The opinion of the court was delivered by: LARIMER
The eleven defendants in this action are charged in an information with violating the Freedom of Access to Clinic Entrances Act ("FACE" or "the Act"), 18 U.S.C. § 248. In pertinent part, FACE provides penalties for anyone who "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." 18 U.S.C. § 248(a)(1). The Act defines "interfere with" as meaning "to restrict a person's freedom of movement," and "intimidate" as "to place a person in reasonable apprehension of bodily harm to him- or herself or to another." 18 U.S.C. §§ 248(e)(2), 248(e)(3).
Defendants are anti-abortion activists who were arrested on December 7, 1996, outside a facility operated by Planned Parenthood of Rochester and the Genesee Valley Inc. on University Avenue in Rochester, New York. One of the defendants, Norman Weslin, has moved to dismiss the information on the ground that FACE is unconstitutional.
I. First Amendment Free Speech Clause
Defendant Weslin contends that FACE violates his right to freedom of speech under the First Amendment to the United States Constitution. He maintains that the Act is an impermissible content-based regulation because it is aimed at speech and expressive conduct that is intended to prevent persons from providing or obtaining reproductive health services.
Although the Second Circuit has not yet addressed the issue, there is a substantial body of case law involving challenges to the Act, including challenges based on the Free Speech Clause. Nearly all the reported cases that have addressed these arguments have held that the Act does not unconstitutionally impinge on freedom of speech, and I reach the same conclusion.
At the outset, it should be noted that the "Act does not target protected speech. It prohibits three types of conduct: use of force, threat of force, and physical obstruction." Terry v. Reno, 322 U.S. App. D.C. 124, 101 F.3d 1412, 1418 (D.C. Cir. 1996), petition for cert. filed, 65 U.S.L.W. (U.S. Mar. 10, 1997) (No. 96-1425). The court in Terry noted that the Supreme Court has ruled that the government can constitutionally punish all three of those types of conduct. Id. at 1418-19 (citing Wisconsin v. Mitchell, 508 U.S. 476, 484, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993) (physical assault "is not by any stretch of the imagination" protected conduct); Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 773, 129 L. Ed. 2d 593, 114 S. Ct. 2516 (1994) (threats are proscribable under First Amendment); Cameron v. Johnson, 390 U.S. 611, 617, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968) (government may punish physical obstruction that makes passage impossible or unreasonably hazardous)).
To the extent that the Act may have some effect on expressive conduct, a threshold question for determining its constitutionality is whether the Act is "content-based," i.e., whether it regulates speech or conduct "based on hostility--or favoritism--towards the underlying message expressed." R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992). If so, the statute is unconstitutional unless it survives strict scrutiny, which requires the government to prove that the statute "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). If the statute is content-neutral, however, it need not survive strict scrutiny. If a content-neutral statute burdens expressive conduct, it must be subjected to intermediate scrutiny, under which a statute will be upheld "if it 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." United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968).
Applying this analysis, I find that FACE is content-neutral, and is therefore subject to intermediate rather than strict scrutiny. In United States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 136 L. Ed. 2d 538, 117 S. Ct. 613 (1996), the Eighth Circuit discussed this issue at some length. Finding the Act to be content-neutral, the court observed that "rather than imposing a content-based restriction on speech, FACE's proscription of 'threats of force' that 'place a person in reasonable apprehension of bodily harm' regulates speech that is not protected by the First Amendment." Id. at 922 (quoting 18 U.S.C. §§ 248(a)(1), 248(e)(3)). The court rejected the defendant's argument that the Act is content-based insofar as it only proscribes conduct engaged in "because" another person is obtaining or providing reproductive health services, stating that "FACE's motive requirement does not discriminate against speech or conduct that expresses an abortion-related message. Thus, FACE would prohibit striking employees from obstructing access to a clinic in order to stop women from getting abortions, even if the workers were carrying signs that said, 'We are underpaid!' rather than 'Abortion in wrong!'" Id. at 923. The motive requirement, the court observed, simply "filter[s] out conduct that Congress believes need not be covered by a federal statute," such as random crimes that might happen to occur in the vicinity of an abortion clinic. Id. The fact that most of the persons who violate the Act may oppose abortion, the court said, also did not transform FACE into a content-based statute. A group of persons cannot render a statute unconstitutional by violating it more than other people, the court reasoned, since "there is no disparate-impact theory in First Amendment law." Id. See also Terry, 101 F.3d at 1419 ("That the majority of those whose conduct the statute punishes probably oppose abortion does not call the statute's neutrality into question"); United States v. Soderna, 82 F.3d 1370, 1376 (7th Cir.) (defendants "cannot obtain constitutional immunity by violating a statute more frequently than any other group"), cert. denied, 117 S. Ct. 507, 136 L. Ed. 2d 398, 1996 U.S. LEXIS 7166 (1996).
In American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 133 L. Ed. 2d 19, 116 S. Ct. 55 (1995), the Fourth Circuit likewise held that the Act is content-neutral. In reaching that decision, the court noted that "the neutrality inquiry does not focus on the motive of the violator," but on Congress's purpose in enacting the statute. Id. at 649. The court said that the Act's "unambiguous provisions do not target any message based on content or viewpoint," and that FACE "punishes anyone who engages in the prohibited conduct," regardless of that person's viewpoint. Like the court in Dinwiddie, the court also held that "the 'because' or motive element does not render the Act content or viewpoint based. ... The Act's motive requirement simply narrows its reach, and this narrowing is within congressional prerogative." Id. at 650. The court noted that various statutes that prohibit discrimination or other injurious acts because of the victim's race, sex, age, participation in certain federal programs, and other factors, have all been held constitutional by the Supreme Court. Id. (citing cases).
In support of his contention that FACE is content- or viewpoint-based, defendant relies upon the Supreme Court's decision in R.A.V., 505 U.S. 377, 112 S. Ct. 2538; 1992 U.S. LEXIS 3863; 120 L. Ed. 2d 305, in which the Court invalidated a Minnesota ordinance that made it a misdemeanor for anyone to place on public or private property any object or symbol "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender ..." That ordinance is clearly distinguishable from FACE, however, because FACE "targets not expression, but conduct." Terry, 101 F.3d at 1420. The court in Terry noted that in Wisconsin v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993), which upheld a Wisconsin statute that enhanced the sentence for aggravated battery if the aggressor intentionally selected his victim because of the victim's race, religion, or certain other characteristics, the Supreme Court distinguished that statute from the ordinance struck down in R.A.V. The Court pointed out that the ordinance in R.A.V. explicitly targeted expression--"'fighting words' that insult, or provoke violence 'on the basis of race, color, creed, religion, or gender'"--whereas the Wisconsin statute targeted conduct unprotected by the First Amendment. Mitchell, 508 U.S. at 487. The court in Terry found FACE to be indistinguishable for purposes of free-speech analysis from the statute upheld in Mitchell. Terry, 101 F.3d at 1420. See also Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists, 945 F. Supp. 1355, 1376 (D.Or. 1996) ("Unlike the ordinance in R.A.V., FACE is not viewpoint-based because it prohibits all conduct regardless of the violator's viewpoint so long as that conduct is directed towards a person merely because that person obtains or provides reproductive health services").
I agree with the reasoning of these cases, and conclude that FACE is content-neutral. That does not end the inquiry, however, for despite its content-neutrality, the Act does burden some expressive conduct, such as peaceful but obstructive picketing. Dinwiddie, 76 F.3d at 923; American Life League, 47 F.3d at 648. The Act is therefore subject to intermediate scrutiny.
Many courts have noted that the Act furthers several important or substantial governmental interests. See, e.g., Terry, 101 F.3d at 1419 (FACE "furthers several important government interests," including ensuring access to, and protecting the constitutional right to obtain, lawful health services and protecting women's constitutional right to seek abortions and other pregnancy-related treatment); Dinwiddie, 76 F.3d at 924 ("FACE furthers the government's interest in protecting women who obtain reproductive-health services and ensuring that reproductive-health services remain available"); American Life League, 47 F.3d at 651-52 (FACE furthers several important interests, including protecting public health, safety and commerce, and protecting women and men from violence and threats in the exercise of their rights); Planned Parenthood Ass'n of Southeastern Pennsylvania, Inc. v. Walton, 949 F. Supp. 290, 293 (E.D.Pa. 1996) (FACE furthers government's ...