10.

Constitutional Challenges to FACE

Defendants commonly raise the following constitutional challenges to FACE: (1) the enactment of FACE exceeded Congress' authority under the Commerce Clause; (2) the enactment of FACE exceeded Congress' authority under section 5 of the Fourteenth Amendment; (3) the conduct at issue is protected by the First Amendment; and (4) FACE is not content and viewpoint neutral. Every Court of Appeals that has addressed the question whether FACE is a valid exercise of Congress' Commerce Clause authority has upheld the statute. See Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C. Cir. 1996); United States v. Soderna, 82 F.3d 1370, 1373 (7th Cir. 1996), cert. denied sub nom Hatch v. United States, __ U.S. __, 117 S.Ct. 508 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995) (upholding Access Act under Commerce Clause), pet. for cert. filed sub nom. Skott v. United States, No. 95-1523 (U.S.); United States v. Dinwiddie, 76 F.3d 913, 919-921 (8th Cir. 1996); Cheffer v. Reno, 55 F.3d 1517, 1519-1521 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d 642, 647 (4th Cir.), cert. denied, 116 S.Ct. 55 (1995). See also United States v. Weslin, 1997 WL 251466, *6 (W.D.N.Y. 1997); Planned Parenthood Association of Southeastern Pennsylvania, Inc. v. Walton, 949 F. Supp. 290, 295-96 (E.D. Pa. 1996); United States v. Roach, 947 F. Supp. 872, 876 (E.D. Pa. 1996); United States v. Scott, 958 F. Supp. 761, 778 (D. Conn. 1997); Planned Parenthood of the Columbia/Williamette, Inc. v. American Coalition of Life Activists, 945 F. Supp. 1355, 1374-75 (D. Ore. 1996); United States v. McMillan, 946 F. Supp. 1254 (S.D. Miss. 1995); United States v. White, 893 F. Supp. 1423 (C.D. Cal. 1995); Riely v. Reno, 860 F. Supp. 693, 707-708 (D. Ariz. 1994); Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1430-1431 (S.D. Cal. 1994); United States v. Lucero, 895 F. Supp. 1421 (D. Kan. 1995); Cook v. Reno, 859 F. Supp. 1008, 1011 & n.2 (W.D. La. 1994); United States v. Hill, 893 F. Supp. 1034 (N.D. Fla. 1994). Only two district courts have ruled that Congress lacked authority under the Commerce Clause to enact the statute. One of those decisions, United States v. Wilson, 880 F. Supp. 621 (E.D. Wis. 1995), was reversed on appeal, Wilson, 73 F.3d 675, and the other, Hoffman v. Hunt, 1996 WL 1929 (W.D.N.C. Apr. 17, 1996 (appeal pending, Nos. 96-1581 & 96-1582 (4th Cir.)), is contrary to precedent in its own district. Second, section 5 of the Fourteenth Amendment grants Congress power to "enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment. The Department's appellate brief in Wilson, supra, sets forth the arguments supporting Congress' authority under section 5 of the Fourteenth Amendment to enact FACE. Third, the conduct prohibited by FACE is not protected by the First Amendment. Defendants may not invoke the First Amendment to immunize "intimidating," "injurious," or "interfering" conduct because they happen to have or share a particular viewpoint about abortion. See, e.g., Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1426 (S.D. Cal. 1994). Furthermore, any injunction granted will fall within the Madsen v. Women's Health Center, Inc., 114 S.Ct. 2516 (1994) standard; it will "burden[] no more speech than necessary to serve a significant government interest." Madsen, 114 S.Ct. at 2525. (It should be noted that the statute itself states that it should not be construed to prohibit conduct protected by the First Amendment. 18 U.S.C. § 248(d)(1).) Finally, FACE is both content and viewpoint neutral. See, e.g., American Life League v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 116 S.Ct. 55 (1995); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995). FACE regulates conduct, not speech, and serves substantial government interests in preventing violence and threats, preserving public access to health care, and protecting women's exercise of their constitutional rights. FACE is justified not by reference to the content of any expressive activities that it might incidentally affect, but by the need to prevent violence, preserve access to health care, and protect the exercise of constitutional rights. [updated February 1998] [cited in Civil Rights Resource Manual 7]