* The parties have indicated their consent to the filing of this brief

by letters filed herewith.

2

of public debate and discussion. The ACLJ is confident that

this Court never considered that Roe served to utterly and

finally settle matters of national policy regarding abortion!

Much of the litigation in which the ACLJ has been, or now is,

involved, however, reflects the obvious, mistaken belief that

the right to freedom of speech does not accord its fulsome

protections to those who advocate on behalf of unborn

children. Consequently, the ACLJ experiences no poverty of

clients whose public oral and written advocacy for the lives of

unborn children have been wrongly limited by private parties

and government agencies.

ACLJ attorneys have represented participants in many

legal skirmishes resulting from nonviolent protests against

abortion businesses and against the continued legality of

abortion, including Bray v. Alexandria Women's Health Clinic,

122 L.Ed.2d 34 (1992), and National Organization for Women

v. Joseph Scheidler, 127 L.Ed.2d 99 (1994). The ACLJ

currently represents several parties in facial challenges to the

Freedom of Access to Clinic Entrances Act (hereafter,

1 Certainly, the candid jurist

must confess that if the policy of the government, upon vital

questions, affecting the whole people, is to be irrevocably fixed

by decisions of the Supreme Court, the instant they are made, in

ordinary litigation between parties, in personal actions, the

people will have ceased, to be their own rulers, having, to that

extent, practically resigned their government, into the hands of

that eminent tribunal.

Inaugural Address by Abraham Lincoln (March 4, 1861) INAUGURAL

ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES OF AMERICA

FROM GEORGE WASHINGTON 1789 TO GEORGE BUSH 1989 at 139

(Bicentennial Ed. 1989) (emphasis added).

PLAID ALE AREER ADL ty RAAB

3

"FACE") and is defending others who have been targetted

with civil suits under FACE?

REASONS FOR GRANTING THE WRIT

An entire spectrum of protected speech activities can be

interpreted by thin-skinned individuals, or political opponents,

as "threatening" or "intimidating" under FACE. In an amicus

brief submitted to this Court by the United Statesin the case of

Madsen v. Women's Health Center, Inc., 114 S.Ct. 2516

(1994), the Solicitor General argued that sign displays near

abortion facilities could be prohibited, Brief Amicus Curiae of

the United States at 25,‘ that literature distribution in front of

abortion facilities could be prohibited unless prior consent was

received, DOJ Amicus at 24, and that a neighborhood could be

cordoned off from First Amendmentactivities simply because

an abortion business employee resides there. DOJ Amicus at

19, 25. Despite the miserly approach of the Department of

Justice in Madsen, this Court found those prohibitions to be

unconstitutional abridgements of free speech.

Here, however, the Fourth Circuit failed to account for the

ponderous burden that FACE inflicts on protected, but

ominous, expression. For that reason, this Court should grant

the petition for a writ of certiorari.

2 Terry v. Reno, No. 94-1154(HIIG) (D.D.C. filed May 26, 1994):

Hoffman v. Hunt, No. 3:93CV393-P (W.D.N.C. proceedings stayed

Nov. 29, 1994); Reily v. Reno, 860 F. Supp. 693 (D. Ariz. 1994).

3 Milwaukee Women's Medical Services, Inc. v. Brock, No. 94-C-

0793 (E.D. Wis. filed July 18, 1994).

4 Hereafter that brief is referred to as "DOJ Amicus."

4

I. FACE REGULATES SPEECH AND EXPRESSIVE

CONDUCT ACCORDING TO VIEWPOINT AND

CONTENT

Diogenes would extinguish his lamp if either the

Department of Justice or the Fourth Circuit below would

simply acknowledge that Congress passed FACE and the

President signed it in a direct effort to suppress one protest

movement, the anti-abortion movement. Representative

Sensenbrenner said:

I fear that the bill that has been reported from the

subcommittee tramples on first amendment rights of

protesters. The first amendment was not designed to

protect politically correct speech, and the reason I feel this

very, very strongly is that if during the 1960's, we had

legislation like this that took a specific side on a specific

issue, there may not have been a civil rights revolution in

this country. The reason this bill is so constitutionally

suspect is that it singles out people who are on one side of

abortion and attempts to restrict their free speech. If it

were an across-the-board prohibition of certain types of

activity, there would not be constitutional problems with

it.

Hearings Before the Subcomm. on Crime and Justice of the

House Comm. on the Judiciary, 103rd Cong., Ist Sess. 5 (June

10, 1993).

But, if the congressman was correct, FACE protects an

abortion liberty this Court trampled on recently, when it

stated that the abortion liberty is a "woman's right to make

the ultimate decision, not a right to be insulated from all

others in doing so." Planned Parenthood of Southeastern

Pennsylvania v. Casey, 112 S. Ct. 2791, 2821 (1992) (joint

opinion) (emphasis added). The chilling impact on anti-

abortion rhetoric seems a deliberate result of the enactment

of FACE, but whether intended or not, the impact certainly

was a predictable aspect of the struggle between two strongly

conflicted political perspectives on the right to abort unborn

babies.°

5 President Lincoln certainly expected that the seemingly

intractable conflict between the pro-freedom and pro-slavery forces

would lead to pressure to silence anti-slavery sentiments:

The question recurs, what will satisfy them? Simply this: We

must not only let them alone, but we must, somehow, convince

them that we do let them alone. This, we know by experience, is

no easy task. ... [NJatural, and apparently adequate means all

failing, what will convince them? This, and this only: cease to

call slavery wrong, and join them in caliing it right. And this

must be done thoroughly—done in acts as well as in words.

Silence will not be tolerated—we must place ourselves avowedly

with them. Senator Douglas's new sedition law must be enacted

and enforced, suppressing all declarations that slavery is wrong,

whether made in politics, in presses, in pulpits, or in private. . .

The whole atmosphere must be disinfected from all taint of

opposition to slavery, before they will cease to believe that all

their troubles proceed from us. ... Holding, as they do, that

slavery is morally right, and socially elevating, they cannotcease

to demand a full national recognition of it, as a legal right, and a

social blessing.

Address by Abraham Lincoln to the Cooper Institute of New York

(Feb. 27, 1860) (reprinted in THE PORTABLE ABRAHAM LINCOLN at

167, 184-86 (A. Delbanco ed. 1992). FACE is simply Senator

Douglas’ sedition law dressed up in new, pro-abortion rhetoric.

6

A. FACE's Selective Prohibitions On Abortion

Protest Are Unconstitutional

In R.A.V. v. City of St. Paul, 120 L.Ed.2d 305 (1992),

this Court found a strikingly similar kind of speech restriction

unconstitutional. The City of St. Paul enacted a "hate crimes"

ordinance punishing conduct that aroused “anger, alarm or

resentment in others." R.A.V. was prosecuted under the

ordinance for burning a cross on the lawn of an African-

American family. 120 L.Ed.2d at 315. Holding the

ordinance unconstitutional, this Court stated, the "First

Amendment does not permit St. Paul to impose special

prohibitions on those speakers who express views on

disfavored subjects.” 120 L.Ed.2d at 323. But that precise

approach is embodied in FACE, which selectively targets

anti-abortion activity at abortion facilities.

Some would argue, we think disengenuously, that FACE

does not select out certain "bad" motivations for punishment.

The lie is put to such assertions with a simple illustration,

involving a multi-tenant medical center with three entrances.

At one entrance, animal rights activists are blocking the door

to halt mistreatment of laboratory animals at a research lab

inside the center. At a second entrance, labor union members

are holding a sit-down strike blocking the door to protest unfair

wages for maintenance workers in the center. At a third

entrance, anti-abortion activists are conducting a "sit-in" to

protest abortions at a business inside the center. Obviously,

FACE punishes only the anti-abortion activists at the third

entrance.

Obviously, the restrictions that operate near reproductive

health facilities in FACE apply only to those motivated by

opposition to abortion. Title 18 § 248(a)(1). That selection and

punishment, based alone on viewpoint, contradicts this Court's

7

holding in R.A.V. Rejecting just such categorical restrictions

on speech, this Court has said:

Selectivity of this sort creates the possibility that the city

is seeking to handicap the expression of particular ideas.

That possibility would alone be enough to render the

ordinance presumptively invalid, but St. Paul's comments

and concessions in this case elevate the possibility to a

certainty.

120 L.Ed.2d at 325 (emphasis added).

Because FACE affects only those motivated by opposition

to abortion, all justifications for its constitutionality are

suspect. The “danger of censorship" it presents, Leathers v.

Medlock, 499 U.S. 439, 447 (1991), requires that it be

employed only where it is "necessary to serve the asserted

compelling interest." R.A.V., 120 L.Ed.2d at 326 (internal

quotation marks and brackets omitted).

FACE "imposes special prohibitions on those speakers

who express views on disfavored subjects" and on the basis

of “hostility -- or favoritism -- towards the underlying

message." That approach is unconstitutional. R.A.V., 112

S.Ct. at 2547-2549. See also Members of the City Council v.

Taxpayers for Vincent, 466 U.S. 789, 804 (1984) ("the First

Amendment forbids the government to regulate speech in

ways that favor some viewpoints or ideas at the expense of

others") (see cases cited).

The Fourth Circuit ignored a key distinction between a

content-based law and a facially neutral law: particularized

hostility to a certain viewpoint. In doing so, the Fourth

Circuit disobeyed this Court's instruction, in Ward v. Rock

8

Against Racism, 491 U.S. 781 (1981), that a time, place, or

manner restriction can only be "justified without reference to

the content of the speech." /d. at 791 (internal quotation

marks omitted). Thus, FACE, by definition, is not a

reasonable time, place, or manner restriction because it only

applies to a specific form of expression - abortion protest.°

Nonverbal expressive activities can be banned, but not

because of ideas expressed. Texas v. Johnson, 491 U.S. 397,

406-07 (1989); United States v. O'Brien, 391 U.S. 367, 376-

77 (1968). FACE regulates speech based on hostility - or

favoritism - towards the underlying expression. Compare

Frisby v. Shultz, 487 U.S. 474 (1988) (upholding, against a

facial challenge, a content-neutral ban on targeted residential

picketing) with Carey v. Brown, 447 U.S. 455 (1980)

(invalidating a ban on residential picketing that exempted

labor picketing). The rationale barring content-prohibition is

that it “rais[es] the specter that Government may effectively

drive certain ideas or viewpoints from the marketplace." FCC

v. League of Women Voters of California, 468 U.S. 364, 383-

84 (1984); Consolidated Edison v. Public Serv. Comm'n, 447

U.S. at 530, 536 (1980).

The central focus of FACE is abortion protest outside of

abortion facilities. At its essence, FACE (like the statute in

R.A.V.) is unconstitutional because it targets one type of

speech. By making protest against abortion a federal crime,

Congress displayed an unconstitutional bias against a

particular protest movement. "[T]he only interest distinctively

served by the content limitation is that of displaying the city

council's special hostility towards the particular biases thus

singled out. That is precisely what the First Amendment

6 Church protest is also prohibited under FACE.

9

forbids." 120 L.Ed.2d at 326. Certainly, Congress had

"sufficient means at its disposal to prevent such behavior

without adding the First Amendment to the fire." Id.

B. FACE Chills Protected Speech

This Court has long recognized that the protection of free

speech "does not end at the spoken or written word."

Johnson, 491 U.S. at 404. The Constitution protects any

conduct that may be "sufficiently imbued with elements of

communication to fall within the scope of the First and

Fourteenth Amendments." Spence v. Washington, 418 U.S.

405, 409 (1974). E.g., Johnson, supra, (First Amendment

precludes prosecution for burning an American flag); Tinker

v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503,

505 (1969) (students' wearing of black armbands to protest

American military involvement in Vietnam constituted

protected speech); R.A.V., 112 S.Ct. at 2547 (cross burning

is symbolic expression protected by the First Amendment).

The First Amendment also protects public statements on

political and social issues that are vitriolic, coercive, and

intimidating. It has been long held that:

[A] function of free speech under our system of

government is to invite dispute. It may indeed best serve

its high purpose when it induces a condition of unrest,

creates dissatisfaction with conditions as they are, or

even stirs people to anger. Speech is often provocative

and challenging. It may strike at prejudices and

preconceptions and have profound unsettling effects as it

presses for acceptance of an idea.

Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). Speech

10

that is "intended to exercise a coercive impact" and is

"offensive to others” still enjoys full constitutional protection.

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419

(1971). Indeed, intimidating political expression is

constitutionally protected speech. NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982).’ Moreover, if

inflammatory, anti-abortion rhetoric offends and is

emotionally unsettling, "that consequence is a reason for

according it constitutional protection.” Simon & Schuster,

Inc. v. Members of New York State Crime Victims Bd., 112

S.Ct. 501, 508 (1991); Hustler Magazine v. Falwell, 485

U.S. 46, 55 (1988).

FACE creates an irrebutable presumption that anti-

abortion speech outside abortion facilities can be chilled and

even punished. Such an approach is contrary to this Court's

decisions. The Fourth Circuit's conclusion to the contrary

was error and this Court should grant the petition so that it

may review and reverse that error.

C. FACE is an_ Unconstitutional Content-Based

Restriction on Expression

FACE prohibits threatening conduct that is intended to

intimidate or interfere with persons seeking to obtain or

provide reproductive health services. See Title 18 U.S.C. §

7 As this Court stated over twenty years ago, “undifferentiated fear

or apprehension of disturbance" cannot justify suppressing the right

to freedom of expression." Tinker, 393 U.S. at 505. With Tinker's

"undifferentiated fear" contrast advocacy unprotected because it

"directed to inciting or producing imminent lawless action” and it is

"likely to incite or produce such action....". Brandenburg v. Ohio, 395

U.S. 444, 447 (1969).

ih tat ti dadin ait ide

bf

11

248(a). As used in FACE, “reproductive health services" is

simply a euphemism for "abortion services." See Title 18

U.S.C § 248(e)(5) (defining "reproductive health services").

FACE accomplishes its goal by criminalizing all expressive

conduct that constitutes a "threat of force” that "intentionally

... intimidates ... or attempts to ... intimidate ... any person

. obtaining or providing reproductive health services"

(abortions). Title 18 U.S.C. § 248(a)(1). FACE defines

"intimidate" as, "to place a person in reasonable apprehension

of bodily harm to him- or herself or to another." Title 18

U.S.C. § 248(e)(3).

Thus, FACE criminalizes anti-abortion "threats" if they

"intimidate" by placing any other persons (not necessarily

themselves) in “reasonable apprehension" of harm to

someone. Whether FACE renders anti-abortion speech

criminal, therefore, depends on the likely communicative

impact of the words on the recipient. Such a restriction on

speech is mot content neutral, and is_ therefore

unconstitutional, when it is based on the impact of the

communication on its audience. See, e.g., Forsyth County,

Ga. v. Nationalist Movement, 112 S.Ct. 2395, 2403 (1992)

("Listeners' reaction to speech is not a content neutral basis

for regulation"); Johnson, 491 U.S. at 412; Boos v. Barry,

485 U.S. 312, 321 (1988).

FACE is a direct restriction on anti-abortion speech that

"intimidates" by creating a subjective “reasonable

apprehension" of "bodily harm" to someone. Because FACE

turns on the "emotive impact of speech on its audience,"

which directly relates "to the content of the expression itself,"

it is unconstitutional. Johnson, 491 U.S. at 411. In Boos,

this Court held that the need to protect the dignity of foreign

diplomats by shielding them from critical speech would not

justify an ordinance prohibiting sign displays within 500 feet

12

of a foreign embassy if the sign tended to bring the foreign

government into "public odium” or "public disagreement.”

485 U.S. at 315, 321 (plurality opinion). Boos held that a

law was not content neutral because it focused on the content

of the speech and its impact on auditors. Jd. at 320-21, 334-

35. Then, in Johnson, this Court struck down a conviction

arising from a flag burning. 491 U.S. at 420. The

demonstrator was convicted under a statute that prohibited the

desecration of the national flag. Jd. at400n.1. This Court

concluded that the statute was content-based because the

application of the law depended on the "likely communicative

impact” of the expressive conduct. /d. at 411.

The ban on “intimidating” with "threats" that create a

"reasonable apprehension" turns on the communicative and

emotive impact of speech on its recipient. Thus, under

Johnson and Boos, FACE's ban on such communications is

related to the suppression of unwanted “intimidating”

expression. FACE relies on the reaction and perception of

viewers and listeners to speech as an inherent aspect of the

law. For this reason, it is unconstitutional. Jd.

D. FACE Lumps "Elements of Majesty" and "Elements of

Criminality" in a Single Prohibition On Anti-abortion

Activism, Ignoring this Court's Teaching In NAACP y.

Claiborne Hardware Co.

"{T]he mere advocacy of use of force or violence does

not remove speech from the protection of the First

Amendment." Claiborne Hardware, 458 U.S. at 927. In

Claiborne Hardware, this Court applied these principles to

specific expressive conduct that would be banned under

FACE. Claiborne Hardware involved an emotional and

sometimes violent boycott of white-owned businesses in

ree

13

Mississippi in 1966, led by the NAACP. The boycott was

intended to force "political, social, and economic change."

458 U.S. at 911. Charles Evers was the leading figure in the

boycott. In his speeches, Evers "told his audience that they

would be watched and that blacks who traded with white

merchants would be answerable to him . . . [and] that any

“uncle toms’ who broke the boycott would have their necks

broken by their own people.” Jd. at 900 n.28 (emphasis in

original).*

Although the "First Amendment does not protect

violence," id. at 916, this Court held that Evers’ intimidating

harangues and the frightful and ominous behavior of the

"black hats" were protected by the First Amendment. To

support its holding that such public utterances were protected,

id. at 921, this Court analyzed the Claiborne injunction ina

manner which ought to be used in reviewing FACE. The

Court reaffirmed that "[s]peech does not lose its protected

8 Evers also threatened: "If we catch any of you going to any of

them racist stores, we're gonna break your damn neck'." Jd. at 902.

These threats were combined with the placement of "store watchers"

known as "Black Hats" who “stood outside the boycotted stores and

identified those who traded with the [white] merchants.” /d. at 903.

There were numerous violent incidents that occurred to persons who

ignored the boycott. “In two cases, shots were fired at a house; in

a third, a brick was thrown through a windshield; in the fourth, a

flower garden was damaged." Jd. at 904. A “black couple,” after

shopping in a “white-owned dry cleaner,” had “shots fired into their

home.” /d. at 905. A black “commercial fisherman who did not

observe the boycott" was "grabbed" by "four men" and was “beat .

. up.” Id. A “group of young blacks apparently pulled down the

overalls of an elderly brick mason known as “Preacher White’ and

spanked him for not observing the boycott." Jd. at 905; see also 458

U.S. at 905 n.37.

14

character ... simply because it may ... coerce ... [others]

into action." /d. at910. Rather, "‘offensive' and “coercive'

speech [is] ... protected by the First Amendment...." Jd. at

911. “[L]anguage in the political arena, like the language in

labor disputes ... is often vituperative, abusive, and inexact."

Id. at 911 n.46.

This Court directly addressed the "acts of violence [that

had] occurred,” stating that "violence has no sanctuary in the

First Amendment[,]" id. at 916, but then noted, "[w]hen such

conduct occurs in the context of constitutionally protected

activity ... ‘precision of regulation’ is demanded." 7d.

(citations omitted). "[T]he presence of activity protected by

the First Amendment imposes restraints" on the ability of

government to sanction it. Jd.

This Court acknowledged that Evers' speeches were

threatening, and that the First Amendment would not protect

such expression if it was "likely to incite lawless action" or

if "the speeches might be taken as evidence that Evers gave

other specific instructions to carry out violent acts or

threats." /d. at 927. It was undeniable that Evers had

menaced boycott violators, and that his speeches "might have

been understood as inviting an unlawful form of discipline or

... aS intending to create a fear of violence.” Jd.

Nevertheless, this Court held that the threats did not

constitute Brandenburg “incitement;" the intimidating threats

of bodily harm were not "directed to inciting or producing

imminent lawless action" and were not "likely to incite or

produce such action." Jd. at 928 (citation omitted). This

Court stated, "mere advocacy of the use of force or violence

does not remove speech from the protection of the First

Amendment." /d. at 926. "“Evers' speeches did not transcend

15

the bounds of protected speech set forth in Brandenburg." Jd.

at 928.

The crucial missing element necessary to reach

"incitement" was temporal proximity between the acts of

violence and Evers' speeches. "If that language had been

followed by acts of violence, a substantial question would be

presented whether Evers could be held liable for the

consequences of that unlawful conduct." Jd. at 928. But

"(t]he acts of violence . . . occurred weeks or months after

the April 1, 1966, speech." id. When threats of violence "do

not incite lawless action, they must be regarded as protected

speech." /d.

This is the glaring constitutional defect in FACE. It

criminalizes a variety of "threats" to do “bodily harm"

without regard to whether such threats "incite" or even cause

the harm. In fact, it punishes mere threats that place a

“person in reasonable apprehension of bodily harm" in the

complete absence of such harm.

In Claiborne Hardware, because there was no evidence --

beyond the mere threats in his speeches -- that Evers was

personally involved in any of the violent conduct, his

speeches could not be taken as specific evidence in the

carrying out of violence. Jd. at 929. Yet, Evers’ threatening

and intimidating speeches would have plainly violated the

prohibitions of FACE. For this reason, FACE cannot be

squared constitutionally with the First Amendment. The

Fourth Circuit's decision below failed to account for the

inherent conflict between Claiborne Hardware and FACE.

Il. FACE IS UNCONSTITUTIONALLY VAGUE

FACE is unconstitutionally vague. "First Amendment

16

freedoms need breathing space to survive." NAACP v. Button,

371 U.S. 415, 433 (1963). Asa result, "the First Amendment

recognizes that a certain amount of expressive disorder not

only is inevitable in a society committed to individual freedom,

but must itself be protected if that freedom would survive.”

City of Houston v. Hill, 482 U.S. 451, 472 (1987). A statute is

unconstitutionally vague where its terms are "so vague that

[persons] of common intelligence must necessarily guess at its

meaning and differ as to its application... ." Zwickler v.

Koota, 389 U.S. 241, 249 (1967) (original quotation marks

omitted).

This Court has emphasized that an especially stringent

standard must be applied to laws touching on First Amendment

freedoms. Village of Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 499 (1982); Grayned v. City of

Rockford, 408 U.S. 104, 108-110 (1972). Vagueness is a vice

in First Amendment contexts because, when one cannot be

certain whether or not his conduct is prohibited by a statute,

there is exerted a powerful chilling effect on a wide range of

protected First Amendment activity. FACE leads “persons

whose expression is constitutionally protected" to "refrain

from exercising their rights for fear of criminal sanctions

provided by a statute susceptible of application to protected

expression." Gooding v. Wilson, 405 U.S. 518, 521 (1972).

FACE works a multiplication of injuries through vagueness.

"Force or Threat of Force" See Title 18 U.S.C. § 248(a).

Does this phrase include a nonviolent "sit-in?" Ifa protestor

insists on calling an abortion provider a murderer, is that use

of "force or threat of force"? What of the street evangelist who

warns an abortion businessman that his participation in

abortion services will cause him to go to Hell?

"Physical Obstruction" See Title 18 U.S.C. §§ 248(a)

17

and 248(e)(4). What does it mean to render passage to or from

a facility “unreasonably difficult?" Title 18 U.S.C. §

248(e)(4). Is it "unreasonably difficult" to walk past a picket

line of smiling, nonviolent protestors? Is it "unreasonably

difficult" to have to walk around a persistent sidewalk

counselor? Perhaps having to step over people engaged in a

“sit-in” is "unreasonably difficult?”

"Injures" Title 18 U.S.C. § 248(a) refers to "injures" but

§ 248(b) refers to "bodily injury." Therefore, the verb

"injures" standing alone apparently includes causing other,

non-bodily injuries. Does this include any legal injury?

Financial harm? Emotional distress? Injury to constitutional

rights?

"Intimidates" The phrase “reasonable apprehension of

bodily harm to him- or herself or to another" opens up a range

of possible meanings. See Title 18 U.S.C. § 248(e)(3). Does

the "harm" have to be proximately caused by the FACE

defendant, as in a physical battery? Or are potential medical

complications enough? Can an abortion facility employee

claim “reasonable apprehension" that picketers might deter a

woman who "needs" an abortion for medical reasons? Are the

potential complications of childbirth "bodily harm" that

abortion advocates may "reasonably apprehend" from any anti-

abortion activities whatsoever outside an abortion facility?

Does harm to anti-abortion protestors count? Does

"intimidation" include the anti-abortion activist who locks

himself by the neck to a concrete block, causing abortion

9 This Court has held that the Constitution affords persons the

opportunity to win the attention of the listener. Kovacs v. Cooper, 336

U.S. 921 (1949). If "physical obstruction" means merely being forced

to walk around a pro-life leafletter, it is plainly unconstitutional.

18

facility agents to "apprehend bodily harm" to the anti-abortion

activist?

"Interfere With" FACE defines this term as "restrict[ing]

a person's freedom of movement." Title 18 U.S.C. § 248(e)(2).

But by merely existing and occupying space, everyone

necessarily "restricts the freedom of movement" of everyone

else by diminishing the space available for movement. While

a literal interpretation of this text is clearly absurd, where is

the line to be drawn? Does "interference" include standing in

someone's way? Standing in the middle of a sidewalk?

Standing anywhere on a sidewalk? Taking part in a group

gathering or picket line that forces persons to walk around it?

The pervasive ambiguity of these statutory terms is not

mere academics. Rather, FACE's vagueness has considerable

practical significance. Those who wish to distribute literature

or speak with passersby about abortion alternatives must actat

their peril when present near abortion businesses. Indeed, this

problem is multiplied by the sheer enormity of the penalties

attached to guessing wrongly -- up to six months in prison for

a single nonviolent violation and eighteen months for second

or subsequent nonviolent offenses, to say nothing of civil

remedies and attorneys fees. Title 18 U.S.C. §§ 248(b) and

248(c).

Moreover, if "obstruction" represents a separate offense

for each person obstructed, the amount of possible prison time

becomes a function of the number of complaining abortion

facility patrons and employees. Given that a violation could

consist of entirely peaceful protest activity(and, except for the

prohibitions of FACE, entirely lawful activity), the chilling

effect on protected speech of such disproportionately severe

penalties cannot be understated. If ever there were a case

where "persons whose expression is constitutionally protected

19

. refrain[{ing] from exercising their rights [of freedom of

speech] for fear of criminal sanctions provided by a statute

susceptible of application to protected expression," this is me.

Gooding, 405 U.S. at 521.

We do not say that the First Amendment grants a right to

block free ingress and egress to and from a facility open to the

public. See Cameron v. Johnson, 390 U.S. 611 (1968). Rather,

the First Amendment requires great precision of regulation in

this area. See, e.g., Village of Hoffman Estates, 455 U.S. at

499. FACE lacks such precision.

Criminal statutes restricting speech that turn on the

reactions of others to unwanted speech, they are, as a matter of

law, unconstitutionally vague. Coates v. Cincinnati, 402 U.S.

611, 611-14 (1971). FACE, of course, is intended to protect

persons from threatening communications that are

"intimidating." Where the lawfulness of speech turns on the

reactions of others, the law is unconstitutionally vague. In

Coates, this Court struck down an ordinance making ita crime

for "three or more persons to ... conduct themselves in a

manner annoying to persons passing by ...." Coates, 402 U.S.

at 611. Like the defendants in Coates, anti-abortion speakers

will not know if they are subject to criminal liability until

others claim "intimidation" and "apprehension." Indeed,

advocates for unborn children will not know whether the

“apprehension” was legally "reasonable" until after they are

arrested and tried. When a statute that criminalizes speech

turns on such subjective and ad hoc determinations, it is

unconstitutionally vague. Grayned, 408 U.S. at 108-09.

CONCLUSION

This Court has granted review on certiorari in another

matter, United States v. Lopez, No. 93-1260, which addresses

20

the question of congressional authority under the Commerce

Clause. The Court should hold the petition in this case,

pending the outcome of Lopez, and then should grant the

petition, vacate the judgment below, and remand for further

consideration in light of Lopez. In the alternative, the Court

should grant the Petition for a Writ of Certiorari and set the

case for plenary review.

Respectfully submitted,

KEITH A. FOURNIER THOMAS P. MONAGHAN

The American Center for The American Center for

Law & Justice Law & Justice

1000 Regent Univ. Drive 6375 New Hope Road

Virginia Beach, VA 23467 New Hope, KY 40052

(804) 579-2489 (502) 549-7020

JAMES M. HENDERSON, SR.

Counsel of Record

The American Center for

Law & Justice

1000 Thos. Jefferson St.

Suite 520

Washington, DC 20007

(202) 337-2273

Attornevs for Amicus Curiae

March 23, 1995.