73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982). Thus, like the statute that was upheld on first amendment grounds in Wisconsin v. Mitchell, FACE is aimed at conduct, not expression.
Plaintiffs attempt to argue that FACE penalizes "anyone who 'injures' anyone involved in the abortion process," and that because their demonstrations, prayers, distribution of materials, and sidewalk-counselling may inflict emotional and psychological "injuries," these activities are proscribed by FACE. (Memorandum of Points and Authorities in Support of Plaintiff's Application for Preliminary Injunction at pp. 8-11) ("P. Brief"). However, plaintiffs misread the statute. FACE does not apply to "anyone who 'injures' anyone involved in the abortion process." Instead, FACE criminalizes the use of "force" the "threat of force" and "physical obstruction" which are acts that are outside the scope of the first amendment's protections. Thus, those peaceable activities engaged in by plaintiffs that are not accompanied by the use of force, the threat of force, or physical obstruction, are not proscribed by FACE.
Plaintiffs further contend that FACE imposes content-based and viewpoint-based restrictions on protected expression because it applies only to conduct intended to injure, intimidate, or interfere with a person who seeks to obtain or provide reproductive health services, and not to conduct intended to injure, intimidate, or interfere with a person for any other reason. They argue that FACE is unconstitutional because it singles out for special punishment acts committed in the course of anti-abortion protests.
However, nothing in the plain words of the statute supports plaintiffs' arguments here. FACE applies to "whoever" engages in the prohibited conduct, with the requisite intent to injure, intimidate or interfere with "any person" who is entering a facility to obtain reproductive health services or providing such services. Moreover, the broad statutory definition of "reproductive health services" to include "counselling or referral services relating to the human reproductive system" encompasses more than just abortion clinics. Thus, although the statute is subject-specific, it is viewpoint neutral.
The fact that FACE singles out for punishment violence at reproductive health facilities or against those who provide and obtain abortion services does not render the statute discriminatory on the basis of content. The key inquiry in determining whether a statute is content-neutral is "whether the government has adopted a regulation of speech 'without reference to the content of the regulated speech.'" Madsen v. Women's Health Center, Inc., 94 Daily Journal D.A.R. 9272, 9276 (U.S. Sup. Ct. June 30, 1994) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989)). In making this determination, the threshold consideration is the government's purpose in enacting the legislation. Id.
Here, it is evident from the legislative record that the decision of Congress to prohibit violent conduct at abortion facilities or against those who provide and seek abortion services reflects Congress' concern over the severe impact of that violence, rather than a desire to curb any anti-abortion message some people wish to convey. Thus, as the Supreme Court held in Wisconsin v. Mitchell, the State's desire to redress particular harms "provides an adequate explanation for the particular statute over and above mere disagreement with the offenders' beliefs or biases." 113 S. Ct. at 2201.
In addition, FACE's intent element does not restrict any type of message and, like the motive element under the Wisconsin statute upheld by the U.S. Supreme Court in Wisconsin v. Mitchell, it "plays the same role under [FACE] as it does under federal and state antidiscrimination laws, which [the Supreme Court has] previously upheld against constitutional challenge." 113 S. Ct. at 2200. E.g., Roberts v. United States Jaycees, 468 U.S. at 628.
Much of plaintiffs' first amendment challenge to FACE is directed toward FACE's prohibition against the "threat of force" to intimidate or interfere with access to reproductive health services. However, in this regard, the Court notes that FACE is similar to numerous criminal statutes that prohibit intimidating or interfering with a person engaged in an activity of some federal interest. E.g., 18 U.S.C. § 112(b) (making it unlawful to "intimidate, coerce, threaten, or harass a foreign official . . . in the performance of his duties"); 18 U.S.C. § 245(b) (providing that one who "by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with -- any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from [exercising certain designated rights]" violates the law); 18 U.S.C. § 372 (making it unlawful to "conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office"); 18 U.S.C. § 871(a) (criminalizing threats of violence made against the President or Vice President); 26 U.S.C. § 7212(a) (prohibiting attempts to interfere with internal revenue laws by one who "corruptly or by force or threats of force (including any threatening letter or communication)" endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity).
Despite the ancillary impact that these statutes may have on a defendant's speech or expressive conduct, courts have consistently upheld such statutes against first amendment challenge. E.g., Watts v. United States, 394 U.S. 705, 707-08, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969) (finding 18 U.S.C. § 871(a) constitutional on its face and distinguishing "a threat . . . from what is constitutionally protected speech").
As the Supreme Court held in R.A.V. v. St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), such laws do not violate the first amendment, even though a defendant may be expressing a message while engaged in the proscribed conduct, because the "government [has] not targeted conduct on the basis of its expressive content." Id. at 2546-47. Persons who interfere with access to reproductive health services "are not shielded from regulation merely because they express an . . . idea or philosophy." Id. at 2547. Similarly, as the Ninth Circuit observed in United States v. Gilbert, 813 F.2d 1523 (9th Cir.), cert. denied, 484 U.S. 860, 98 L. Ed. 2d 127, 108 S. Ct. 173 (1987):
If conduct contains both speech and non-speech elements, and if Congress has the authority to regulate the non-speech conduct, incidental restrictions on freedom of speech are not constitutionally invalid.
813 F.2d at 1529.
Plaintiffs rely heavily on R.A.V. v. St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992) which invalidated a city ordinance that explicitly barred any "symbol," "appellation," or "graffiti" that expressed hostility based on race, color, creed, or gender. However, as the U.S. Supreme Court observed in Wisconsin, there is a distinction between invalid laws explicitly directed at protected expression, such as the city ordinance reviewed in R.A.V., and valid laws aimed at unprotected conduct as is the case here. Thus, the Court held, "whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., 'speech' or 'messages') [the Wisconsin statute] is aimed at conduct unprotected by the First Amendment." 113 S. Ct. at 2201 (citations omitted).
Plaintiffs further argue that FACE is overbroad because it reaches peaceable and constitutionally-protected activities in which they engage to dissuade women from having abortions. Plaintiffs contend that such activities conceivably might cause psychological injury to these women, and therefore be proscribed under FACE. Plaintiffs further allege that FACE is unconstitutionally "vague" and fails to give them fair notice of whether it prohibits the conduct they contemplate.
In a facial challenge such as here, a law is deemed "overbroad" only where it reaches a "'substantial amount of constitutionally protected conduct.'" Houston v. Hill, 482 U.S. 451, 458, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987) (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982)). This requires the court to find either that "'every application of the statute create[s] an impermissible risk of suppression of ideas'" or "'a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.'" New York State Club Association v. New York, 487 U.S. 1, 11, 101 L. Ed. 2d 1, 108 S. Ct. 2225 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 801, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984)). Plaintiffs thus must demonstrate from the text of FACE and from actual fact that a substantial number of instances exist in which FACE cannot be applied constitutionally. Id., 487 U.S. at 14. Absent such a showing, whatever overbreadth may exist can be cured through case-by-case analysis of the fact situations to which FACE's prohibitions may not be applied. Id.
Plaintiffs contend that a "plausible reading" of several FACE provisions "is that they may be violated by the very things pro-life protesters and counsellors try to do every day on the streets and sidewalks outside clinics," and that these provisions have an "impermissible chilling effect" upon the exercise of first amendment rights. (P. Brief at pp. 19-20).
Here, the Court concludes that plaintiffs have failed to carry their burden of demonstrating that FACE reaches a substantial amount of protected conduct. FACE does not apply to a substantial amount of protected conduct in that by its terms, it is directed at unprotected conduct, and not speech, and plaintiffs have failed to cite sufficient factual scenarios which convince the Court that FACE could potentially reach protected conduct. Where, as here, "conduct and not merely speech is involved . . . the overbreadth . . . must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). E.g., Cameron v. Johnson, 390 U.S. 611, 617, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968) (rejecting similar overbreadth challenge to statute that like FACE, prohibits obstruction of access to specified facilities).
The Court also finds that FACE is not unconstitutionally vague. In order to be unconstitutionally vague, the statute must be "impermissibly vague in all of its applications." Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. at 499. A statute is unconstitutionally vague only if people "'of common intelligence must necessarily guess at its meaning.'" Hynes v. Oradell, 425 U.S. 610, 620, 48 L. Ed. 2d 243, 96 S. Ct. 1755 (1976) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926)).
Here, not only does FACE include specific definitions for such key terms as "intimidate," "interfere," and "physical obstruction," most of the operative words come from other statutes which the U.S. Supreme Court and other courts have construed and found not unconstitutionally vague. Thus, for example, in Cameron v. Johnson, the Court held that a state statute prohibiting "picketing or mass demonstrations in such a manner as to obstruct or unreasonably interfere with free ingress or egress" was not unconstitutionally vague. 390 U.S. at 612 n.1, 616; see also Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).
Similarly, in United States v. Gilbert, the Ninth Circuit held that the Federal Fair Housing Act's prohibition against the use of "force or threat of force" to injure, intimidate or interfere with anyone who is lawfully aiding or encouraging others in "occupying . . . any dwelling" was not unconstitutionally vague. 813 F.2d at 1530. Indeed, the Ninth Circuit observed even more broadly that "legislation which proscribes the use of force or the threat of force should not be found to be void for vagueness." Id.
Finally, plaintiffs contend that FACE's provision allowing the recovery in a civil action against violators of $ 5,000 in statutory damages is unconstitutional under NAACP v. Claiborne Hardware Co., 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982), because the damages may be assessed against protected conduct. However, not only has the Court determined that FACE does not apply to protected conduct, plaintiffs' argument here also fails because it is wholly speculative and is more properly raised in the context of an actual dispute in which a plaintiff attempts to invoke this provision in connection with particular conduct.
B. Free Exercise Clause and Religious Freedom Restoration Act
Plaintiffs argue that FACE violates their rights under the free exercise clause of the first amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq.
A law that is neutral toward religion and is generally applicable does not offend the free exercise clause, even if it has an incidental effect on religious practice. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 124 L. Ed. 2d 472, 113 S. Ct. 2217, 2226 (1993). The Court finds that plaintiffs' strained attempts to cast FACE as a law that is not neutral towards religion are unavailing. Not only does the text of FACE itself refute any such suggestion, there is nothing in FACE's legislative history that supports the conclusion that Congress enacted the statute for an impermissible religious purpose. The statute prohibits certain conduct regardless of whether religious conviction motivated the actor, and it neither favors certain religions over others nor favors no religion over religion.
The Religious Freedom Restoration Act provides in pertinent part: