There are discipHnes before medical boards and other kind of ac-
tivities that they are engaged in. If you should inform someone of
this kind of record and they should suddenly feel that it was a dan-
gerous matter to have a procedure by this doctor, have you intimi-
dated them to the sense that you have placed them in a reasonable
apprehension of injury?

Now, surely it could have been no one's intention to have prohib-
ited that communication. Or was it? It does meet the requirements,
since there is an intent requirement and since there is a require-
ment that you be involved in causing the injury.

The same thing is the problem with the term to interfere with.
If you recall from Mr. Patrick's statement, he said that, gee, that
they had not defined the level of movement that had to be trans-
gressed, forward movement that had to be stopped, in order to con-
stitute a violation of FACE. And that was one of the problems that
was — that creates one of the constitutional problems. Because he
said it has to be a significant interference, which seems to me a
good, prudential standard to avoid problems, but that language is
not necessarily in FACE. It is a reasonable and good-faith effort to
limit FACE by imposing the requirement that it be significant.

But he did concede by his statement, I believe, that almost any
delay, even occasioned by purely free speech activity, might be suf-
ficient enough to facially trigger FACE. And that would be a seri-
ous constitutional problem, and it would be one that prosecutors
would be concerned with.

Mr. SCHUMER. OK Thank you. Professor Broadus.

[The prepared statement of Mr. Broadus follows:]



109



The Statement of

Professor Joseph E. Broadus

George Mason University

School of Law

Before the Subconunittee on Crime and Criminal Justice,

of the House Judiciary Committee

Concerning Constitutional Implications of

the Application of FACE (Freedom of Access to

Clinic Entrances )

September 22, 1994



Mr. Chairman, First I wish to thank the Committee for the
opportunity to appear here today and to share my views on the
constitutional implications concerning implementation of the
Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. Sec.
24 8 ( FACE ) .

The tendency in addressing problems of constitutional
safeguards is frequently to view the process as a technical
exercise identifying an interest and the appropriate analysis.
The rest may be mistaken for intellectual clockwork. The real
task is more demanding. It is the problem of assessing the impact
of government regulation on the freedom of the people and our
prospects for good government.

Seldom are these concerns as sharp as when the twin interests
of freedom of religion and of speech safeguarded by the first
amendment are present in a controversy. On the personal freedom
ledger, the real issue presented by FACE is whether in some
significant way it burdens the spiritual lives of Americans
without a countervailing social gain. The question from the



85-352 0-95-5



no



2

political or free speech side is whether this law permits the
government to employ the great weight of its bureaucratic
processes to crush critics of a policy popular in powerful
circles but less so among some significant segment of the people.

Two key aspects of our traditions and shared public life are
put at issue by FACE. Our tradition of robust public discussion,
including a generous toleration for the disruptions occasioned by
civil disobedience ; and our deep rooted distrust of governmental
over reaching and censorship.

Proponents of FACE have argued that it is a narrowly targeted
criminal provision designed to address the serious problem of
growing violence associated with abortion clinic protests. This
view clashes sharply with that of opponents who charge that
FACE'S true intent is to silence critics of unpopular policies by
imposing draconian penalties that entrap violent and non-violent
conduct burdening social and political process.

I must add my voice to those who see in FACE a very
disturbing trend. A ruling elite determined not to engage in
debate but to impose political correctness through the use of
coercive civil or criminal sanctions. This process is one that
undermines not only individual freedom bus reduces the prospects
for good government .



Ill



3

Because of the relative newness of this statute analysis must
be either facial or depend upon an evaluation cf-the political
environment that produced FACE and of other si-ilar trends
visible and of concern. Even a facial readme appropriately
informed in the total circumstances of FACE'S enactm.ent raises
serious questions as to whether the provision could ever
contribute to its stated objective.

The key constitutional questions concerning FACE are: 1.)
Whether FACE proscribes constitutionally protected speech or
expressive activities; 2.) Whether FACE imposes content -based
restrictions on protected speech or expressive activities; 3.)
Whether face is constitutionally vague or over broad. A second
set of questions relate to special consideration produce by the
requirements of the Religious Freedom Restoration Act, 42 U.S.C.
2000bb, et. seq.

The Religious Freedom Restoration Act

The Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb,
et . seq. was enacted by Congress in order to reverse the U.S.
Supreme Court's holding Employment Division v. Smith, 4 94 U.S.
872 (1990). Smith had displaced the compelling state interest
test and permitted legislatures to freely enact laws which had
serious adverse impact on religious freedom as long as the
measures were not enacted with the specific purpose of wounding
religion .



112



4

In enacting RFRA, Congress proposed to instruct the courts to
return to the older practice of reviewing impact claims under the
compelling state interest test. This requires that the state
both have a compelling interest for legislation, and that the
method elected be narrowly crafted to achieve the objective. RFRA
applied to all subsequently enacted federal statutes unless
Congress explicitly excludes the provision from coverage. 42
U.S.C. 2000bb-3 (b) .
Language Problems

FACE'S language has been described as a mix of the worst
features of a series of other civil and criminal provisions.
The language over reaches to chill protected activities. Recent
court decisions suggest the courts may limit these prospects.
However, the same decisions can be read to suggest that the
courts are insensitive to serious First Amendment problems

In Riley v. Reno, CIV-94-1058-PHX-RGS, 1994 U.S. Dist . LEXIS
11463, the court rejected a claim that FACE violated REFRA. But
in the process the court demonstrated the massive insensitivity
to free exercise that REFRA was intended to redress.

The court held that the plaintiff had failed to set out a
claim under REFRA because they had not argued that their religion
advocates the use of force or threats of force or physical
obstruction of a clinic. In addition. Judge Strand held that



113



5

without analysis that FACE both was supported by a compelling
state interest and was narrowly crafted.

The court failed to give adequate weight to the fact that the
expressive conduct at issue was motivated by deeply held moral
and religious convictions concerning abortion. The case was rear
in that Judge Strand appears to be perhaps the only judge or
perhaps person in America unaware of the nexus between religious
belief and practice and pro-life protest.

Riley appears to require that the tenets of a particular creed
be identified as the motivating factor. This, however, is itself
an overly narrow reading of first amendment law. It was only
necessary to identify conduct that was motivated by some
sincerely held set of central moral beliefs that motivated the
contested conduct.

Once that link between prohibited action and religion is
established the court should be obligated to examine the
appropriateness of the methods employed by the statute; and the
impact of the state's chosen method on religious practice. This
require both analysis and balancing of interest with a very heavy
burden imposed on the state.

Perhaps, the key question under FACE is not whether the state
can impose some penalty on religiously motivated conduct but
whether it can impose a disproportionate penalty on conduct



114



6

which is largely expressive. RFRA xay oe seer, zz nave tihe effect:
of r.ot: only limiting the state's substantive ability to regulate
reliaiously motivated conduct but tc impose special limits on the
ability of the state to impose a limit on tne penalties that may
be imposed for religiously motivated conduct.



Judge Strand fails to analyze separately the issues of
whether the impact of the penalties under FACE is to impose an
im.perm.issible burden religious practice. Part cf the problem is
that Judge Strand appears confused over the proper relationship
between the Commerce Clause and the First Amendment. He assumes
both m his analysis of RFRA and the speech claims that if
Congress has sufficient interest to facially regulate under the
Commerce Clause than the other interest should be subordinated.
He cites no authority for this proposition and it is without
basis. To the contrary where the exercise of the Commerce power
creates substantial First Amendment questions it is the validity
of the Commerce exercise that becomes suspect. See: Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. Constr. Trades
Council, 485 U.S. 568 (1988) .

The issues here are those relating to civil disobedience. It
is a well respected form of protest and one which over time has
served to advance the moral sensibility of the nation. It has
been our continuing and enlightened practice to impose primarily
pro forma penalties on expressive violations of the law motivated



115



7

by deeply held moral convictions and presenting little more than
petty obstructions. Many of the acts made serious offenses by
FACE would otherwise be treated in this manner.

The harshness of FACE in light of the generosity of the
prevailing practice raises questions as to both the purpose and
effect of the law. Does FACE reflect hostility to the underlying
religious views of protestors by use of disproportionate
penalties .



The Legislative Process Concerns :

Face has long been a center of controversy. This is witnessed
by the debate surrounding its enactment and the litigation which
is now working its way through the federal courts. Already, FACE
has survived challenges to its constitutionality at least five
times in federal district courts. The pattern of these holdings
should not suggest that the constitutional future of FACE is
certain. In the past sensitive legislation dealing with the
complex mix of abortion and religious freedom have frequently
been struck down by lower courts only to be revived by the
Supreme Court. This was true of legislation limiting federal
funding for abortion, and it was true of legislation permitting
the participation of religious institutions in programs designed
to deter teen pregnancies.



116



The nexus of these issues abortion, politics, and religion
appear to have repeatedly produced something of a judgmental and
analytical breakdown within the judicial system. The First
amendment paradigms simply have not informed the lower courts
sufficiently to avert the problems they are intended to prevent.

This problem is heightened with FACE where courts must
consider the facial validity of a statute rather than the statute
as applied. Striped of the critical incidents that might serve as
a real world reference for the judge the review process of
interpretation becomes little more than a litmus revealing the
judges preferences for the underlying policy advanced by the
statute .

This problem becomes even more intense in the Age of Smith, a
period during which the court has abdicated critical parts of its
function in defending First Amendment constitutional rights to
the legislatures. Both the responsibility imposed by Smith, and
the lengthy history of confusion surrounding these issues suggest
both a special need for restraint on the part of legislatures
when approaching these complex issues and an extra measure of



117



9

discipline when considering safe guards for both free exercise
and speech.

Sadly, the legislative history of FACE suggest that Congress,
may have defaulted under the conflicting pressure of agitated
constituents and the dual legislative and judicial role imposed
under Smith. The episode demonstrates the wisdom of the framers
in crafting a Constitution that left a principle portion of the
burden for defense to courts detached from the pressures and
passions of immediate political controversy.

The present review of the administration of FACE gives
Congress the needed opportunity to review the Constitutional
issues raised during the earlier consideration. Hopefully, with
the benefit of additional time and perhaps greater detachment
Congress may give this matter the mature reflection it deserves.



118

Mr. SCHUMER. All right, well, I guess I would just make a few

points.

You know — Professor Broadus, you know the doctrine when first
amendment issues are at stake. The court is compelled to interpret
them in the way that most protects free speech. All your
hypothetical — which I do not buy — the court would not interpret

that way.

You are also ignoring another part of the statute, which I am try-
ing to find right here. Nothing in this section shall be construed
to prohibit any expressive conduct, including peaceful picketing or
other peaceful demonstration protected from legal prohibition by
the first amendment.

So I would just say, in reference to your testimony, let us wait
and see if any single court anywhere in America has any kind of
interpretation even close to your hypothetical.

Mr. Broadus. But I do not think

Mr. ScHUMER. I doubt even the prosecutors would bring a case.
You heard what Mr. Patrick said.

Mr. Broadus. Of course. But what it creates for some prosecu-
tors, given that the language is so broad, is who should be respon-
sible for the process of defining or having guidelines to defend the
appropriate ranges.

Mr. ScHUMER. That would work to your favor. Professor Broadus.
That would make a very narrow construction of FACE.

Mr. Broadus. But the problem is the chilling effect for the
present, who are not familiar with this in the interim.

Mr. ScHUMER. OK, that brings me to the real point here, which
is, as Ms. Finn stated explicitly and as Reverend Mahoney stated
explicitly, and as you stated implicitly, many have been chilled
from exercising their rights to free speech. The bottom line is they
have no reason to be chilled. Not a single word of the act, not a
single act of any person in the Federal Government has imposed
on those rights.

Reverend Mahoney. You are wrong, sir.

Mr. SCHXJMER. Please let me finish, Reverend Mahoney.

Reverend Mahoney. Certainly, sorry.

Mr. SCHUMER. Thank you.

That is the bottom line here. Here we have people being shot,
people being intimidated. Reverend Mahoney objects to pictures
being taken and license plate numbers being taken down when the
prolife movement uses that technique day in and day out. What is
good for the goose is good for the gander here. But that is not my
point. Those are legitimate activities, whether it be for law enforce-
ment or people exercising free speech.

That is not what this act is about. There has not been, frankly,
one scintilla of evidence that the Federal Government has even
tried, let alone succeeded, in impinging on anyone's free speech
rights. That is explicit in the legislation. That is explicit in the tes-
timony of Mr. Patrick and Ms. Harris.

So what I would say to you particularly, Ms. Finn, who rep-
resents a group, you can spread the word to your people, is as long
as they do not blockade, as long as they do not use force, as long
as they do not use violence, then, quite simply, this act will not
apply.



119

And I defy anybody to show me a single person, a specific case
where someone was peacefully protesting and has had the weight
of law come down on them.

Now, one case you mentioned, Reverend Mahoney, is some mar-
shal physically abused some person. Let us wait and see what hap-
pens in the courts as a result of that. There are lots of cases where
law enforcement exceeds the bounds of a law. If we find that in a
murder case the police went too far and took a defendant or a po-
tential defendant and used physical force against him, we would
not say repeal the laws of murder. Same thing here.

I am vigilant about this. I have not seen a single case where ac-
tual free speech without violence, without intimidation has even
been attempted to be prosecuted under this law. If you find some,
I would look at them.

But I do not believe we can speak in generalities, when on the
other side we have the specifics of violence, which all three of you
condemn. And I believe, for one, as I have said in every hearing,
that most of the prolife movement is different than those who are
violent. If there were people on the prochoice side who were being
violent against the types of clinics you talked about, Ms. Finn, and
local law enforcement would not enforce the rules at all, I would
pass the same act. In fact, this act would apply to that.

In other words, this act is neutral. We designed it that way so
that if that hypothetical were to evolve, FACE would apply. But it
seems to me unfair and — maybe not from the three of you but from
some others — disingenuous to say, well, somewhere out there some-
one totally misinterpreting the FACE law might be chilled, there-
fore, we should repeal it and allow the kinds of horrible things that
happened.

You heard the four witnesses, and two or three of you condemned
the kinds of actions used against them. That is all. What has hap-
pened here is that everyone has their beliefs. I have my strong be-
liefs, you have your strong beliefs, but a few people, the extremists,
have said they are morally superior to the laws of this land.

That has happened in the past. And every time government rep-
resenting the people has said we cannot allow that to happen. Be-
cause if one person believes his or her morality supersedes the laws
of this land then every person can.

What we are doing with FACE is what America is all about,
which is very simply saying that the laws of the land prevail and
if you do not like them, we have plenty of means in this country,
thank God, to change those laws, whetner through the democratic
process, like here, whether through peaceful protest, whether
through education.

We are going to fight to keep those. But we are not going to
allow those people who believe that moral superiority allows them
to use violence and take away other people's life to prevail.

Reverend Mahoney, you wanted to say something. That is all I
have to say.

Reverend Mahoney. Two things.

Mr. ScHUMER. But let us be specific. Let us find out not that peo-
ple might have been chilled incorrectly, because then we would
never pass any law. We could pass a law tomorrow exempting —
there is a hearing downstairs on the antitrust exemption for base-



120

ball. And that someone would be afraid to go a baseball game in-
correctly, that does not mean you would change the law. But if it
has actually been chilled by government action, then you have a
case.

Go ahead.

Reverend Mahoney. If there ever is a baseball season.

Mr. ScHUMER. Right.

Reverend Mahoney. It is one thing. Congressman, for us in this
situation to talk about it. It is an intimidating thing for the aver-
age American citizen to be photographed by Federal marshals with
the mandate of the Department of Justice. And it seems to me

And I know you are committed. We argue on many issues, and
I know you are committed to free speech. That is why I am strug-
ghng here in my mind that vou could be so cavalier that citizens —
it is not just 10 or 20. It is hundreds of people are afraid to go out
because this Federal Government is photographing, taking their li-
cense plates. That is not a light thing. Now granted maybe it does
not stack up with the horrible deaths in Pensacola, but it neverthe-
less is not a light thing.

And when I come here I almost feel like you are saying, tough.
And it is not tough. It is people's— the first amendment is the cor-
nerstone of this country. And this is an outgrowth of that.

The Attorneys General— two Assistant Attorneys General were
not even sure. You even said yourself, do we have one Department
of Justice? They do not even know how to implement this. So there
is a lot of confusion, there is a lot of fear, and, frankly, Congress-
man, it is getting worse as the Federal Government takes more
and more steps in this act.

Mr. ScHUMER. What I would ask you to do. Reverend Mahoney,
is specifically submit instances.

Reverend Mahoney. I will do that.

Mr. ScHUMER. And we will make those as part of the record. Not
in general but specific instances. That is what we would have to
see.

Certainly, if the Federal marshals are going around all over the
place any time there is a peaceful demonstration, they should not
be. On the other hand, if there is violence at that clinic and their
job under FACE— I don't think they are doing it enough— is to in-
vestigate, taking pictures and writing license plates at the scene of
a crime, that is part of the prosecutorial statute.

Reverend Mahoney. There have only been shootings in Pensa-
cola.
Mr. Schumer. No. No. There has been violence in other places.
If there is a blockade at a place, FACE would allow an investiga-
tive Federal authority to go in and investigate. Investigation means
talking to people, taking license plate numbers, taking pictures. So
I would like to know instances where, not in pursuit of violations
of the law, marshals have done that. And that would be wrong, and
I would stop it, and Don Edwards has been a leader in trying to
stop that.

OK, I want to thank the panel. I want to thank the audience,
who went through all these votes.

The record will remain open for the submission of further testi-
mony. I think this was a very good hearing.



121

Again, my conclusion is not that there has been a problem on the
freedom of speech side. There has been a problem in the Justice
Department on the violence and obstruction side, not doing quite
enough, and I hope they will. But, in any case, I think it has been
an educational process for everybody here.

I want to thank Melanie Sloan, who worked so hard not only on
the bill but on this hearing; Vicki Shabo, who is our clerk here,
who helped with the work; Andrew Cowin, who is the minority
counsel, who sat through the whole hearing and listened to the wit-
nesses he chose or his boss chose.

And, finally, the unsung heroes of our hearings all the time, the
people who take all those notes. And today our stenographer is
Pam Garland. Thank you, Pam.

And, with that, the hearing is adjourned.

[Whereupon, at 2:40 p.m., the subcommittee adjourned.]



APPENDIX



Material Submitted for the Hearing



STATEMENT OF THE

AMERICAN CIVIL LIBERTIES UNION

BEFORE THE HOUSE JUDICIARY COMMITTEE

SUBCOMMITTEE ON CRIME AND CRIMINAL JUSTICE

CONCERNING IMPLEMENTATION OF

THE FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT



OCTOBER 12, 1994



(123)



124



The American Civil Liberties Union is pleased to submit this
written statement concerning the implementation of the Freedom of
Access to Clinic Entrances Act (FACE) . My name is Elizabeth
Symonds, and I am a legislative counsel with the ACLU.

The ACLU is a nationwide, non-profit, nonpartisan
organization with nearly 300,000 members, dedicated to the
principles of liberty and equality embodied in the United States
Constitution. Since its founding in 1920, the ACLU has
participated in numerous civil liberties cases in the federal and
state courts involving the rights of free expression, free
association, religious freedom, and reproductive freedom. The
ACLU also plays an active role before the Congress when
legislation involving these issues arises. Because the ACLU is
committed to the advancement of all of these constitutional
rights, it assisted in the drafting of FACE and worked for its
enactment. It has continued to monitor carefully the enforcement
of the statute, and has participated as amicus c uriae in several
of the cases challenging the constitutionality of the law.

The Freedom of Access to Clinic Entrances Act is