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United States v. Norman Weslin, Dwight Monagan, Barton Chamberlin, Arnold Matheson, John Blanchard, Michael Illuzzi, Karen Jackson, Daniel Lamontain-Leatherman, Robert Raco, Randolph Smith, and Rene Riddle

Citations: 156 F.3d 292; 1998 U.S. App. LEXIS 20753Docket: 97-1653

Court: Court of Appeals for the Second Circuit; August 25, 1998; Federal Appellate Court

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Defendants Norman Weslin and ten others, members of the anti-abortion group Lambs of Christ, were convicted by the U.S. District Court for the Western District of New York for violating the Freedom of Access to Clinic Entrances Act (FACE) after staging a sit-in protest at a Planned Parenthood clinic on December 7, 1996. They physically blocked all five clinic entrances, causing $1,100.57 in property damage. The defendants claimed their actions aimed to prevent abortions and asserted several constitutional challenges to FACE, arguing it was beyond Congress's Commerce Clause authority and violated their First Amendment rights, particularly the Free Speech Clause. The district court denied a motion to dismiss the charges, and following a bench trial, all defendants were found guilty and sentenced to various terms, including supervised release and up to four months' imprisonment, alongside restitution orders. On appeal, they maintained their challenges to FACE based solely on the Free Speech Clause and the Commerce Clause, which the appellate court ultimately rejected, affirming the district court's ruling.

The constitutionality of the Freedom of Access to Clinic Entrances (FACE) statute has been affirmed by multiple federal circuits, including the Seventh, Fifth, Fourth, D.C., and Eighth Circuits, all of which found it constitutional. Congress’s authority to enact FACE is supported under the Commerce Clause, specifically through its power to regulate activities that substantially affect interstate commerce. The Supreme Court's decision in United States v. Lopez outlines three categories of activities Congress can regulate: the channels of commerce, instrumentalities of commerce, and activities with a substantial relation to interstate commerce. FACE falls under the third category, as Congress established that the activities it regulates—such as women traveling interstate for reproductive health services and doctors moving across state lines to provide abortions—do affect interstate commerce. Legislative history further supports this, noting both the interstate travel of women for procedures and the interstate purchasing of supplies by clinics. Congress has the authority to regulate activities that inhibit interstate commerce, even when those activities are non-commercial, as demonstrated in the National Organization for Women v. Scheidler case, which involved threats deterring commercial activity. Overall, FACE is upheld as a valid exercise of congressional power under the Commerce Clause.

FACE can be enacted under the Commerce Clause, independent of Congress's motives, as long as the regulation does not violate the Constitution. The statute aims to regulate any obstruction of reproductive health services, covering actions from both 'pro-choice' and 'pro-life' protestors without regard to the underlying motivations. FACE does not discriminate based on content or viewpoint; it applies uniformly to all obstructive actions, whether they are motivated by opposition to abortion or other issues. The law does not require offenders to express a particular message through their conduct. The enforcement of FACE against those obstructing access to clinics, regardless of their ideological stance, reinforces that the statute is viewpoint-neutral. Furthermore, First Amendment law does not recognize claims of disparate impact, meaning a group cannot avoid prosecution simply because it violates the law more frequently than others. The defendants' argument that conduct should not be restricted based on its message is misplaced; FACE focuses on conduct with expressive elements rather than regulating speech itself.

Regulating speech versus regulating conduct with expressive components is a critical legal distinction. The government can prohibit various activities, even if they are expressive, such as secondary boycotts, public nudity, and political assassinations. The constitutionality of laws that restrict expression while addressing proscribable conduct is evaluated using the three-prong test established in United States v. O'Brien. This test requires that: (1) the regulation serves an important governmental interest; (2) this interest is unrelated to suppressing expression; and (3) any restriction on First Amendment freedoms is narrowly tailored to the interest. 

The government’s interests in maintaining public safety, order, and traffic flow, as well as protecting property rights and access to reproductive health services, justify injunctions against pro-life protests, as established in Schenck v. Pro-Choice Network. These interests are not aimed at suppressing free expression and allow for non-obstructive demonstrations. The Freedom of Access to Clinic Entrances (FACE) Act is considered narrowly tailored since it permits anti-abortion protestors to engage in various forms of speech without obstructing clinic access.

Regarding mens rea, defendants claiming a lack of intent to violate FACE, asserting their aim was to save unborn children, cannot escape conviction based on their motives. They do not dispute their intent to block clinic entrances to prevent abortions, which interferes with the provision of reproductive health services as defined by Congress. The defendants' argument that FACE is a civil rights statute and that their actions were non-discriminatory is incorrect; FACE is a criminal statute, and discrimination is not a required element for guilt.

The judgment of the district court is affirmed after thorough consideration of the defendants' appeal arguments. Relevant to the case is 18 U.S.C. § 248, which prohibits actions that intentionally injure, intimidate, or interfere with individuals seeking reproductive health services, as well as the destruction of property associated with such facilities. The statute clarifies that expressive conduct, such as peaceful demonstrations, is protected by the First Amendment. Definitions provided include "interfere with" as restricting movement and "physical obstruction" as making access to facilities unreasonably difficult or hazardous. The defendants also appealed against the district court's decision not to sanction the court reporter for not amending the trial transcript, but this claim is deemed without merit.