of this Court, the parties have briefed and argued the issue of whether the statute is unconstitutional on its face: it is defendants' contention that the Act violates the First, Eighth, Tenth, and Fourteenth Amendments and the Religious Freedom Restoration Act of 1993, and that Congress lacked the authority under the Commerce Clause to pass it. The issue is one of first impression in this Circuit.
Defendants make a number of First Amendment challenges to the Act. They first argue that FACE is void for vagueness because 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, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), and will have a chilling effect on peaceful expression in opposition to abortion. In support of their position, defendants note that the terms "force or threat of force," "physical obstruction," "injures," intimidates," "interferes," and "is or has been or ... from obtaining or providing" are not defined. Even terms that are defined are vague, say defendants, such as "interfere with" (defined as "to restrict a person's freedom of movement"), "intimidate" (defined as "placing a person on reasonable apprehension of bodily harm to him or herself or to another") and "physical obstruction" (defined as "rendering impassable ingress to or egress from a facility ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous"). The Courts of Appeals for the Fourth, Seventh, Eighth and Eleventh Circuits have held that the statute is not unconstitutionally vague, see United States v. Soderna, 82 F.3d 1370 (7th Cir. 1996); United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, 133 L. Ed. 2d 19, 116 S. Ct. 55 (1995), as have numerous district courts.
While I acknowledge that none of these decisions is binding on this Court, I am not persuaded, as defendants urge, that they were incorrectly decided. First, the definitions contained in the statute are sufficiently clear. Congress must be permitted the flexibility to define a prohibited act "with sufficient breadth to make the prohibition effective." See Soderna, 82 F.3d at 1377. Second, the undefined terms have passed constitutional muster in other statutory contexts. See, e.g., Cameron v. Johnson, 390 U.S. 611, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968) (upholding anti-picketing law containing the terms "obstruct," "unreasonably" and "interfere with").
Next, defendants claim that the law is overbroad because: (1) it reaches beyond "fighting words" or "imminent threats of lawless action;" (2) because it allows individuals to sue for harm to the speaker, such as a hunger strike; and (3) allows third parties to sue based upon their subjective fear that speech threatens bodily harm to another. Overbreadth doctrine is to be applied sparingly. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). As the Act prohibits only force, the threat of force, and physical obstruction, "it is difficult to see how the Act is substantially overbroad in relation to its legitimate scope of outlawing violence and barriers to access." American Life League, 47 F.3d at 653. See also Dinwiddie, 76 F.3d at 924 ("FACE prohibits only a limited range of activity. It is not even close to being overbroad."). Moreover, any "third party" who desires to bring an action due to concerns about harm to another must have standing to do so; the Act has not abrogated this requirement. See H.R. Rep. No. 306, 103d Cong. 2d Sess. 13 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 710.
Third, defendants contend that FACE impermissibly singles out anti-abortion speech. If this is correct, the statute is subject to strict scrutiny and must be necessary to serve a compelling governmental interest by the least restrictive means. See R.A.V. v. City of St. Paul, 505 U.S. 377, 395-96, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992). If, on the other hand, the Act is content and viewpoint neutral, it is subject to intermediate scrutiny, and must be narrowly tailored to serve a substantial interest. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989). A law is content and viewpoint neutral if it is justified "without reference to the content of the regulated speech." Madsen v. Women's Health Center, Inc., 512 U.S. 753, , 114 S. Ct. 2516, 2523, 129 L. Ed. 2d 593 (1994) (quoting Ward, 491 U.S. at 791). The stated purpose of FACE is "to protect and promote public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services." Pub. L. No. 103-259, § 2, 108 Stat. 694, 694 (1994). Furthermore, the Act by its terms may not 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." 18 U.S.C. 248(d)(1). Given this, I am confident that Congress' purpose was not to discriminate against a particular idea, but to prohibit particular conduct. The fact that this conduct may be motivated by a particular belief, or is more likely to be engaged in by persons who share a given ideology, does not shield it from regulation. See American Life League, 47 F.3d at 649-51; accord, Soderna, 82 F.3d at 1375-76; Dinwiddie, 76 F.3d at 924. See also Wisconsin v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993) (upholding statute providing enhanced penalties for selecting battery victim because of the victim's race); United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968) (upholding law prohibiting the burning of draft cards to protest the Vietnam War).
Having concluded that FACE is content neutral, I must determine (1) whether it furthers an important or substantial government interest; (2) whether that interest in unrelated to the suppression of free speech; and (3) whether the incidental restriction on First Amendment rights is not greater than is essential to the furthering of that interest. See O'Brien, 391 U.S. at 377. The Supreme Court has stated that the government "has a strong interest in protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy." Madsen, U.S. at , 114 S. Ct. at 2526. As I have determined that the Act is viewpoint and content neutral, the second prong of the O'Brien test is satisfied as well. Finally, the Act is narrowly tailored to further the governmental interest at issue:
Much of the conduct (force and violence) outlawed under the Act lacks any protected expressive element at all. Of course, peaceful but obstructive protesting, which plaintiffs argue has expressive elements, could run afoul of the Act. For example, protesters blocking a clinic door as they pray might violate the Act's prohibition on physical obstruction. However, such a violation would be simply a consequence of the government's lawful aim to protect access to reproductive health services. After all, the Act 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 653; accord, Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22.
Defendants also assert, citing Madsen, U.S. at , 114 S. Ct. at 2524, that even if FACE is content and viewpoint neutral, it should be subject to heightened scrutiny because it is not a generally applicable law. Defendants reliance on Madsen is misplaced. Madsen concerned not a statute, but an injunction against certain activities of particular protestors; in such a situation the greater danger of censorship calls for a greater level of scrutiny.
Defendants final First Amendment challenge to the statute implicates the Free Exercise Clause. Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993) (invalidating ordinance which outlawed animal sacrifice but not, e.g., hunting or fishing), defendants assert that "by definition opposing abortion is a form of religious exercise," and that "in the vast majority of cases, only those expressing their religious beliefs or convictions will be effected [sic] by FACE." The Act, however, "punishes conduct for the harm it causes, not because the conduct is religiously motivated." American Life League, 47 F.3d at 654.
Defendants next challenge the validity of FACE on Eighth Amendment grounds. The Act provides:
(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