Petition for Writ of Certiorari — Shoback v. Pennsylvania, 136 S. Ct. 87 (2015) (No. 14-1425)

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FILE D

961425 MAR 10 1997

No. Obie eetiE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

RANDALL A. TERRY, REVEREND PATRICK MAHONEY, A.

DAVID HENDERSON, ROBERT JEWITT, JOSEPH J.

SLOVENEC, AND REVEREND JAMES L. RUDD,

- V,

Petitioners,

JANET RENO, ATTORNEY GENERAL OF THE UNITED

STATES, AND ERIC HOLDER, UNITED STATES ATTORNEY

FOR THE DISTRICT OF COLUMBIA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAY ALAN SEKULOW

Counsel of Record

JAMES M. HENDERSON, SR.

MARK N. TROOBNICK

WALTER M. WEBER

American Center for Law

& Justice

1000 Thos. Jefferson St. N.W.

Suite 609

Washington, DC 20007

(202) 337-2273

THOMAS P. MONAGHAN

FRANCIS J. MANION

The New Hope Life Center,

ACLJ-New Hope

6375 New Hope Road

New Hope, KY 40052

(502) 549-7020

JOHN G. STEPANOVICH

American Center for Law

& Justice

1000 Regent University Dr.

Virginia Beach, VA 23464

(757) 579-2489

Attorneys for Petitioners

QUESTIONS PRESENTED

1. Does the Freedom of Access to Clinic Entrances (FACE)

Act, 18 U.S.C. § 248, exceed the constitutional powers of

Congress under the Commerce Clause, U.S. Const. art I, § 8,

cl. 3?

2. Does FACE unconstitutionally discriminate against

opponents of abortion in violation of the First and Fifth

Amendments, U.S. Const. amends. I, V?

3. Does FACE violate the free speech and assembly

guarantees of the First Amendment, U.S. Const. amend. I?

PARTIES

The names of all the principal parties to the proceedings in

the court below appear in the caption of this case.’ In addition,

the following parties were granted status as intervenor-

defendants in the district court and filed a brief as intervenor-

appeliees in the court of appeals:

Capitol Women's Center

Commonwealth Women's Clinic

National Abortion Federation

National Organization for Women

Planned Parenthood Federation of America, Inc.

Planned Parenthood of Metropolitan

Washington, D.C.

Dr. George R. Tiller

Dr. Susan Wicklund

"None of the petitioners is a corporation. See Rule 29.6.

TABLE OF CONTENTS

CUES EEAIING PIRMSRAN EES fcc cc eee eeeees i

Ree eso a es POS NSD EE Ce iss li

TABLS OF AUTHORITIES .......05..5.2.5.-. pacer ee

I i 5 6 6 Uh ins | RRM ER TR Sew 8's ]

ARIST Ek apie oor ce ghar eae 2

CONSTITUTIONAL PROVISIONS AND

RN NS ahs a SS aa 6 4 Rew boo 2

Basements OF THE CASE oii ee eee: 2

REASONS FOR GRANTING THE WRIT ............ 4

I. THE PUBLIC HAS A STRONG INTEREST

IN RESOLVING THE CONSTITUTIONALITY

RR ie pea pO Gs ey vib v'g-p Glee 6 4

Il. THE DECISION BELOW CONFLICTS

WITH THIS COURT'S DECISION IN

UNITED STATES v. LOPEZ AND RAISES

IMPORTANT AND UNSETTLED QUESTIONS

OF CONSTITUTIONAL LAW .................. 8

A. FACE Represents a Drastic and

Unprecedented Expansion of

Congressional Authority under

the Commerce Clause, in Conflict

(RDF SN PC a Sa aC 8

1. Aggregation of commercial activities ........ 1]

2. Jurisdictional element .................... 12

2, Se OO NR kcke suc eaa pees 12

. FACE Imposes Discriminatory,

Vague, and Overbroad Restrictions

CR OE BIN 25k 15

1. First Amendment rights are implicated ....... 16

2. FACE is a viewpoint-based ban on

WIE ic i eee ie poe ee 18

3. FACE is unconstitutionally

vague and overbroad. ..... 2... eee 21

GE oS hee ine ORR ELA oa 22

Wy GOI Sahoo yCsaie Was Sey open eS 24

Seen IEE 5 5 CAA ANG Soa ON a a ees 26

APPENDICES:

A. Opinion, U.S. Court of Appeals for the

District of Columbia Circuit (Dec. 10,

OWE oak VOR eee Oe ROWE be ee la

B. Memorandum Opinion, U.S. District

Court for the District of Columbia

(RODV, Bi, COO) i One pened CeCe ican cs 24a

a Order, U.S. District Court for the

District of Columbia (Nov. 21, 1995) ......... 36a

Constitutional Provisions:

1. Commerce Clause, U.S. Const. art. I,

Ce rs 6k OF Vee es na 37a

| WN Be ae ee ocak Fee ees 37a

| ce. tg Tear aT Nore alearertpreNer Ren ance Whi Gee 37a

7 CN 6k a VA ee 37a

Freedom of Access to Clinic Entrances

(FACE), 18 U.S.C. § 248 (1994) ............ 38a

TABLE OF AUTHORITIES

Cases Page

American Life League, Inc. v. Reno, 47 F.3d 642

(4th Cir.), cert. denied, 116 S. Ct. 55 (1995) .......... 6

WE DR SI ak ich oe hak 25

Brandenburg v. Ohio, 395 U.S. 444 (1969) ........... 17

Carey v. Brown, 447 U.S. 455 (1980) ............... 20

Cheffer v. Reno, 55 F.3d 1517

CEIREC: SI ee ES a es ES 6

City of Boerne v. Flores, 117 S. Ct. 293 (1996)......... 5

City of Houston v. Hill, 482 U.S. 451 (1987) ...... 21, 25

C R li i a?

Federal Election Comm'n, 116 S. Ct. 2309

CRUE 6a ie a ee eo eke 5

Cook v. Reno, 859 F. Supp. 1008 (W.D. La.

1994), vacated, 74 F.3d 97 (Sth Cir. 1996),

on remand, No. 94-0980 (W.D. La. Nov.

FTO ok se WELR ee a ee ae 6

Council for Life Coalition v. Reno, 856 F. Supp.

S072 CER Re We ok eee Ses eee 6

Cruzan v. Director, Mo. Dep't of Health,

MT OB: BG EN 6 SSE RS a 6 a bs 20

Consortium, Inc. v. FCC, 116 S. Ct.

RRM Sin est a reRe oy 4

Felker v. Turpin, 116 S. Ct. 2333 (1996) .............. 4

Frisby v. Schultz, 487 U.S. 474 (1988) .............. 20

Hoffman v. Hunt, 923 F. Supp. 791

(W.D. N.C. 1996), appeal pending, Nos.

96-1581, 96-1582, 96-1623 (4th Cir.

PR 8d goss ed eRe 5

Hustler Magazine v. Falwell, 485 U.S. 46

SRNR oie cee ek irr pa nie ca Vf Ss RPE re Rae 17

Kovacs v, Cooper, 336 U.S. 77(1948) .............. 22

elv ter iches Union

Free School Dist., 508 U.S. 384 (1993) .......... 18, 20

Lee v. ISKCON, 505 U.S. 830(1992)............... 22

Lucero v. Trosch, 904 F. Supp. 1336 (S.D. Ala. 1995) .. 25

Marbury v. Madison, 5 U.S. (1 Cranch) 137

ES COS rae a eda cae ke eee be 9

NAACP vy. Button, 371 U.S. 415 (1963) ............. 21

NAACP v. Claiborne Hardware Co., 458 U.S.

MARE al ee a ne ee a a ew ables eS 17

New York v. Ferber, 458 U.S. 747 (1982) ............ 25

Caeeemention ties Hietiae Aneta Healt

GR TG. AES CSE) 3h a 0h Ne a, eee 16

Perez v. United States, 402 U.S. 146 (1971) ......... 9,10

Planned Parenthood Ass'n of Southeastern

Pennsylvania, Inc. v. Walton, 949 F. Supp.

PORT AI i sk sig Soe a co 6

PI { Parenthood of Columbia/Willi I

yv. American Coalition of Life Activists, 946 F.

SN. BSF tee, Gi SOE wc ae hes VA Sie a ts 6

Police Dep't v. Mosley, 408 U.S. 92 (1972) ........... 20

R.A.V. v. City of St. Paul, 505 U.S. 377

CESRAN 6 sds kek See a es ee 17, 18, 20, 21

Riely v. Reno, 860 F. Supp. 693 (D. Ariz.

SS sissies eis ORR, eR eet in eas 6

Russell v. United States, 471 U.S. 858

a.” SRE REURONPERSR POTTS OA ec Siero g) 0 ea TOR RCE 12

Schacht v. United States, 398 U.S. 58

RON irs BROS cea et ee 20

i, , IRRPRENRRE SR pap ieeS man meeps Mire ter ett 7 sen iste maT 16

Simon & Schuster, Inc. v. Members of New

York State Crime Victims Bd., 502 U.S. 105

CED ss 5 056 sens he ak es oi ee giee 17

Viii

nce V. i n, 418 U.S. 405 (1974) .......... 17

Terry v. Reno, No. 94-1154(HHG) (D.D.C.

Fe eda, Bs Wok Sh la ek a 3

Terry v. Reno, 101 F.3d 1412 (D.C.

SI ea era Be ee ee ee 1, passim

Texas v. Johnson, 491 U.S. 397 (1989) ........... 17, 20

Tinker v. Moine ; unity Sch.

Ses FOR a SAND Sie WRU Ba0Xk Sisk, 17

United States v. Bass, 404 U.S. 336 (1971) ........... 12

United States v. Dinwiddie, 76 F.3d 913 (8th Cir.

1996), cert. denied, 117 S. Ct. 613 (1996) ............ 6

United States v. Lopez, 115 S. Ct. 1624 (1995) . . . 3, passim

United States v. Scott, 919 F. Supp. 76 (D.

RR NR OO i alah Coe cu dakar ee hadad es 6

United States v. Soderna, 82 F.3d 1370

(7th Cir.), cert. denied, 117 S. Ct.

RRR lan SA rea ieee ae et aa Eee 6

United States v. White, 893 F. Supp. 1423

Fee SOE Set ae eee ea iS 6

United States v. Wilson, 880 F. Supp. 621

(E.D. Wis. 1995), rev'd, 73 F.3d 675

(7th Cir. 1995), cert. denied,

SET a ee eT SS fees tres ee NAG bee as 5

United States v. Wilson, 73 F.3d 675

(7th Cir. 1995), cert. denied, 117

ah Pe ie rc i a ot 5, 6, 12

United States v. Wrightwood Dairy Co.

edule cma Becigiis ‘cist. OTE ea oe LEO eee 10

Wickard v. Filburn, 317 U.S. 111 (1942) .......... 9, 10

Constitutions, Statutes, and Rules

et Sen Pee OO, i 3

Se Wn BOE Sooo) cw Fa 2, passim

URES EOE oi ha ae 9,11, 12, 14

OP Mn ELE & oss oy inc a ee 2

Sram. WA BOR Oe oe eins 2, passim

ma ME OS SS ee 2, passim

em. Cl wees, Va 2, 4, 15, 16, 20

Sn en A SS, Ss aes 2,9

eo. Ce eee Be ee 2, 16, 17, 20

Other Authorities

6 Am. Jur. 2d Assault and Battery § 3 (1963) ......... 23

S. Rep. No. 117, 103rd Cong. 1st Sess. 3

NE ox ee ketene ee eee 18

Comment, "FACE" ing the Facts: Does the

Freedom of Access to Clinic Entrances Act

Violate Freedom of Speech? 64 U. Cin. L. Rev.

II ko a i ree, 6

"Jackson Freed," USA Today, Feb. 12, 1997, Se epee

Kosinski, Introduction to Volume Nineteen,

19 Harv. j. L. & Pub. Poly 1,5 (1995) .............. 13

Note, About F.A.C.E. in the Supreme Court:

The Freedom of Access to Clinic Entrances Act

in Light of Lopez, 11 St. John's J. Legal

Re WUE CE iso ic aces bcciecienca 6

Note, "FACE"-ing the Constitution: The Battle

over the Freedom of Access to Clinic

Entrances Shifts from Reproductive Health

Facilities to the Federal Courts, 46 Cath.

Seis Ha DUE a ca CA a ae os ko ws den bs 6

Note, Freedom of Access to Clinic Entrances

Ac C.§ 248: Vv

the Remedy, 20 Seton Hall Legis. J. 128 (1996) ........ 6

Rose & Osborn, FACE-ial neutrality: A Free

Speech Challenge to the Freedom of Access

to Clinic Entrances Act, 81 Va. L. Rev. 1505

CREE eke ies 4S lees as Oe RRS he ee le oe 6, 7

—_ a ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

RANDALL A. TERRY, et al.,

Petitioners,

- Vv _

JANET RENO, Attorney General of the United States,

and ERIC HOLDER, United States Attorney

for the District of Columbia,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

DECISIONS BELOW

The decision of the court of appeals is reported as Terry v.

Reno, 101 F.3d 1412 (D.C. Cir. 1996) (App. A). The decision

of the district court is unreported. Terry v. Reno, No. 94-

1154(HHG) (D.D.C. Nov. 21, 1995) (App. B & C).

JURISDICTION

The United States Court of Appeals for the District of

Columbia Circuit entered its judgment in this case on December

10, 1996. This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

The text of the Commerce Clause of, and the First, Fifth and

Tenth Amendments to, the U.S. Constitution, are set forth in

Appendix D. The text of the Freedom of Access to Clinic

Entrances (FACE) statute, 18 U.S.C. § 248, is set forth in

Appendix E.

STATEMENT OF THE CASE

On May 26, 1994, President Clinton signed into law the

Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C.

§ 248. That same day, petitioners filed suit challenging the

constitutionality of FACE in the United States District Court for

the District of Columbia.

Petitioners, Randall A. Terry, Rev. Patrick Mahoney, A.

David Henderson, Robert Jewitt, Joseph J. Slovenec, and Rev.

James L. Rudd, are outspoken and committed pro-life activists.

Petitioners alleged that the threat of enforcement of FACE

against petitioners’ constitutionally protected but emotionally

provocative expressive activities has deterred and chilled

petitioners’ exercise of their right to free speech and assembly.

Petitioners sought declaratory and injunctive relief against

FACE both on its face and as construed and threatened to be

Cadi andere easihey osha

SEM BIOWARE EER WEE IS. a BI SEES Rie SIN MT si ass IEA Ei

2h RABANNE LA Ral a's esa

ee at RA

Srgpenntonsk hres

Sita aig PSHE ere

ia I NN RE gn a oe «ah

ery

applied by federal law enforcement officials.

Petitioners argued that FACE imposes discriminatory, vague,

and overbroad restrictions on expressive activity in violation of

the First Amendment. Petitioners also argued that FACE

exceeds congressional authority and therefore violates the Tenth

Amendment.

Respondents are Attorney General Janet Reno and U.S.

Attorney Eric Holder, the federal officials charged with

enforcement of FACE nationally and in the District of

Columbia, respectively. Respondents answered the petitioners’

complaint and subsequently moved for judgment on the

pleadings under Rule 12(c), Fed. R. Civ. P.

In a memorandum opinion filed on November 21, 1995, the

U.S. District Court for the District of Columbia granted

respondents’ motion for judgment on the pleadings. App. B.

"Accepting all well-pleaded facts of plaintiffs' complaint as

true," the district court "f[ound] no constitutional violations" in

the terms of FACE. App. 26a n.1. The district court entered a

judgment order in accord with its opinion. App. C.

Petitioners appealed. On December 19, 1996, a panel of the

U.S. Court of Appeals for the District of Columbia Circuit

affirmed. App. la.

The court of appeals held that FACE fell within

congressional authority under the Commerce Clause. App. Sa-

13a. Despite this Court's opinion in United States v. Lopez,

115 S. Ct. 1624 (1995), the court below ruled that a federal

criminal statute need neither restrict commercial activity, App.

10a, nor contain a jurisdictional element, App. 11a-12a.

According to the court of appeals, Congress need only find that

the restricted activities, viewed in the aggregate, App. 7a-8a,

have a substantial effect on an industry engaged, at least in part,

in interstate commerce, App. 6a. "[TJhe critical fact," said the

court of appeals, was the existence of a "threat to a national

market," App. lla (internal quotation marks, citation, and

emphasis omitted), from the regulated noncommercial activities.

The court of appeals also rejected petitioners’ First and Fifth

Amendment arguments, holding that FACE was not vague,

overbroad, or discriminatory. App. 13a-2la. The court

specifically ruled that FACE "does not play favorites" because,

for example, it would ban both graffiti expressing a pro-abortion

viewpoint at a crisis pregnancy center and graffiti expressing an 3

anti-abortion viewpoint at an abortion center. App. 15a.

Petitioners now seek review in this Court.

REASONS FOR GRANTING THE WRIT

Il THE PUBLIC HAS A STRONG INTEREST IN

RESOLVING THE CONSTITUTIONALITY OF

FACE.

Any serious question about the constitutionality of an Act of

Congress deserves review by this Court. This Court frequently

reviews the constitutionality of federal statutes without waiting

for a split in the appellate courts or for an appellate decision

invalidating the statute. For example, there appears to have

been no split of appellate authority on the constitutionality of

the federal statutes at issue in Denver Area Educ.

Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374

(1996); Felker v. Turpin, 116 S. Ct. 2333 (1996); or Colorado

R li ign Comm. v. Federal Election 'n, 116

S. Ct. 2309 (1996). See also City of Boerne v. Flores, 117 S.

Ct. 293 (1996) (granting certiorari to review constitutionality of

Religious Freedom Restoration Act in absence of circuit

conflict).

FACE essentially provides special federal police power

protection for one industry: abortion.” Furthermore, FACE

targets pro-life protesters for uniquely harsh treatment and

imposes vague and overbroad restrictions. FACE therefore

raises important questions about the scope of Congressional

power and the free speech and equal protection implications of

this effort by Congress to weigh in on one side of a national

controversy. See infra § II.

FACE has been the subject of widespread constitutional

controversy, both in the courts’ and in the scholarly literature.‘

"FACE was amended to add certain protection for access to religious

facilities. 18 U.S.C. § 248(a)(2), (3). Petitioners are aware of no use

of FACE to date to protect places of religious worship. In any event,

the religious protection provisions of FACE are not before this Court.

*The unconstitutionality of FACE was persuasively demonstrated by

the district courts in United States v. Wilson, 880 F. Supp. 621 (E.D.

Wis. 1995), rev'd, 73 F.3d 675 (7th Cir. 1995), cert. denied, 117 S. Ct.

46, 47 (1996), and in Hoffman v. Hunt, 923 F. Supp. 791 (W.D.N.C.

1996), appeal pending, Nos. 96-1581, 96-1582, 96-1623 (4th Cir. to

be argued Apr. 9, 1997), and by Judge Coffey of the Seventh Circuit in

dissent in United States v. Wilson, 73 F.3d 675, 689-702 (7th Cir

1995), cert denied, 117 S. Ct. 46, 47 (1996). Opinions upholding

FACE include: United States v. Scott, 919 F. my 76 (D. na

Walton, OF. how 290 (ED. Pa. 1996); ate i

v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 116 S. Ct. 55 (1995);

Cook v. Reno, 859 F. Supp. 1008 (W.D. La. 1994), vacated, 74 F.3d

97 (5th Cir. 1996), on remand, No. 94-0980 (W.D. La. Nov. 5, 1996);

United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, 117 S.

Ct. 507 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995),

cert. denied, 117 S. Ct. 46, 47 (1996); United States v. Dinwiddie, 76

F.3d 913 (8th Cir. 1996), cert. denied, 117 S. Ct. 613 (1996); Riely v.

Reno, 860 F. Supp. 693 (D. Ariz. 1994); Council for Life Coalition v.

Reno, 856 F. Supp. 1422 (S.D. Cal. 1994); United States v. White, 893

F. reid 1423 si D. Cal. sh noe oa arn

946 F. Supp. 1355 (D. Or. 1996). Chetfer v, Reno, 35 ee 1517 (Lith

Cir. 1995).

‘Compare Rose & Osborn, FACE-ial neutrality: A Free Speech

Challenge to the Freedom of Access to Clinic Entrances Act, 81 Va. L.

Rev. 1505 (1995) (contending FACE violates First Amendment); and

Note, About F.A.C.E. in the Supreme Court: The Freedom of Access

to Clinic Entrances Act in Light of Lopez, 11 St. John's J. Legal

Commentary 191 (1995) (FACE questionable under Commerce

Clause); with Comment, "FACE"ing the Facts: Does the Freedom of

Access to Clinic Entrances Act Violate Freedom of Speech? 64 U. Cin.

L. Rev. 947 (1996) sf ie FACE a First aeayninaaye and

Note, "FA E”-in

A to Cli ser from % 8 “ee —

to the Federal Courts, 46 Cath. ULL. Rev. 165 (1996) (defending FACE

under Commerce Clause and First Amendment). See also Note,

Freed A to Clinic En Act, 18 U.S.C. § 248: The

Controversy behind the Remedy, 20 Seton Hall Legis. J. 128 (1996)

(urging Supreme Court review to resolve constitutional doubts about

AS a consequence, the arguments for and against the

constitutionality of FACE have been thoroughly developed and

are ripe for consideration by this Court.

To those who oppose FACE, whether in principle® or in

practice, this Act threatens several important interests of

constitutional dimension. If FACE is a permissible exercise of

Congressional authority, then it is now fair game for any (or all)

businesses to seek federalization of laws against trespass,

disorderly conduct, vandalism, and the like. And if FACE

comports with the rights to free speech and equal protection,

then Congress may target other groups -- environmentalist

activists, animal rights activists, etc. -- for selectively harsh

legislation.

For those who support FACE, meanwhile, the continuing

controversy over its constitutionality hampers its use as a

criminal and civil litigation tool.

In short, both the public at large and the warring sides of the

abortion controversy have a strong interest in the definitive

resolution of FACE's constitutional status.

FACE).

*One need not oppose abortion to find fault with FACE. See, ¢.g.,

Rose & Osborn, supra note 4, at 1505 n.] (authors disagree on abortion

but agree on unconstitutionality of FACE).

Ii. THE DECISION BELOW CONFLICTS WITH

THIS COURT'S DECISION IN UNITED STATES

vy. LOPEZ AND RAISES IMPORTANT AND

UNSETTLED QUESTIONS OF

CONSTITUTIONAL LAW.

The decision below conflicts with this Court's decision in

United States v. Lopez, 115 S. Ct. 1624 (1995). Moreover, the

case at bar involves important questions of federal constitutional

law which have not been, but should be, settled by this Court.

A. FACE Represents _a_ Drastic and Unprecedented

i f i h

Commerce Clause, in Conflict with Lopez.

Those courts which, like the court below, have upheld .

FACE, have ruled that FACE falls within the authority of

Congress to regulate interstate commerce. App. 5a-13a. In so

doing, however, these courts have legitimized a new and

dramatic expansion of congressional commerce power and

essentially nullified this Court's decision in Lopez.

The crux of the federal government's case is ultimately the

contention that FACE directly prohibits interference with

persons because they are engaged in the commercial activity of

abortion. The government postulates that this fact provides the

requisite nexus with interstate commerce.

The premise of this argument is that Congress has the power

to prohibit interference with any business. This proposition,

however, overlooks the fact that the Constitution gives

Congress power over interstate commerce, not commerce per

se (much less anything affecting commerce). This proposition

would give Congress plenary police power over all businesses

and all activities affecting businesses -- i.e., all human activity.

The United States Constitution establishes a federal

government of limited powers, leaving all remaining powers to

the states and to the people. U.S. Const. amend. X. Congress

enjoys a range of enumerated powers, including the Commerce

Power -- the power to “regulate Commerce .. . among the

several States," id. art. I, § 8, cl. 3. This power, while broad, is

not so limitless as to justify FACE.

Over the past century, the federal judiciary has approved an

ever-more expansive interpretation of congressional power

under the Commerce Clause. E.g., Wickard v. Filburn, 317 U.S.

111 (1942) (Congress can regulate production of home-grown

wheat as part of national regulatory scheme); Perez v. United

States, 402 U.S. 146 (1971) (Congress can prohibit extortionate

credit transactions even when conducted intrastate).

Nevertheless, there are bounds to federal legislative power. If

not, "then written constitutions are absurd attempts, on the part

of the people, to limit a power, in its own nature illimitable."

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

This Court marked the limits of Commerce Clause power in

the recent case of United States v. Lopez, 115 S. Ct. 1624

(1995). In Lopez, this Court held that the Gun-Free School

Zones Act, 18 U.S.C. § 922(q), which prohibited the possession

of a firearm within 1,000 feet of a school, was “invalid as

beyond the power of Congress under the Commerce Clause."

115 S. Ct. at 1626.

The Lopez Court "identified three broad categories of

activity that Congress may regulate under its commerce power."

Id_ at 1629 (citation omitted).

1. "First, Congress may regulate the use of the channels of

interstate commerce," id., "for example, the shipment of stolen

goods . . . or of persons who have been kidnapped," Perez, 402

U.S. at 150 (citations omitted).

2. "Second, Congress is empowered to regulate and protect

the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though ihe threat may come

only from intrastate activities." Lopez, 115 S. Ct. at 1629. This

category includes, "for example, the destruction of an aircraft

... or thefts from interstate shipments," Perez, 402 U.S. at 150

(citations omitted).

3. "Finally, Congress' commerce authority includes the

power to regulate those activities having a substantial relation

to interstate commerce, .. i.e., those activities that

substantially affect interstate commerce." Lopez, 115 S. Ct. at

1629-30 (citations omitted). This category includes such

matters as the regulation of wheat production, Wickard, or milk

prices, United States v. Wrightwood Dairy Co., 315 U.S. 110

(1942), and the prohibition of extortionate credit transactions,

Perez.

As the court below recognized, "Of the three categories of

activity the Court held that Congress could regulate pursuant to

its Commerce Clause authority, only the third is relevant to this

case...." App. Sa. The court below held that FACE qualifies

as a valid enactment under the third Lopez category -- a

regulation of activities that "substantially affect" interstate

commerce. App. 9a-13a. This conclusion cannot be squared

with Lopez.

Lopez identified the ways in which a statute can "regulate

those activities having a substantial relation to interstate

commerce, . . . 1.e., those activities that substantially affect

interstate commerce." 115 S. Ct. at 1629-30 (citation omitted).

FACE, like the Gun-Free School Zones Act, possesses none of

these potential nexuses to interstate commerce.

: ag av ane™

Under Lopez, a statute can regulate "intrastate economic

activity" (e.g., growing wheat or mining coal) which

"substantially affect[s] interstate commerce." Lopez, 115 S. Ct.

at 1630 (emphasis added). Protest against abortion, like the

possession of a gun in a school zone, "is in no sense an

economic activity that might, through repetition elsewhere,

substantially. affect any sort of interstate commerce." Id. at

1634 (emphasis added). Likewise, FACE

is not an essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated. It cannot,

therefore, be sustained under our cases upholding

regulations of activities that arise out of or are connected

with a commercial transaction, which viewed in the

aggregate, substantially affects interstate commerce.

Id. at 1631. In other words, protest and disorderly conduct

cannot be analogized to wheat production or milk sales.

2. Jurisdictional element

Second, a statute can regulate noneconomic intrastate

activity if the statute contains a "jurisdictional element which

would ensure, through case-by-case inquiry, that the [activity]

in question affects interstate commerce." Id. at 1631. For

example, the federal felony gun possession statute and the

federal arson statute explicitly require proof of a nexus to

interstate commerce as an element of the offense. See United

States v. Bass, 404 U.S. 336 (1971) (felony gun possession);

Russell v. United States, 471 U.S. 858 (1985) (arson). FACE,

like the Gun-Free School Zones Act, contains no such

jurisdictional element.®

3. Going beyond Lopez

Because FACE neither regulates an economic activity nor

contains a jurisdictional element, FACE apparently exceeds all

prior exercises of congressional Commerce Clause authority.

As Judge Coffey of the Seventh Circuit observed about FACE,

"A federal statute that thus regulates pr rely non-commercial

activity, while at the same time absent jurisdictional language,

is unprecedented." United States v. Wilson, 73 F.3d at 692

(dissent).

The court below sought to avoid the logical conclusion --

that FACE exceeds the constitutional bounds of congressional

‘Congress could easily have chosen to follow the pattern of other

federal! criminal statutes by adding "in or affecting commerce," or

similar language, to FACE. However, Congress chose not to do so.

Hence, the constitutionality of a hypothetical amended FACE

containing such language is not before this Court.

authority -- by adopting a novel, and deeply flawed, legal

principle. The court held that Congress may regulate

noncommercial activities (e.g., protest activities), without any

jurisdictional language, if the reguiated activities, aggregated as

a whole, substantially affect an industry which involves, at least

in part, interstate commerce. App. 6a-12a..

The implications of this new principle cannot be

understated. This holding renders superfluous the jurisdictional

language of countless federal statutes. Arson, gun possession

by felons, indeed any criminal activity, in the aggregate, will

substantially affect businesses which engage in interstate

commerce. Hence, according to the court below, the language

limiting the scope of these federal crimes to conduct

specifically involving interstate commerce is wholly

unnecessary. Cf. App. 1la-12a. For the same reason, Congress

could pass a federal trespass, vandalism, or disorderly conduct

statute (which, essentially, is what FACE represents). In all

these cases, the regulated activity, viewed in the aggregate,

substantially affects businesses involved in interstate

commerce. Cf. App. 13a. Indeed, this principle has no logical

limit. Virtually every human activity affects either goods,

consumers, or providers which, taken as a whole, involve

interstate commerce. If the court below is correct, nothing is

beyond the purview of federal legislation under the Commerce

Clause. As Judge Kosinski has remarked, "[One] wonder{[s]

why anyone would make the mistake of calling it the

Commerce Clause instead of the ‘Hey, you-can-do-whatever-

you-feel-like Clause." Kosinski, Introduction to Volume

Nineteen, 19 Harv. J. L. & Pub. Pol’y 1, 5 (1995).

A rationale for Commerce Clause authority cannot be

accepted if the logic of that rationale would largely obliterate

the distinction between state and federal power. Lopez, 115 S.

Ct. at 1632-34. The Commerce Clause "may not be extended

so as to embrace effects upon interstate commerce so indirect

and remote that to embrace them, in view of our complex

society, would effectually obliterate the distinction between

what is national and what is local and create a completely

centralized government." Id. at 1628-29 (internal quotation

marks and citations omitted). For example, the argument that

violent crime raises the cost of doing business, and therefore

adversely affects commerce, would justify federal regulation of

"not only all violent crime, but all activities that might lead to

violent crime, regardless of how tenuously they relate to

interstate commerce." Id. at 1632 (citation omitted).

Therefore, that argument cannot justify FACE any more than it

could justify the Gun-Free School Zones Act. "[I]f we were to

accept the Government's arguments, we are hard-pressed to

posit any activity by an individual that Congress is without

power to regulate." Id.

The court below relied heavily upon congressional findings

about the connection between anti-abortion protest and

interstate commerce. However, "[s]imply because Congress

may conclude that a particular activity substantially affects

interstate commerce does not necessarily make it so." Lopez,

115 S. Ct. at 1629 n.2 (internal quotation marks and citation

omitted). "Whether particular operations affect interstate

commerce sufficiently to come under the constitutional power

of Congress to regulate them is ultimately a judicial rather than

a legislative question... ." Id. (editing marks, quotation

marks, and citation omitted).

The alleged nexus to interstate commerce which Congress

identified -- some goods, staff, or patrons of some abortion

facilities cross state lines, and the activities FACE restricts are

both widespread and have negative effects on businesses, see

App. 6a-8a -- applies with equal or greater force to Virtually any

business and any tortious or criminal activity.

If FACE is a constitutional exercise of congressional power

to regulate interstate commerce, then the federal government

has indeed crossed the Rubicon. Congress may, on this theory,

regulate non-commercial, intrastate activity with no

jurisdictional element tying the activity to interstate commerce.

FACE represents a tremendously significant attempted

expansion of congressional power. This Court should grant

review and rebuff this expansion as unconstitutional.

B. FACE Imposes Discriminatory, Vague. and Overbroad

ni E are

The conflict with Lopez suffices to warrant review of the

present case. But FACE also raises serious First and Fifth

Amendment questions. This Court should therefore grant

review to settle those constitutional questions as well.

With FACE, Congress consciously singled out the

opponents of abortion for selectively harsh treatment. While

protesters on other subjects or with other viewpoints receive

Slaps on the wrist, or even are lionized,’ exclusively nonviolent

See, e.g., "Jackson Freed," USA Today, Feb. 12, 1997, p. 3A

(Jesse Jackson only facing charge of disorderly conduct for

"blocking access to [a Chicago] construction site” as part of a protest

pro-life demonstrators face a $10,000 fine and six months

imprisonment for the first offense; subsequent offenses are

felonies. See § 248(b). If FACE passes constitutional muster

under the First and Fifth Amendments, then Congress (and the

states, despite the Fourteenth Amendment) may likewise target

other disfavored political and social movements for special

restrictions and penalties.

This selectively harsh legislation, combined with vague and

overbroad statutory language, raises important, substantial, and

unsettled questions under the First and Fifth Amendment.

1, First Amendment rights are implicated.

There is no question that petitioners’ expressive activities

implicate First Amendment rights. Pro-life picketing and

sidewalk counseling are core First Amendment activities.

Schenck v. Pro-Choice Network of Western New York, No. 95-

1065 (U.S. Feb. 19, 1996), slip op. at 18. Furthermore, "as a

general matter, we have indicated that in public debate our own

citizens must tolerate insulting, and even outrageous, speech in

order to provide adequate breathing space to the freedoms

protected by the First Amendment." Id. at 25 (internal

quotation marks, editing marks, and citations omitted).

The First Amendment protects speech on political and social

issues even if the speech is "intended to exercise a coercive

impact" and is "offensive to others." Organization for a Better

Austin v. Keefe, 402 U.S. 415, 419 (1971). Political

expression having the effect of intimidation is constitutionally

"for black truckers"; judge releasing Jackson "later shook Jackson's

hand").

protected speech. NAACP v. Claiborne Hardware Co., 458

U.S. 886 (1982).* Political speech that creates an apprehension

of fear is also constitutionally protected. Id. Moreover, if

speech is offensive and emotionally unsettling, "that

consequence is a reason for according it constitutional

protection." Si r, Inc. v. New York

State Crime Victims vy 502 U.S. 105, 118 (1991) (internal

quotations marks and citations omitted); Hustler Magazine v.

Falwell, 485 U.S. 46, 55 (1988).

Moreover, protection of free speech "does not end at the

spoken or written word." Texas v. Johnson, 491 U.S. 397, 404

(1989). 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). See, e.g.,

Texas v. Johnson (burning a flag); Tinker v. Des Moines Indep.

ee 393 U.S. 503 (1969) (wearing of black

armband); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

(cross burning).

*As this Court stated over twenty years ago, "undifferentiated fear

or apprehension of disturbance is not enough to overcome the right

to freedom of expression." Ti Vv. n

Sch. Dist., 393 U.S. 503, 505 (1969). Only advocacy "directed to

inciting or producing imminent lawless action" and "likely to incite

or produce such action" is unprotected. Brandenburg v. Ohio, 395

U.S. 444, 447 (1969).

2. FACE is avi ——"

This Court has held that any viewpoint discrimination

against speech is unconstitutional. Lamb's Chapel v. Center

Moriches Union Free School Dist., 508 U.S. 384, 394 (1993);

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). The

government may not "impose special prohibitions on those

speakers who express views on disfavored subjects," R.A.V..,

505 US. at 391.

It is abundantly clear that FACE is viewpoint-based, and

therefore unconstitutional. In its restrictions on "intimidation,"

"physical obstruction," blocking of access to medical buildings,

or vandalism, FACE targets only those who act "because [a]

person is . . . obtaining or providing reproductive health

services," Sec. 284(a)(1), or "because [a] facility provides

reproductive health services," Sec. 248(a)(3). FACE thus

discriminates against anti-abortion protest activity while leaving

untouched pro-abortion protests and protests on other subjects.

Indeed, the legislative history is rather explicit on this point:

Thus, for gee see mene

demonstrators would not violate this Act (though their

conduct might violate some other law, such as local trespass

law). In that example, the demonstrators’ motive is related

to the facility's emissions policy and practices and not to its

policy and practices on abortion-related services.

S. Rep. No. 117, 103rd Congress, Ist Sess. 24 (1993)

(emphasis added).

Concrete examples further illustrate this lack of viewpoint

neutrality. Consider the case of a multi-tenant medical center

with three entrances. At one entrance, animal rights activists

block the door to halt mistreatment of laboratory animals at a

research lab inside the center. At a second entrance, labor

union members hold a sit-down strike blocking the door to

protest unfair wages for maintenance workers in the center. At

a third entrance, anti-abortion activists conduct a "sit-in" to

prevent the practice of abortion at a facility inside the center.

€ anti- j tivists. See Sec.

248(a)(1). Consider a freestanding abortion center in an inner-

city location. A teenager, outraged that his girlfriend aborted

their child, spray paints "DEATH CAMP" on the side of the

building. Another teenager, who belongs to a gang called

"Warriors," spray paints "WARRIORS RULE" on the same

building. FACE only applies to the anti-abortion graffiti writer.

See Sec. 248(a)(3). Consider an abortion facility where pro-

abortion escorts gather outside in order to hamper anti-abortion

"sidewalk counseling." A woman walks up the sidewalk, and

an anti-abortion counselor approaches to offer literature and

information. A pro-abortion escort then physically blocks the

anti-abortion counselor and shoves the counselor aside. The

counselor then shoves the escort back. FACE only applies to

the anti-abortion counselor. See Sec. 248(a)(1).

This glaringly selective imposition of legal restrictions on

the basis of viewpoint clearly violates the First Amendment.

For instance, this Court has held that government may forbid

all use of public school premises after hours, but may not forbid

use only by those who wish to address a topic from a religious

viewpoint. Lamb's Chapel v. Center Moriches Union Free

School Dist. Government may forbid al] arson in certain

locales, but may not forbid only burning a flag to desecrate it.

Texas v. Johnson. Government may forbid all trespass and

vandalism at facilities, but may not forbid only trespass and

vandalism in the name of racial bigotry. R.A.V. v. City of St.

Paul. Government may forbid all targeted, single-residence

residential picketing, Frisby v. Schultz, 487 U.S. 474 (1988),

but may not forbid only nonlabor residential picketing. Carey

v. Brown, 447 U.S. 455 (1980). See also Schacht v. United

States, 398 U.S. 58, 62-63 (1970) (invalidating a law that

allowed wearing military uniforms only in dramatic portrayals

that did not "tend to discredit" the military). FACE violates the

basic cor~‘itutional principle of neutrality, "which requires the

democratic majority to accept for themselves and their loved

ones what they impose on you and me." Cruzan v. Director,

Mo. Dep't of Health, 497 U.S. 261, 300 (1990) (Scalia, J.,

concurring).’

It is true that FACE also would proscribe pro-abortion

blockades at pro-life pregnancy centers. But to say that FACE

is viewpoint-neutral because it covers this counterfactual,

hypothetical scenario is like saying a ban on pollution-related

protests is viewpoint-neutral because it would also ban pro-

pollution protests. Such an argument is plainly pretextual.

*This principle finds embodiment both in the free speech

guarantee of the First Amendment and in the right to equal

protection under the Fifth and Fourteenth Amendments. See R.A.V.,

505 U.S. at 384 n.4; Police Dep't v. Mosley, 408 U.S. 92 (1972);

Carey v. Brown.

More fundamentally, the pregnancy center hypothetical

simply shows that FACE's viewpoint-discrimination can apply

in other settings beyond abortion facilities. At pregnancy

centers, environmental protesters, labor protesters, and

supporters of the center are not covered, while pro-abortion

protesters are. Thus, whether at an abortion center or at a crisis

pregnancy center, FACE targets one particular viewpoint --

namely, those opposing the center's abortion (or pregnancy aid)

practice -- thereby unconstitutionally "licens[ing] one side of a

debate to fight freestyle, while requiring the other to follow

Marquis of Queensberry rules." R.A.V., 505 U.S. at 392."

3. FACE is unconstitutionally vague and

overbroad.

FACE also suffers from unconstitutional vagueness and

overbreadth.

"First Amendment 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. at 472. When a law lacks clearly defined prohibitions,

The addition to FACE of language that extends its prohibitions

and punishments to unlawful protest activities at places of religious

worship, as well as at abortion facilities, does not redeem the law.

Sec. 248(a)(2) and (3). A law penalizing two viewpoints is no less

unconstitutional than a law penalizing just one viewpoint. See

R.A.V. (ordinance applied to religious bigotry as well as racial

bigotry).

that law unconstitutionally threatens speech through the twin

vices of vagueness and overbreadth. FACE is both vague and

overbroad.

a. vagueness

The text of FACE -- set forth in an appendix --raises a host

of interpretive difficulties that engender unconstitutional

vagueness, as well as overbreadth.

-- "Force or Threat of Force": Does this include a

nonviolent "sit-in"? Calling someone 2 murderer? Warning

someone that he may go to Hell? Sec. 248(a)(1).

-- "Physical Obstruction": What does it mean to render

passage to or from a facility "unreasonably difficult"? Sec.

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

picket line? Be forced to walk around a persistent sidewalk

counselor? Step over people engaged in a "sit-in"? Wait

twenty minutes while police arrest participants in a "rescue"

blockade?"

-- "Injures": FACE says "injures" in section 248(a) but

elsewhere refers to "bodily injury," Sec. 248(b). Therefore, the

verb "injures" standing alone apparently includes causing other,

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

''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. Lee v. ISKCON, 505 U.S. 830 (1992) (ban on

leafletting in airport terminal violates First Amendment).

Emotional injury? 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. Sec. 248(e)(3). If FACE had defined

"intimidate" to mean “to place a person in reasonable

apprehension of imminent bodily harm from the actor to him or

herself," it would approximate the concept of assault. See 6

Ani. Jur. 2d Assault and Battery § 3 ( 1963). FACE, however,

departs markedly from this concept: first, the threatened harm

need not be imminent; second, the threatened harm need not

come from the person allegedly violating FACE; third, the

threatened harm may be to another person other than the one in

reasonable apprehension of the harm.

These features of FACE yield a drastically broadened

concept of "intimidation." FACE criminalizes anti-abortion

"threats" if they "intimidate" by placing another person in

r ion of harm sometime to someone from

something.

The breadth of this definition is astonishing. Warning any

listener of the physical perils of abortion will, if persuasive,

likely induce reasonable apprehension of bodily harm to those

seeking abortion. Merely saying, "If you (or your friend, wife,

daughter, etc.) have an abortion, you may die (or become

sterile, hemorrhage, get infections, get breast cancer, etc.)"

could, especially if backed up with medical statistics or personal

accounts, induce "reasonable apprehension of bodily harm" to

someone. True, the apprehension comes from the medical

information. True, the harm feared may or may not be

imminent. True, the harm feared would come from the

abortion, not the sidewalk counselor. True, the harm may be to

someone else. But FACE takes none of these factors into

consideration. "Threatening" the medical harms of abortion

triggers the literal language of FACE.

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

a person's freedom of movement." Sec. 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?

The vagueness of FACE has terribly grave practical

significance. Those who wish lawfully to distribute literature or

speak to passersby about abortion alternatives must act at their

peril when present outside abortion facilities. 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 (i.e., a felony)

for second or subsequent nonviolent offenses, to say nothing of

civil remedies and attorneys fees. Sec. 248 (b) and (c).

Compounding this problem is the fundamental bias of FACE:

this one-way statute weighs down only upon anti-abortion

activities, removing the moderating influence that would result

from equal applicability of the legal norms.

b. overbreadth

FACE's overbreadth is amply illustrated in the preceding

section.

FACE is also overbroad because it is not geographically

limited. It purports to protect access to abortion facilities

because of problems arising at those locations, yet restricts

communicative activities without regard to any proximity to

such facilities. E.g., Lucero v. Trosch, 904 F. Supp. 1336 (S.D.

Ala. 1995) (FACE civil suit predicated on remarks made on

"Geraldo" TV show). Nor is FACE limited temporally, i.e., to

interference with specific, impending abortions. Id.

Given the extraordinary penalties and civil remedies available

to punish violations, FACE doubtless has a severe chilling effect

on entirely lawful (indeed, constitutionally protected) anti-

abortion expression at abortion facilities. In this context, the

substantial overbreadth of FACE's prohibitions render it

unconstitutional. See W

Jesus, 482 U.S. 569, 574 ( 1987); Houston v. Hill, 482 U.S. at

458-59; New York v. Ferber, 458 U.S. 747, 769 (1982).

CONCLUSION

This Court should grant the petition for a wnt of certiorari.

Respectfully submitted,

Jay Alan Sekulow

(Counse! of Record)

James M. Henderson, Sr.

Mark N. Troobnick

Walter M. Weber

American Center for Law

& Justice

Thomas P. Monaghan

Francis J. Manion

The New Hope Life Center,

ACLJ-New Hope

6375 New Hope Road

New Hope, KY 40052

(502) 549-7020

1000 Thos. Jefferson St. N.W.

Suite 609

Washington, DC 20007

(202) 337-2273

John G. Stepanovich

American Center for Law

& Justice

1000 Regent University Dr.

Virginia Beach, VA 23464

(757) 579-2489

Attorneys for Petitioners

March 10, 1997

APPENDICES

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 1996 Decided December 10, 1996

No. 95-5419

RANDALL A. TERRY, ET AL.,

APPELLANTS

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the. United States District Court

for the District of Columbia

(No. 94cv01154)

Mark N. Troobnick argued the cause for appellants. With him

on the brief were Jay A. Sekulow, Colby M. May and James M.

Henderson, Sr.

Sushma Soni, Attorney, U.S. Department of Justice, argued the

cause for appellees. With her on the brief were Frank W.

Hunger, Assistant Attorney General, Eric H. Holder, Jr.. U.S.

Attorney, and Mark B. Stern, Attorney.

Celeste Lacy Davis and John Vanderstar were on the brief for

intervenor-appellees.

Before: WILLIAMS, SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case, anti-abortion protesters

challenge the constitutionality of the Freedom of Access to

Clinic Entrances Act. Enacted in 1994, that statute prohibits

the use or threat of force or physical obstruction against a

person seeking to obtain or provide reproductive health

services, including abortions. Agreeing with the district court

and joining four of our sister circuits, we sustain the

constitutionality of the Access Act. Because the legislative

record contains sufficient findings to conclude that violent and

obstructive protest activities substantially affect interstate

commerce in reproductive health services, Congress did not

exceed its commerce power in enacting the statute. The Access

Act also does not violate the First Amendment. It prohibits

conduct, not speech, and its prohibition is narrowly tailored to

further the Government’s legitimate interest in providing safe

access to reproductive health services.

Reacting to a nationwide pattern of blockades, vandalism,

and violence aimed at abortion clinics and their patients and

employees, Congress enacted the Freedom of Access to Clinic

Entrances Act. 18 U.S.C. § 248 (1994). Referred to

throughout this opinion as the Access Act, the statute provides:

(a) Prohibited Activities.--Whoever--

(1) by force or threat of force or by physical

obstruction, intentionally injures, intimidates or interferes

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;

(3) intentionally damages or destroys the property of a

facility, or attempts to do so, because such facility provides

reproductive health services .

shall be subject to [criminal penalties and civil remedies],

except that a parent or legal guardian of a minor shall not be

subject to any penalties or civil remedies under this section

for such activities insofar as they are directed exclusively at

that minor.

18 U.S.C. § 248. According to the Access Act’s rules of

construction, nothing in it “shall be construed ___ to prohibit

any expressive conduct (including peaceful picketing or other

peaceful demonstration) protected from legal prohibition by the

First Amendment to “the Constitution - ...” Id. § 248(d)(1)

The statute also defines the terms “interfere with,” “intimidate,”

“physical obstruction,” and “reproductive health services.” Jd

§ 248(e)(2)-(5). “Physical obstruction,” for example, means

“rendering impassable ingress to or egress from a facility that

provides reproductive health services .._ or rendering passage

to or from such a facility . | . unreasonably difficult or

hazardous.” /d § 248(e)(4). Criminal penalties under the

Access Act vary depending on whether the offense was

nonviolent or violent, and whether the offender was a first-time

violator or a repeat offender. Jd § 248(b).

On May 26, 1994, the day the President signed the Access

Act into law, appellants filed suit in the United States District

Court for the District of Columbia challenging the

constitutionality of the Act both on its face and “as applied or

threatened to be applied” to them. Appellants are anti-abortion

activists from New York, Virginia, Ohio, and the District of

Columbia, whose protest activities take place in the District of

Columbia and elsewhere in the United States. Compl. at 3-5.

Appellants picket abortion clinics, distribute literature, offer

“sidewalk counseling” to women entering abortion facilities, and

lead anti-abortion protesters in public prayer and slogan

chanting. /d. at 6-9. Several appellants participated in “sit-ins,”

which “did have the effect, temporarily, of interfering with and

blocking access to abortion facilities.” /d. at 9. According to

five of the six appellants, protesting against abortion “serves a

higher and more compelling purpose than that served by

traditional laws against trespass and blocking access to abortion

facilities.” Jd. at 8.

The district court granted the Government’s motion for

judgment on the pleadings pursuant to FED. R. Civ. P. 12(c).

Finding that the statute “‘protects and regulates commercial

enterprises operating in interstate commerce,”” the court ruled

that Congress had the power to enact the statute under the

Commerce Clause. Terry v. Reno, Civ. No. 94-1154, slip op.

at 11 (D.D.C. Nov. 21, 1995) (quoting Cheffer v. Reno, 55

F.3d 1517, 1520 (11th Cir. 1995)). Relying on American Life

League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 116

S. Ct. 55 (1995), the district court held that because the Access

Act was viewpoint-neutral and narrowly tailored to further

substantial government interests, it did not violate the First

Amendment. Terry, slip op. at 5-8. The district court also

ruled that the Act did not violate principles of due process or

equal protection, that it did not violate the Religious Freedom

Restoration Act of 1993, 42 U.S.C. § 2000bb ef seq. (1994),

and that plaintiffs’ Eighth Amendment claims were not ripe for

review. Jd. at 9-13.

In their “Statement of the Issues,” appellants list nine

challenges to the Access Act. Appellants’ Br., at vi. By failing

to brief five of these challenges, they have waived them. See

FED. R. App. P. 28(a)(6); Democratic Cent. Comm. v.

Washington Metro. Area Transit Comm'n, 485 F .2d 786, 790

n.16 (D.C. Cir. 1973) (where petitioners offer “no argument

whatever” in support of certain issues on appeal, court will

decline to consider them). Rule 28(a)(6) requires that the

argument section of an appellate brief “contain the contentions

of the appellant on the issues presented, and the reasons

therefor ... .” FED. R. APP. P. 28(a)(6). Simply listing the

issues on review without briefing them does not preserve them.

Cratty v. United States, 163 F.2d 844, 851 (D.C. Cir, 1947)

(where certain grounds for appeal are “stated by the appellants

but not urged in their brief,” they are treated as abandoned).

We therefore address only the arguments appellants have

briefed: that the Access Act exceeds Congress’s commerce

power, that it abridges appellants’ First Amendment rights;

that it violates the Equal Protection Clause; and that the district

court erred in granting the Government’s motion for judgment

on the pleadings.

Appellants’ Commerce Clause challenge rests on the

Supreme Court’s recent decision in United States v. Lopez, 115

S. Ct. 1624 (1995). There, the Court struck down the Gun-

Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1994),

which made possession of a gun within a school zone a federal

offense. Of the three categories of activity the Court held that

Congress could regulate pursuant to its Commerce Clause

authority, only the third is relevant to this case: Congress can

regulate activities if it has a rational basis for concluding that

they “substantially affect interstate commerce.” Lopez, 115 S.

Ct. at 1630. The Lopez Court found that possession of guns

within school zones was not commercial in nature, that the

statute did not contain a jurisdictional element to ensure on a

case-by-case basis that the gun in question was connected with

interstate commerce, and that Congress had made no findings

about the effect gun possession in school zones has on interstate

commerce. Jd. at 1630-32. The Court then considered and

rejected the Government's arguments, developed only after the

statute’s constitutionality was challenged in court, linking the

possession of guns near schools to interstate commerce. Id. at

1632-33. Because it could not conclude that Congress had a

rational basis for finding that gun possession within school

zones had a substantial effect on interstate commerce, the Court

declared the statute unconstitutional. Jd. at 1634.

Lopez’s impact on the limits of the commerce power is a

hotly debated issue. Because the Access Act does not test

those limits, we need not enter that fray. Indeed, we can begin

where the Lopez Court could not—with congressional findings

regarding the effect on interstate commerce of anti-abortion

violence and blockades of abortion clinics.

Although no interstate commerce findings appear in the text

of the statute, we consider “even congressional committee

findings” regarding the effect on interstate commerce of the

regulated activity. Lopez, 115 S. Ct. at 1631; see, eg.,

Preseault v. ICC, 494 U.S. 1, 17 (1990) (citing House Report

in discussion of congressional findings regarding effect on

interstate commerce of federal “rails-to-trails” statute). The

Senate Committee on Labor and Human Resources, which held

hearings on anti-abortion violence and drafted the bill that

ultimately became the Access Act, concluded that for several

reasons abortion clinics do engage in interstate commerce: they

obtain medical equipment and supplies through interstate

commerce, they treat patients who travel interstate to obtain

services, their employees travel interstate, and they own and

lease office space and generate income. S. REP. No. 103-117,

at 31 (1993).

Having concluded that abortion clinics engage in interstate

commerce, the Committee also documented the effect violent

and disruptive anti-abortion protest activities have on clinics and

their operations. According to the Senate Report:

A nationwide campaign of anti-abortion blockades,

invasions, vandalism and outright violence is barring access

to facilities that provide abortion services and endangering

the lives and well-being of the health care providers who

work there and the patients who seek their services. This

conduct is interfering with the exercise of the constitutional

right of a woman to choose to terminate her pregnancy, and

threatens to exacerbate an already severe shortage of

qualified providers available to perform safe and legal

abortions in this country.

Id. at 3. The Report chronicled escalating violence against

abortion providers and clinics, including eighty-four assaults,

thirty-six bombings, eighty-one arsons, seventy-one chemical

attacks, 131 death threats, two kidnappings, 327 clinic

invasions, over 6,000 blockades, and—as of 1993—one

murder /d. at 3-11. According to the Committee, protester

violence and blockades forced temporary or permanent closure

of abortion facilities, causing doctors to refuse to perform

abortions and producing a scarcity of both clinics and

physicians. Jd. at 14-17. The number of doctors providing

abortion services declined in thirty-four states between 1985

and 1988. Jd. at 17 n.29. Some doctors traveled to several

states, some for hundreds of miles, to perform abortions at

clinics which had no physicians of their own. Jd. at 31 & n.46.

Patients, too, sometimes traveled hundreds of miles to obtain

abortions, either within their states or at clinics in other states.

Id. at 31. The Committee also found that in some rural areas,

arson and chemical attacks had forced medical clinics to stop

providing not only abortions, but other reproductive services as

well, including pre- and post-natal care. /d. at 5-6.

According to the Committee, some anti-abortion

organizations engaged in concentrated nationwide campaigns

against abortion clinics and physicians providing abortions. /d.

at 11-14. Relying on statements of those groups’ leaders, the

Committee concluded that clinic blockades, threats against

employees, and other violent and obstructive activities have a

single goal: to eliminate the practice of abortion by closing

abortion clinics. /d. at 11.

Although this legislative record amply supports Congress's

finding that the activities of anti-abortion activists affect

interstate commerce, this conclusion does not end our analysis;

Lopez holds that the effect on interstate commerce must be

“substantial.” Lopez, 115 S. Ct. at 1630. As the Court

acknowledged, the standard was not always so demanding:

“fOJur case law has not been clear whether an activity must

‘affect’ or ‘substantially affect’ interstate commerce in order to

be within Congress’ power to regulate it... .” Jd In one case,

the Court described the standard this way:

The task of a court that is asked to determine whether a

particular exercise of congressional power is valid under the

Commerce Clause is relatively narrow. The court must

defer to a congressional finding that a regulated activity

affects interstate commerce, if there is any rational basis for

such a finding.

Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,

452 U.S. 264, 276 (1981) (citing Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 258 (1964), and Katzenbach v.

McClung, 379 U.S. 294, 303-04 (1964)); see also Preseaull,

494 U.S. at 17 (“[W]e must defer to a congressional finding that

a regulated activity affects interstate commerce ‘if there is any

rational basis for such a finding.”” (quoting Hodel )).

We think it obvious that Congress’s failure to use the magic

word “substantial” is not fatal to the statute’s constitutionality.

For one thing, since Congress passed the Access Act prior <o

Lopez, it understandably did not find that activities proscribed

by the statute “substantially” affect interstate commerce; it

simply found that those activities “affect” interstate commerce.

S. REP. No. 103-117, at 31. Moreover, if Congress “normally

is not required to make formal findings” as to the burdens that

particular activities place on interstate commerce, Lopez, 115 S.

Ct. at 1631, then Congress surely need not make formal findings

that the activities “substantially” affect interstate commerce.

Just as we can examine the legislative history to assure

ourselves that Congress made findings regarding the impact of

anti-abortion activities on interstate commerce, supra at 6-7, we

can, as appellants’ counsel conceded at oral argument, examine

those findings to assure ourselves that the impact is substantial.

In light of the Senate Report’s detailed review of the effect

violent and obstructive anti-abortion protest has had upon the

availability of abortions nationwide, we have no doubt that

Congress found the impact of such activities on interstate

commerce to be substantial.

Appellants argue that the Access Act regulates not abortion

clinics, but profest against abortion clinics, and that Congress

may not regulate protest under the Commerce Clause.

Although two circuits have found that the Act does in fact

regulate the provision of reproductive health services, United

States v. Wilson, 73 F.3d 675, 683 (7th Cir. 1995) (Act

regulates provision of health services “by preventing its

10a

obstruction”), cert. denied, 117 S. Ct. 47 (1996); Cheffer v.

Reno, 55 F.3d at 1520 (unlike statute challenged in Lopez,

Access Act “does regulate commercial activity, the provision of

reproductive health services”), we need not address that issue.

As counsel conceded at oral argument, Congress has authority

to regulate “activities that substantially affect interstate

commerce.” Lopez, 115 S. Ct. at 1630 (emphasis added). The

regulated activity—in this case, interfering with abortion

clinics—need not be commercial, so long as its effect on

interstate commerce is substantial. As the Supreme Court said

in a different context, “An enterprise surely can have a

detrimental influence on interstate or foreign commerce without

having its own profit-seeking motives.” National Org. for

Women, Inc. v. Scheidler, 114 S. Ct. 798, 804 (1994). Like the

Eleventh Circuit, we find no support for “the proposition that

Congress’ Commerce Clause authority extends only to the

regulation of commercial actors, and not private individuals

who interfere with commercial activities in interstate

commerce.” Cheffer, 55 F.3d at 1520 n.6; see also United

States v. Dinwiddie, 76 F.3d 913, 920 (8th Cir. 1996) (same),

petition for cert. filed (U.S. Aug. 16, 1996) (No. 96-5615);

Wilson, 73 F.3d at 684-85 (same).

We can quickly dispose of appellants’ remaining Commerce

Clause challenges. Although they may be correct that, by itself,

interstate travel by patients and staff is insufficient to justify

finding that clinic operations affect interstate commerce, their

reliance on Bray v. Alexandria Women’s Health Clinic, 113 S.

Ct. 753 (1993), is misplaced. Bray’s holding that anti-abortion

protest does not implicate the constitutional right co interstate

travel, id at 762-63, is irrelevant to the inquiry in this case, i.e.,

whether patients in fact travel interstate to obtain abortions. In

fact, the Bray Court’s implicit acceptance of the district court’s

ane

lla

findings that substantial numbers of women traveled interstate

to have abortions reinforces the congressional findings

underlying the Access Act. /d. at 762. In any event, travel by

patients and staff was not the Committee’s only finding

regarding whether abortion clinics Operate in interstate

commerce. The Committee also found that clinics purchase

equipment and supplies in interstate commerce, own and lease

office space, and generate income. S. REP. No. 103-1 17, at 31.

Combined with such findings, the interstate travel of patients

and staff supports the conclusion that the Access Act does not

exceed Congress’s Commerce Clause power.

Appellants’ argument that the “decrease in the number of

abortions” is insufficient to justify the statute ignores the critical

fact: the marked decrease in the availability of abortions

nationwide, a decrease Congress attributed both to the forced

closure of clinics by blockades or violence, and to the

decreasing number of physicians willing to perform abortions

because of protesters’ threats. “It is this threat to a national

market,” the Seventh Circuit observed, “which Congress found

to be scarce and declining in availability, that distinguishes

Congress’s authority to regulate in this case from its probable

lack of authority to regulate, for example, shoplifting... .”

Wilson, 73 F.3d at 682 (emphasis added).

Aside from their unsuccessful challenges to the

congressional findings, appellants’ only other Commerce Clause

argument is that the Access Acct is invalid because it lacks a

jurisdictional element. We do not view Lopez as holding that

federal criminal statutes must contain jurisdictional elements.

if a jurisdictional element were critical to a statute’s

constitutionality, the Court in Lopez would not have gone on to

examine the Government’s proffered rationales for the

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constitutionality of the gun possession statute. See Lopez, 115

S. Ct. at 1632-34. Lopez’s fundamental proposition is that

Congress must ensure that its Commerce Clause power to

regulate non-commercial activities extends to only those

activities that substantially affect interstate commerce.

Congress may do so either through its own legislative findings

or by including a jurisdictional element in the statute; it need

not do both. Where, as here, detailed congressional findings

support the conclusion that the activities prohibited by the

Access Act substantially affect interstate commerce, the absence

of a jurisdictional element is not fatal to the statute’s

constitutionality. See Wilson, 73 F.3d at 685 (“In discussing the

lack of a jurisdictional element in Lopez, the Court simply did

not state or imply that all criminal statutes must have such an

element, or that all statutes with such an element would be

constitutional, or that any statute without such an element is per

se unconstitutional.”).

In concluding that the Access Act satisfies Lopez, we think

it significant that the statute fundamentally differs from the

statute struck down in Lopez. The Access Act prohibits

activities—force, threats, physical obstruction of access to or

from reproductive health facilities, and physical damage to those

facilities. The statute invalidated in Lopez did not prohibit

active interference of this sort, but rather simple possession of

a gun near a school. This difference is telling. As the Court

explained in Lopez, in order to justify the constitutionality of

prohibiting gun possession near schools, the Government had to

engage in several multi-step analyses to link gun possession to

interstate commerce: (1) gun possession near schools leads to

gun use, which in turn leads to violent crime, which in turn

imposes substantial costs on society, which in the end affects

interstate commerce; and (2) gun possession near schools

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threatens the educational environment, which hampers the

educational process, which creates a “less productive citizenry,”

which adversely affects “the Nation’s economic well-being,”

and which in the end adversely affects interstate commerce.

Lopez, 115 §. Ct. at 1632. In the case before us, the chain

connecting the prohibited activity and interstate commerce

contains only one link: violent and obstructive activity outside

abortion clinics adversely affects interstate commerce in

reproductive health services. In enacting the Access Act,

Congress did not exceed its Commerce Clause power.

Iii

We turn to appeilants’ First Amendment challenges to the

Act. Applying long-standing Supreme Court precedents, we

find the statute compatible with the First Amendment.

To begin with, the Access Act does not target protected

speech. It prohibits three types of conduct: use of force, threat

of force, and physical obstruction. In this sense, the Access Act

is virtually identical to the statute upheld in United States v.

O'Brien, 391 US. 367 ( 1968), which also punished

conduct—the destruction of draft cards. Moreover, the

Supreme Court has ruled that the Government can punish all

three types of conduct covered by the Access Act without

running afoul of the First Amendment. The first, physical

assault, “is not by any stretch of the imagination expressive

conduct protected by the First Amendment.” Wisconsin v.

Mitchell, 508 U.S. 476, 484 (1993). Threats are not protected

speech either. Madsen v. Women’s Health Ctr., Inc., 114 S. Ct.

2516, 2529 (1994) (“Threats to [clinic] patients or their

families, however communicated, are proscribable under the

First Amendment.”). Consistent with the First Amendment, the

Government may also punish physical obstruction that makes

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passage to or from a reproductive health facility impossible or

unreasonably hazardous. Cameron v. Johnson, 390 U.S. 611,

617 (1968). Protesters have no First Amendment right to

“cordon off a street, or [the] entrance to a public or private

building, and allow no one to pass who did not agree to listen

to their exhortations.” Cox v. Louisiana, 379 U.S. 536, 555

(1965). Going “beyond protest,” such activity “invade[s]

property nights.” United States v. Soderna, 82 F.3d 1370, 1375

(7th Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3086 (July

26, 1996) (No. 96-141). O’Brien, Mitcheil, Madsen, and Cox

thus squarely govern this case.

That conduct prohibited by the Access Act might have

expressive value, such as in the case of sit-ins which

“temporarily . . . interferje] with and block[ ] access to abortion

facilities,” see Compl. at 9, does not alter our conclusion

regarding the Act’s constitutionality. Congress may regulate

conduct with expressive content without running afoul of the

First Amendment if the legislation “furthers an important or

substantial governmental interest; if the governmental interest

is unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that interest.”

O Brien, 391 U.S. at 377. The Access Act meets this standard.

The statute furthers several important government interests,

not the least of which are ensuring access to lawful health

services and protecting the constitutional right of women

seeking abortions and other pregnancy-related treatment. As in

O'Brien, the Government’s interest is unrelated to the

suppression of free expression. The statute at issue in O Brien

prohibited destroying draft cards, not destroying draft cards by

anti-war protesters. Here the statute prohibits interfering with

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reproductive health services, not interfering with those services

by anti-abortion demonstrators. The statute therefore

“condemns only the independent noncommunicative impact of

conduct within its reach.” Jd at 382. Moreover, the Act

protects individuals providing and obtaining “reproductive

health services,” not just abortions. The statute defines

“reproductive health services” to include “medical, surgical,

counselling or referral services relating to the human

reproductive system, including services relating to pregnancy or

the termination of a pregnancy.” 18 U.S.C. § 248(e)(5). The

Access Act thus does not play favorites: it protects from

violent or obstructive activity not only abortion clinics, but

facilities providing pre-pregnancy and pregnancy counseling

services, as well as facilities counseling alternatives to abortion.

See Riely v. Reno, 860 F. Supp. 693, 702 (D. Ariz. 1994)

(Access Act “would apply to an individual who spray paints the

words ‘KEEP ABORTION LEGAL’ on a facility providing

counseling regarding abortion alternatives as well as to the

individual who spray paints the words ‘DEATH CAMP’ on a

facility providing abortion services.”). Because the Act

criminalizes only violent or obstructive conduct against

reproductive health facilities or those seeking to obtain or

provide reproductive health services, the views of those arrested

for committing violence against or obstructing people obtaining

or providing reproductive health services are irrelevant.

That the majority of those whose conduct the statute

punishes probably oppose abortion does not call the statute’s

neutrality into question. In O’Brien, the Court upheld a law

prohibiting willful destruction of draft cards even though most

people destroying their draft cards opposed the Vietnam War.

There is, after all, “no disparate-impact theory in First

Amendment law.” Dinwiddie, 76 F.3d at 923. Appellants

16a

“cannot obtain constitutional immunity from prosecution by

violating a statute more frequently than any other group.”

Soderna, 82 F.2d at 1376 (citing Madsen, 114 S. Ct. at 2523-

24).

The Access Act survives O'Brien’s third inquiry: the

statute is narrowly tailored to further the Government’s

interests. As the Eighth Circuit put it in Dirmwiddie, the statute

merely “forbids physical interference with people going about

their own lawful private business.” Dinwiddie, 76 F.3d at 924.

The Act also leaves open ample alternative means for

communication: “In a non-violent, non-obstructive manner,

protestors may still stand outside reproductive health facilities

and express their anti-abortion message. They may still

proclaim their views and make their pleas by voice, signs,

handbills, symbolic gestures and other expressive means.”

American Life League, 47 F.3d at 652 (footnote omitted).

Our conclusion that the Access Act satisfies the O ‘Brien

test might be different if, notwithstanding the Act’s clear focus

on conduct, the Government were using it to prosecute

appellants for their First Amendment activity. But this is not

such a case. Appellants’ compiaint does not allege that

defendants applied the Act to them or their protest activities,

nor have they amended the complaint to include such

allegations. Indeed, they filed their complaint on the day the

Access Act was signed into law.

The statute’s motive requirement—that a person violates

the Act by engaging in proscribed conduct “because” a person

is obtaining or providing reproductive health services—is not,

as appellants claim, fatal to its constitutionality. Again,

Wisconsin v. Mitchell controls. The statute at issue in that case

enhanced the sentence for aggravated battery if the aggressor

17a

“intentionally select[ed]’” his victim on the basis of his “race,

religion, color, disability, sexual orientation, national origin or

ancestry... .’” Mitchell, 508 U.S. at 480 (quoting Wis. Stat.

§ 939.645(1)(b) (1989-1990)). The Wisconsin Supreme Court

had invalidated the statute because, in its view, the law

criminalized bigoted thought—it ““punishe[d] the ‘because of

aspect of the defendant’s selection, the reason the defendant

selected the victim, the motive behind the selection.” Jd. at 482

(quoting Mitchell v. Wisconsin, 485 N.W.2d 807, 812 (1992)).

Reversing, the Supreme Court found that motive “plays the

same role under the Wisconsin statute as it does under federal

and state antidiscrimination laws,” which the Court has

ccasistently upheld against constitutional challenge. Mitchell,

508 U.S. at 487 (citing Roberts v. United States Jaycees, 468

U.S. 609, 628 (1984) (no First Amendment right to discriminate

in membership of charitable organization on basis of sex in

violation of state antidiscrimination law); Hishon v. King &

Spalding, 467 U.S. 69, 78 (1984) (no First Amendment right to

discriminate in hiring on basis of sex in violation of Title Vi);

Runyon v. McCrary, 427 U.S. 160, 176 (1976) (no First

Amendment right to discriminate on basis of race in selecting

who may attend a private school)). The Mitchell Court

distinguished the ordinance invalidated in R.A.V. v. City of St.

Paul, 505 U.S. 377 (1992), from the Wisconsin statute it

upheld, pointing out that the former explicitly targeted

expression—“‘fighting words’ that insult, or provoke violence,

‘on the basis of race, color, creed, religion, or gender’”—while

the Wisconsin statute targeted conduct unprotected by the First

Amendment. Mitchell, 508 U.S. at 487. Nothing distinguishes

the case before us today from Mitchell. Like the statute in

Mitchell, the Access Act targets not expression, but conduct.

As the Court recognized in R.A.V., “here the government does

18a

not target conduct on the basis of its expressive content, acts

are not shielded from regulation merely because they express a

discriminatory idea or philosophy.” R.A.V., 505 U.S. at 390.

The Act’s motive requirement, as with similar requirements in

other federal statutes, see, e.g., 42 U.S.C. § 3631 (1994) ( Fair

Housing Act provision prohibiting use or threat of force against

person because he or she participates in certain housing

programs); 42 U.S.C. § 1971(b) (1994) (Voting Rights Act

provision stating that no person shall threaten another for the

purpose of interfering with his or her right to vote), does not

make the Access Act an instrument for the suppression of

speech. It merely narrows the Act’s reach.

Remaining are appellants’ claims that the Access Act is

overbroad and vague. A statute is overbroad only if “it reaches

a substantial number of impermissible applications.” New York

v. Ferber, 458 U.S. 747, 771 (1982); see City of Houston v.

Hill, 482 U.S. 451, 458 (1987) (“Only a statute that is

substantially overbroad may be invalidated on its face.”).

Contrary to appellants’ argument, the Access Act prohibits only

a narrow range of conduct: the use or threat of force, or

nonviolent physical obstruction, intended to prevent access to

or the provision of reproductive health services. Moreover, the

statute contains language barring its application to expressive

conduct protected by the First Amendment, such as picketing or

other peaceful demonstration 18 U.S.C. § 248(d)(1).

Appellants suggest two allegedly impermissible applications of

the statute:

[The Access Act] criminalizes ‘threats’ that the person who

is uttering the ‘threat’ will harm himself if another person

obtains or provides an abortion. Sec. 248(e)(3) (definition

of ‘intimidate’). [The Access Act] therefore criminalizes a

i i rei cen

19a

genuine threat to go on an extended ‘hunger strike’—i.e.,

risk ‘bodily harm’ to oneself—if another person obtains or

provides an abortion. Under section 248(a)(1) and (e)(3),

such a ‘threat’ would constitute criminal intimidation

because it would ‘place a person in reasonable apprehension

of bodily harm ... to another.’ [The Access Act’s]

definition of ‘intimidation’ would also include the ‘harm’ of

increased medical risk—a harm abortion advocates claim is

inherent in any delay or denial of abortion (even by

voluntary choice of childbirth).

Appellants’ Br., at 37. When judged in relation to the statute’s

plainly legitimate sweep,” neither of these examples renders the

statute overbroad. Broadrick v. Oklahoma, 413 US. 601, 615

(1973).

We are equally unpersuaded by appellants’ vagueness

challenge. A statute is unconstitutionally vague if it does not

give a “person of ordinary intelligence a reasonable opportunity

to know what is prohibited.” Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). In arguing that the terms “interfere with”

and “intimidate” are vague, appellants ignore the statute’s

explicit definition of these terms. “Interfere with” means “to

restrict a person’s freedom of movement.” 18 USC. §

248(e)(2). “Intimidate” means “to place a person in reasonable

apprehension of bodily harm to him- or herself or to another.”

Id. § 248(e)(3). Because the Supreme Court has held that the

term “unreasonably interfere’ plainly require[s] no ‘guess[ing]

at [its] meaning,” Cameron, 390 U.S. at 616, we fail to see

how the term “interfere with,” confined as it is by the narrow

definition in the statute, could possibly be vague. We agree

with the Fifth Circuit, moreover, that the term “<ntimidate” is

“obviously widely used and commonly understood in statutory

20a

contexts.” CZSPES v. FBI, 770 F.2d 468, 477 (Sth Cir. 1985);

see also United States v. Gilbert, 813 F.2d 1523, 1530 (9th

Cir.) (rejecting vagueness challenge to Fair Housing Act, 42

U.S.C. § 3631, which prohibits the use or threat of force to

“injure, intimidate, or interfere with” a person because he or she

is participating in certain housing programs), cert. denied, 484

U.S. 860 (1987); Dinwiddie, 76 F.3d at 924 (definition of

“intimidate” in Access Act similar to that of an element in crime

of assault). While “the fertile legal ‘imagination can conjure up

hypothetical cases in which the meaning of [disputed] terms will

be in nice question,” Grayned, 408 U.S. at 110 n.15 (quoting

American Communications Ass'n v. Douds, 339 U.S. 382, 412

(1950)), the Access Act defines its terms narrowly and in clearly

understandable language.

Protest, picketing, and other like activities lie at the core of

free speech guaranteed by the First Amendment. For decades,

courts have protected such forms of protest, regardless of the

popularity of the protesters or their cause. Because this case is

about only whether Congress can protect clinics engaged in the

lawful provision of reproductive health services from physical

disruption, our decision does not signal a weakening of those

First Amendment protections.

Buried in one sentence of appellants’ brief is their argument

that the Access Act violates the Fifth Amendment’s equal

protection guarantee. According to appellants, since the statute

allows labor but not anti-abortion picketing, it limits a particular

form of social protest. Because anti-abortion activists are not

a suspect class, and because the Access Act infringes upon no

constitutionally protected rights, see Part III supra, we ask only

whether Congress had a rational basis for prohibiting violent or

Z2la

obstructive acts committed with intent to interfere with the

provision of lawful medical services. For the same reasons that

the Access Act survives appellants’ First Amendment

challenges, it clearly passes this more deferential test.

We turn finally to appellants’ argument that the district

court should not have granted the Government’s Rule 12(c)

motion because outstanding questions of fact precluded

judgment on the pleadings. Specifically, they claim that the

district court disregarded evidence that the Government has

interpreted the Access Act to “proscribe[ ]” protesting,

picketing, leafletting, singing, chanting, and the like, and that

the Attorney General has attempted to enjoin anti-abortion

protesters from engaging in those activities near abortion

clinics. This argument ignores the Government’s answers to

appellants’ requests for admission, where the Government

Stated, under oath, that none of appellants’ First Amendment

activities violates the Access Act.

Appellants’ argument also comes perilously close to

misstating the record. In one of the cases they rely on to

support their claim that the Government is using the Access Act

to punish First Amendment activity, the Government filed suit

against several anti-abortion protesters who had stalked and

threatened clinic employees and who had welded themselves

inside cars blocking access to an abortion clinic. United States

v. Lindgren, No. A3-95-4 (D.N_D. complaint filed Jan. 18,

1995). That complaint targeted neither speech nor picketing.

Moreover, the remedy the Government sought—a 200-foot

buffer zone around the clinic and its employees—was intended

to protect protesters’ First Amendment rights while also

protecting the constitutional right to an abortion. /d. at 9-10.

22a

In each of the other three cases appellants rely on, the

Government prosecuted not speech, but only violent or

disruptive conduct: blocking access to a clinic by welding

protesters inside cars parked against clinic doors, Milwaukee

Women’s Med. Serv’s., Inc. v. Brock, Civ. No. 94-C-0793

(E.D. Wis. complaint in intervention filed Dec. 20, 1994) at 3;

and threatening, stalking, and assaulting clinic employees,

United States v. Smith, No. 74:95CV-0025 (N.D. Ohio

complaint filed Jan. 4, 1995) at 3-6, United States v. Dinwiddie,

No. 95-1101-CV-W-8 (W.D. Mo. complaint filed Jan. 1995) at

2. In each case, the requested relief included buffer zones

tailored to specific violations of the Access Act. See Smith,

Compl. at 7-8 (requesting injunctive relief including 50-foot

buffer zone around clinic and 25-foot buffer zone around

doctor’s home); Brock, Compl. at 5 (seeking injunctive relief

including 50-foot buffer zone around clinic); Dinwiddie (W.D.

Mo. temporary restraining order filed Jan. 6, 1995) at 7

(temporarily restraining defendant from locating within 500 feet

of any reproductive health facility within court’s jurisdiction).

See generally Madsen, 114 S. Ct. at 2527-28 (upholding

reasonably circumscribed buffer zones as remedy for violations

of the law by anti-abortion protesters). The cases relied on by

appellants thus fall far short of showing that the Government

uses the Access Act to “proscribe” protected speech. Those

cases involve a wholly separate question: whether courts sitting

in equity may enjoin activities that do not violate the Act as a

remedy for activities that quite clearly do violate the Act. That

question has no bearing here.

Appellants argue that the District Court also ignored

evidence that the Government was not applying the Act

evenhandedly. Although they claim that the Government has

refused to prosecute abortion clinic escorts and employees who

23a

assault and threaten anti-abortion protesters, appellants make no

selective enforcement allegation in their complaint, nor have

they amended their complaint to state such a claim. In ruling on

the Government’s Rule 12(c) motion, the district court properly

refused to consider evidence outside the scope of the complaint.

See Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C.

Cir. 1987) (Rule 12(c) requires movant to show, at close of

pleadings, that no genuine issue of material fact remains to be

resolved).

We affirm the judgment of the district court.

So ordered.

24a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RANDALL A. TERRY, et al.,

Plaintiffs,

v. Civil Action

No. 94-1154

JANET RENO and (HHG)

ERIC HOLDER,

Defendants.

[FILED Nov. 21, 1995]

MEMORANDUM

This action deals with the subject of activities engaged in by

opponents of abortions outside facilities where abortions and

other reproductive health services are performed. More

specifically, it addresses the issue of the constitutionality of a

federal law which restricts some of these activities. In that

respect, the instant action is the first to be decided in this

District. See infra.

The action is presently before the Court on the government's

Motion for Judgment on the Pleadings. Upon consideration of

the Motion, plaintiffs' Opposition thereto, the government's

Reply, plaintiffs’ Supplemental Memorandum, and the

government's Response, the Court has determined that the

25a |

government's motion should be granted.

The Freedom of Access to Clinics Act ("FACE") was

enacted by Congress in response to growing concern about

violent acts occurring outside of reproductive health facilities.

See generally S. Rep. No. 117, 103d Cong., Ist Sess. (1993).

The Act provides that certain penalties shall be imposed on

anyone who:

(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:

(3) intentionally damages or destroys the property of a

facility, or attempts to do so, because such facility provides

reproductive health services . . .

18 U.S.C. § 248(a) (1994). For a first offense, the penalty is a

fine and/or imprisonment of not more than one year, however,

if the offense is "exclusively a nonviolent physical obstruction,"

the maximum fine is $10,000 and the maximum length of

imprisonment is six months. Id. § 248(b). For a second or

subsequent offense, the penalty is a fine and/or imprisonment of

not more than three years. Id.

Plaintiffs, individuals opposed to abortion, brought this

action challenging the constitutionality of FACE. Plaintiffs have

participated in certain activities outside of various facilities that

provide abortions, including counselling individuals entering the

facilities, passing out literature, and engaging in prayers. They

challenge FACE on First, Fifth, Eighth, Tenth, and Fourteenth

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Amendment grounds. Plaintiffs also allege that FACE violates

the Religious Freedom Restoration Act ("RFRA"). Plaintiffs

seek declaratory and injunctive relief.

Defendants have moved to dismiss the action pursuant to

Rule 12(c). That rule provides that "[a}fter the pleadings are

closed but within such time as not to delay the trial, any party

may move for judgment on the pleadings." Fed. R. Civ. P.

12(c). “Rule 12(c) requires that the movant show, at the close

of the pleadings, that no material issue of fact remains to be

[re]solved, and that he or she is clearly entitled to judgment as

a matter of law." Haynesworth v. Miller, 820 F.2d 1245, 1249

n.11 (D.C. Cir. 1987)."

1. Plaintiffs argue that their complaint brings an "as

applied" challenge as well as a facial challenge, and on that

basis, they argue it is not amenable to disposition under Rule

12(c). To the contrary, such a challenge is subject to Rule 12(c)

if, at the close of the pleadings, no genuine issues of material

facts are in dispute. See Haynesworth, 820 F.2d at 1249 n.11.

Accepting all well-pleaded facts of plaintiffs' complaint as true,

see id., the Court finds no constitutional violations, as explained

infra.

Plaintiffs also argue that there is a factual dispute regarding

whether pro-life advocates are being subject to force or threats

of force by pro-choice "escorts" at clinics. They argue that any

physical response on the part of a pro-life advocate might

violate FACE. Plaintiffs made no reference whatever to these

activities in their original complaint, which has not been

amended; these allegations are thus outside of the scope of the

complaint. Under Rule 12(c), the Court may not consider

matters outside of the pleadings unless the Court treats the

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While no decision has been rendered in this Circuit, the

constitutionality of FACE has been addressed elsewhere by

several district courts and two Courts of Appeals.? Except for

motion as one for summary judgment. Under Rule 7(a), if no

counterclaim or cross-claim is pleaded in the answer, the

pleadings close with the answer, unless the court orders a reply

to be filed. See 2A James W. Moore, Moore's Federal Practice,

{] 12.15 at 12-137(1995). Accordingly, plaintiffs attempt to

expand their complaint in order to create a genuine issue of

material fact by alleging different facts and theories in their

Opposition than those presented in their complaint must fail.

See 5A Charles A. Wright and Arthur R. Miller, Federal

Practice and Procedure, § 1371 at 543 (1990) ("It is within the

court's discretion whether to accept extra-pleading matter on a

motion for judgment on the pleadings and treat it as one for

summary judgment."); see also Hal Roach Studios, Inc. v.

Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990) (if

trial court considers evidence outside of the pleadings, it must

treat rule 12(c) motion as a summary judgment motion).

Plaintiffs may not make allegations outside of the scope of their

complaint in order to avoid a Rule 12(c) dismissal. See United

States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991) (per

curiam) (under Rule 12(c), “[t]he district court may not look

beyond the pleadings").

2. Cheffer vy. Reno, 55 F.3d 1517 (11th Cir. 1995):

Woodall v. Reno, 47 F.3d 656 (4th Cir.), cert. denied, 115 S.

Ct. 2577 (1995); American Life League, Inc. v. Reno, 47 F.3d

642 (4th Cir.), cert. denied, 116 S. Ct. 55 (1995); United States

v. Lucero, 895 F. Supp. 1421 (D. Kan. 1995); United States v.

White, 893 F. Supp. 1423 (C.D. Cal. 1995); United States v.

28a

one district court in Wisconsin, United States v. Wilson, 880 F.

Supp. 621 (E.D. Wisc. 1995), the courts have uniformly agreed

that FACE is not constitutionality infirm. As elaborated below,

this Court agrees with the reasoning of the tribunals which have

upheld FACE, and it will therefore grant the government's

motion for judgment on the pleadings.

The heart of plaintiffs' claims is embodied in the First

Amendment. They argue that FACE violates their First

Amendment rights to freedom of speech, freedom of the press,

and freedom of assembly.

A. Freedom of Speech

Plaintiffs allege that FACE violates their freedom of speech

in several ways. They argue that FACE is overbroad and

vague; that it constitutes a prior restraint; that it does not serve

a compelling (or even a significant or permissible) government

interest; that FACE is not narrowly tailored and there are less

Dinwiddie, 885 F. Supp. 1286 (W.D. Mo. 1995); United States

v. Wilson, 880 F. Supp. 621 (E.D. Wisc. 1995); United States

v. Wilson, 1994 WL 777319 (E.D. Wisc. Nov. 30, 1994);

United States v. Brock, 863 F. Supp. 851 (E.D. Wisc. 1994);

United States v. Hill, 1994 WL 818202 (ND. Fla. Sept. 15,

1994); Riely v. Reno, 860 F. Supp. 693 (D. Ariz. 1994);

Cheffer v. Reno, 1994 WL 644873 (M.D. Fia. July 26, 1994),

affd, 55 F.3d 1518 (11th Cir. 1995); Cook v. Reno, 859 F.

Supp. 1008 (W.D. La. 1994); Council for Life Coalition v.

Reno, 856 F. Supp. 1422 (S.D. Cal. 1994); American Life

League, Inc. v. Reno, 855 F. Supp. 137 (E.D. Va. 1994), affd,

47 F.3d 642 (4th Cir.), and cert. denied, 116 S. Ct. 55 (1995).

29a

restrictive means available; that FACE is viewpoint- and

content-based; that there are insufficient alternative channels of

alternative communication; that FACE is an irrational and

unreasonable restraint on speech in a public forum; and that

FACE has a chilling effect because of its severe punishments

and uncertain application.

As a preliminary matter, it is necessary to stress what the

Act does and does not address. The Act prohibits injury,

intimidation, and interference, that is accomplished "by force

and threat of force or by physical obstruction." 18 U.S.C. §

248(a)(1) (1994). Indeed, it expressly provides that it shall not

be construed "to prohibit any expressive conduct (including

peaceful picketing or other peaceful demonstration) protected

from legal prohibition by the First Amendment." Id. §

248(d)(1). To put it another way, the Act regulates conduct,

not speech, unless such speech constitutes a threat of force.

See, e.g.. Cook, 859 F. Supp. at 1010 ("The statute does not

criminalize speech at all; rather, it regulates and proscribes

conduct that uses force, the threat of force, or physical

obstruction to achieve its objective."); see also United States v.

Lindgren, 883 F. Supp. 1321, 1330 (D.N_D. 1995) ("Congress

did not forbid harassment, rudeness, or intimidation, unless the

conduct constitutes ‘force, threat of force, or physical

obstruction."’). However, because "[t]he Act might incidentally

affect some conduct with protected expressive elements," it

must be examined under the First Amendment. American Life

League, 47 F.3d at 648.

The Fourth Circuit addressed First Amendment challenges

similar to those raised here in American Life League v. Reno.

The court first found that FACE was viewpoint and content

neutral, id. at 649-50, and it further held that the statute was not

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unconstitutionally overbroad or vague, and thus did not have a

"chilling" effect on protected speech. Id. at 652-53. The Court

applied the O'Brien’ test, and held that the Act's incidental effect

on speech from its regulation of conduct passed constitutional

muster.‘ Id. at 651-52. This Court substantially agrees with the

Fourth Circuit's analysis, and on that basis it rejects the

plaintiffs’ claims proffered on these grounds.

The Fourth Circuit also rejected arguments that FACE is

unconstitutional to the extent that its injunctive relief provisions

authorize prior restraints on speech. Woodall, 47 F.3d at 658.

Here again, this Court agreed with the Fourth Circuit that any

prior restraint challenges are premature in the absence of an

injunction against the plaintiffs. See id.

With respect to the plaintiffs’ remaining arguments, it is

simply not so that there are insufficient alternative channels of

alternative communication or that FACE is an irrational and

unreasonable restraint on speech in a public forum. Consistent

with the law, plaintiffs are fully able to communicate their

messages in a non-violent manner. See American Life League,

47 F.3d at 652. In short, this Court finds nothing in FACE to

be "irrational" or "unreasonable."

3. United States v. O'Brien, 391 U.S. 367 (1968).

4. In applying the O'Brien test, the Fourth Circuit held that

the Act furthered important or substantial governmental

interests, that the government's interests were unrelated to the

suppression of free expression, and that the Act was narrowly

tailored. 47 F.3d at 651-52.

B. Freedom of Press 31a

Plaintiffs also contend that the Act interferes with their

ability to distribute literature advancing pro-life views, and thus

infringes on the freedom of press. This argument totally lacks

merit. The Act prohibits the use of force, threats of force, and

physical obstruction only. It in no way prohibits plaintiffs from

peacefully distributing literature. See Cook, 859 F. Supp. at

1010.

C. Freedom of Assembly

Plaintiffs also maintain that FACE interferes with their nght

to assemble in a traditional public forum. To repeat once again,

that Act prohibits the use of force, threats of force, and physical

obstruction only. It does not in any manner prevent peaceable

assembly, as protected by the First Amendment. The Court

discerns no interference with plaintiffs' right to peaceable

assembly. Accordingly, the Court will grant defendants’ motion

for judgment on the pleadings on this count.

Plaintiffs’ other constitutional challenges include claims that

the Act violates the Fifth Amendment's Due Process and Equal

Protection Clauses and the Eighth Amendment's prohibition

against excessive fines and cruel and unusual punishment.

Plaintiffs also challenge Congressional authority to pass FACE.

Finally, plaintiffs argue that the Act violates the Religious

Freedom Restoration Act.

Plaintiffs' argument under the Due Process Clause is based

upon the assumption that FACE is both vague and irrational.

As the Court has held above, FACE is not unconstitutionally

vague, and therefore it does not violate due process. See Riely,

860 F. Supp. at 705 n.9. The Court also finds that FACE is a

rational and reasonable congressional response to growing

32a

concerns about violence at reproductive health facilities. Thus,

plaintiffs’ due process challenge must fail.

Plaintiffs also contend that FACE violates equal protection

because it is targeted at a particular social protest. Plaintiffs

point out in support of their argument that their protests are

subject to different burdens than protests by members of labor

movements, for example. Defendants, in their answer, "[a]dmit

that FACE does not apply to certain labor activities." The

Court first notes that plaintiffs are not members of a suspect or

quasi-suspect class. Because the Court concludes that FACE

does not infringe upon a constitutionally protected right, the

Act is subject to the rational basis test rather than a heightened

level of security. Riely, 860 F. Supp. at 706. The Court finds

this test to be amply met in light of the legislative history of the

Act. See id.”

Plaintiffs also contend that the punishment provisions of

FACE are disproportionate to the gravity of the offense, and

thus constitute an "excessive fine and amount to cruel and

unusual punishment, in violation of the Eighth Amendment."

As the Eleventh Circuit noted, such challenges to FACE are not

ripe in the absence of "the actual, or immediately impending,

imposition of the challenged form of punishment."* Cheffer, 55

5. Furthermore, even if strict scrutiny were to apply, the

Court agrees with the Riely Court that the strict scrutiny

standard would be satisfied as well. See id.

6. Specifically, the Eleventh Circuit held that the

appellants’ claims were not ripe because the court could not

"determine from the face of the Act what penalties will actually

be imposed," and because the "appellants have failed to show

33a

F.3d at 1523 (citing Askins v. District of Columbia, 877 F.2d

94, 97-99 (D.C. Cir. 1989)). Accordingly, this Court holds that

plaintiffs’ Eighth Amendment claims are not ripe for

consideration.’

Plaintiffs challenge the validity of FACE under the Tenth

Amendment, arguing that Congress lacked the power to pass

the Act under either the Commerce Clause, U.S. Const. art. I,

§ 8, or the Enforcement Clause, U.S. Const. amend. XIV, § 5.

Here again, the Eleventh Circuit decided this issue when it

addressed the power of Congress to pass FACE in light of the

recently decided Supreme Court decision, United States v.

Lopez, 115 S. Ct. 1624 (1995), which held that Congress

exceeded its authority under the Commerce Clause when it

passed the Gun-Free School Zones Act, 18 U.S.C. § 922(q).

Cheffer, 55 F.3d at 1520-21. This Court agrees with the

Cheffer Court that the Act "protects and regulates commercial

enterprises operating in interstate commerce." 55 F.3d at 1520.

Because the Act is a permissible exercise of congressional

power under the Commerce Clause, it does not violate the

Tenth Amendment. The Court therefore need not reach the

question of whether Congress also has authority to pass the Act

under the Fourteenth Amendment. See id. at 1521 n.7.

that the mere existence of the Access Act causes them

substantial hardship." 55 F.3d at 1524. -

7. Evenif these claims were ripe, the Court agrees with the

Riely Court that "the harshness of the penalties provided is

commensurate with the gravity of the proscribed conduct." 860

F. Supp. at 706.

34a

Plaintiffs' Fourteenth Amendment argument is based on an

assertion that FACE “empower{(s] the states to engage in

conduct violat[ing] . . . the First, Fourth, Fifth, Eighth, and

Tenth Amendments."* As the court in Riely noted, "none of the

other challenged provisions of FACE violate any of these

constitutional provisions." 860 F. Supp. at 708. This Court

agrees with the Riely Court that, as a result, "FACE does not

violate these constitutional provisions by authorizing the state

attorneys general to bring a civil action on behalf of individuals

injured by those acting in violation of FACE." Id. at 709.

Finally, Plaintiffs contend that FACE violates the Religious

Freedom Restoration Act ("RFRA"). RFRA provides that

"[g]overnment shall not substantially burden a person's exercise

of religion even if the burden results from a rule of general

applicability." 42 U.S.C. § 2000bb-1(a) (Supp. V 1993).

However also RFRA provides:

Government may substantially burden a person's exercise of

religion . . . if it demonstrates that application of the burden

to the person --

(1) is in furtherance of a compelling government

interest; and

(2) is the least restrictive means of furthering that

compelling governmental interest.

Id. § 2000bb-1(b). Assuming, arguendo, that plaintiffs have

demonstrated that FACE “substantially burdens" the exercise of

their religion, cf. Cheffer, 55 F.3d at 1522, this Court agrees

with the Fourth Circuit's conclusion in American Life League

8. The statute allows state attorneys general to institute

Proceedings on behalf of persons injured by conduct violating

FACE. 18 U.S.C. § 248(c)(3) (1994).

35a

that FACE furthers a compelling governmental interest by

sufficiently narrow means and thus does not violate RFRA. 47

F.3d at 656; see also Brock, 863 F. Supp at 866-67 (FACE

does not violate RFRA); Riely, 860 F. Supp. at 709 (same);

Council for Life Coalition, 856 F. Supp. at 1430-31 (same).

Accordingly, defendants are entitled to judgment on the

pleadings on this count as well.

For the above stated reasons, the Court concludes that

FACE does not violate either the Constitution or RFRA.

Accepting as true well-pleaded facts of the complaint,

defendants are entitled to judgment on the pleadings.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

36a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RANDALL A. TERRY, et al.,

Plaintiffs,

V. Civil Action

No. 94-1154

JANET RENO and (HHG)

ERIC HOLDER,

Defendants.

[FILED Nov. 21, 1995]

Upon consideration of defendants’ motion for judgment on

the pleadings, plaintiffs’ opposition, defendants’ reply and

plaintiffs’ supplemental memorandum in opposition, and for the

reasons set forth in the memorandum accompanying this order,

it is this 22nd day of November, 1995,

ORDERED that defendants’ motion for judgment on the

pleadings be and it is hereby GRANTED; and it is further

ORDERED that plaintiffs' motion to compel depositions

[#16] and defendants’ motions for protective orders [#14, 28]

are hereby DISMISSED as moot.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

37a

APPENDIX D

_ 1. Commerce Clause, U.S. Const., art. I, § 8, cl. 3

Section 8. [1] The Congress shall have Power . . . [3] To

regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes; . . .

2. U.S. Const. amend. I.

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a

redress of grievances.

3. U.S. Const. amend. V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in land or naval forces, or in

the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without

just compensation.

4. U.S. Const. amend. X

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.

38a

APPENDIX E

Title 18 U.S.C. § 248. Freedom of access to clinic entrances

(a) Prohibited activities.--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;

(2) 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 lawfully

exercising or seeking to exercise the First Amendment right of

religious freedom at a place of religious worship; or

(3) intentionally damages or destroys the property of a facility,

or attempts to do so, because such facility provides

reproductive health services, or intentionally damages or

destroys the property of a place of religious worship,

shall be subject to the penalties provided in subsection (b) and

the civil remedies provided in subsection (c), except that a

parent or legal guardian of a minor shall not be subject to any

penalties or civil remedies under this section for such activities

insofar as they are directed exclusively at that minor.

(b) Penalties.--Whoever violates this section shall--

(1) in the case of a first offense, be fined in accordance with this

title, or imprisoned not more than one year, or both; and

(2) in the case of a second or subsequent offense after a prior

conviction under this section, be fined in accordance with this

39a

title, or imprisoned not more than 3 years, or both;

except that for an offense involving exclusively a nonviolent

physical obstruction, the fine shall be not more than $10,000

and the length of imprisonment shall be not more than six

months, or both, for the first offense; and the fine shall,

notwithstanding section 3571, be not more than $25,000 and

the length of imprisonment shall be not more than 18 months,

or both, for a subsequent offense; and except that if bodily

injury results, the length of imprisonment shall be not more than

10 years, and if death results, it shall be for any term of years or

for life.

(1) Right of action.--

(A) In general.--Any person aggrieved by reason of the

conduct prohibited by subsection (a) may commence a civil

action for the relief set forth in subparagraph (B), except that

such an action may be brought under subsection (a)(1) only by

a person involved in providing or seeking to provide, or

obtaining or seeking to obtain, services in a facility that provides

reproductive health services, and such an action may be brought

under subsection (a)(2) only by a person lawfully exercising or

seeking to exercise the First Amendment right of religious

freedom at a place of religious worship or by the entity that

owns or operates such place of religious worship.

(B) Relief.--In any action under subparagraph (A), the court

may award appropriate relief, including temporary, preliminary

or permanent injunctive relief and compensatory and punitive

damages, as well as the costs of suit and reasonable fees for

attorneys and expert witnesses. With respect to compensatory

damages, the plaintiff may elect, at any time prior to the

40a

rendering of final judgment, to recover, in lieu of actual

damages, an award of statutory damages in the amount of

$5,000 per violation.

(2) Action by Attorney General of the United States.--

(A) In general.--If the Attorney General of the United States

has reasonable cause to believe that any person or group of

persons is being, has been, or may be injured by conduct

constituting a violation of this section, the Attorney General

may commence a civil action in any appropriate United States

District Court.

(B) Relief.--In any action under subparagraph (A), the court

may award appropriate relief, including temporary, preliminary

or permanent injunctive relief, and compensatory damages to

persons aggrieved as described in paragraph (1)(B). The court,

to vindicate the public interest, may also assess a civil penalty

against each respondent--

(i) in an amount not exceeding $10,000 for a nonviolent

physical obstruction and $15,000 for other first violations; and

(ii) in an amount not exceeding $15,000 for a nonviolent

_ physical obstruction and $25,000 for any other subsequent

violation.

(3) Actions by State Attorneys General.--

(A) In general.--If the Attorney General of a State has

reasonable cause to believe that any person or group of persons

is being, has been, or may be injured by conduct constituting a

violation of this section, such Attorney General may commence

a civil action in the name of such State, as parens patriae on

behalf of natural persons residing in such State, in any

appropriate United States District Court.

4la

(B) Relief.--In any action under subparagraph (A), the court

may award appropriate relief, including temporary, preliminary

or permanent injunctive relief, compensatory damages, and civil

penalties as described in paragraph (2)(B).

(d) Rules of construction.--Nothing in this section shall be

construed--

(1) to prohibit any expressive conduct (including peaceful

picketing or other peaceful demonstration) protected from legal

prohibition by the First Amendment to the Constitution;

(2) to create new remedies for interference with activities

protected by the free speech or free exercise clauses of the First

Amendment to the Constitution, occurring outside a facility,

regardless of the point of view expressed, or to limit any

existing legal remedies for such interference,

(3) to provide exclusive criminal penalties or civil remedies with

respect to the conduct prohibited by this section, or to preempt

State or local laws that may provide such penalties or remedies;

(4) to interfere with the enforcement of State or local laws

regulating the performance of abortions or other reproductive

health services.

(e) Definitions.--As used in this section:

(1) Facility.--The term "facility" includes a hospital, clinic,

physician's office, or other facility that provides reproductive

health services, and includes the building or structure in which

the facility is located.

(2) Interfere with.—The term "interfere with" means to restrict

a person's freedom of movement.

(3) Intimidate.—The term "intimidate" means to place a person

42a

in reasonable apprehension of bodily harm to him- or herself or

to another.

(4) Physical obstruction.--The term "physical obstruction"

means rendering impassable ingress to or egress from a facility

that provides reproductive health services or to or from a place

of religious worship, or rendering passage to or from such a

facility or place of religious worship unreasonably

difficult or hazardous.

(5) Reproductive health services.--The term "reproductive

health services" means reproductive health services provided in

a hospital, clinic, physician's office, or other facility, and

includes medical, surgical, counselling or referral services

relating to the human reproductive system, including services

relating to pregnancy or the termination of a pregnancy.

(6) State.-The term "State" includes a State of the United

States, the District of Columbia, and any commonwealth,

territory, or possession of the United States.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.