The federal FACE act, an acronym standing for “freedom of access to clinic entrances” has teeth and protects both access to reproductive health service clinics and religious places of worship.
8 June 2022
The FACE act is widely know as the federal law that supports the enforcement of “buffer zones” around abortion clinics across the country or otherwise prevents people from interfering with others accessing the clinics. However, the act, in the body of the law but not in its title, provides the identical protection for those seeking access to an abortion clinic to people seeking access to their place of worship. Specifically, in pertinent part, it states:
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 lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of worship;
or
Intentionally damages or destroys the property of . . . a place of religious worship.
18 U.S.C. § 248.
It has all the elements of a statute that has teeth; a violation is a criminal offense and a civil one, the Attorney General can use it, there is injunctive relief available, and most importantly to civil practitioners, is has a private right of action with a bunch of goodies. Id. This means a regular old Joe can file suit under it and can be awarded “compensatory and punitive damages, as well as the costs of the suit and reasonable fees for attorneys and expert witnesses.” 18 U.S.C. § 248 (c)(1)(B). There is even the option to “recover, in lieu of actual damages, an award of statutory damages in the amount of $5,000.00 per violation.” Id.
A case that dug deep into how far one can take the statute under its injunction power in the face of first amendment rights is New York v. Operation Rescue Nat’l. 273 F.3d 184 (2001). The United States Appeals Court for the Second Circuit considered the appeal of two different abortion protesters that the trial court issued injunctions against, vacating various aspects of one and the entirety of the other. Id. at 212. It noted that in reviewing first amendment issues, an appellate court must make an independent review of any judgment to ensure it does not improperly intrude on the field of expression. Id. at 193. The second circuit found the trial court in some instances “failed to differentiate illegal protestor activity from protected and typical, albeit aggressive, protest activities.” Id. at 195. The author notes that this type of mistake also can be made by trial courts making decisions in harassment prevention orders and restraining orders in state courts.
Another item the Second Circuit noted was that with threats, “a district court must ask whether ‘the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and immediate prospect of execution.” Id. at 196. And that fear must be caused and be of a threat by the speaker, not a third party. Id. And this can be “true even where a protestor tells the objects of protest that they are in danger and further indicates recent political support for the violent third parties.” Id.
Another important concept in reviewing restraining orders and preliminary injunctions is that they must be narrowly tailored to burden no more speech than necessary to serve a significant governmental interest. Id. at 202. In Operation Rescue Nat’l the appeals court also found certain aspects of the injunction, such as banning the use of sound amplification equipment (a bullhorn), was excessive as a blanket ban and vacated it and remanded it for further findings and refinement. Id. at 212.
All in all, the message here is that the FACE act is quite the snake, with significant teeth, or fangs, to express its power. But as with any law with an application and effect on communications, it must not tread into expression covered and protected by the first amendment as it is part of the supreme law of the land.