12. FACE is constitutional under the First Amendment. See Soderna, 82 F.3d 1370 (7th Cir. 1996), Dinwiddie, 76 F.3d 913 (8th Cir. 1996); Cheffer, 55 F.3d 1517 (11th Cir. 1995); American Life League Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995); United States v. White, 893 F. Supp. 1423 (C.D.Cal. 1995); Riely v. Reno, 860 F. Supp. 693 (D.Ariz. 1994); Cook v. Reno, 859 F. Supp. 1008 (W.D.La. 1994), rev'd on other grounds, 74 F.3d 97 (5th Cir. 1996); Council for Life Coalition v. Reno, 856 F. Supp. 1422 (S.D.Cal. 1994). 13. Physical obstruction and the use of force and threats of force are not protected by the First Amendment.
For example, in Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1431 (S.D.Cal. 1994), Judge Gonzalez noted that "Congress collected ample evidence that the conduct prohibited under FACE affects interstate commerce" and further found "that the prohibitions in FACE are a reasonable and appropriate means to address the problem of violence at reproductive health service facilities." In Riely v. Reno, 860 F. Supp. 693, 707-08 (D.Ariz. 1994), Judge Strand emphasized the fact that Congress had made findings and that there was "a rational basis for Congress' determination that the activity FACE regulates affects interstate commerce." The Fourth Circuit, additionally, has already taken up the defendants' Commerce Clause argument in American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995).
See, e.g., American Life League v. Reno, 47 F.3d at 648 (citing Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 1339 (1968)); Dinwiddie, 76 F.3d at 921-22 (citing Cameron v. Johnson); Terry v. Reno, 101 F.3d at 1418-19 ("Consistent with the First Amendment, the Government may also punish physical obstruction that makes passage to or from a reproductive health facility impossible or unreasonably hazardous") (citing Cameron v. Johnson). Moreover, FACE is not overbroad. See United States v. Bird, 124 F.3d 667, 683 (5th Cir. 1997); Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 652-53; Riely v. Reno, 860 F. Supp. 693, 704 (D.Ariz. 1994); see also Hill v. Colorado, 120 S.Ct. at 2497-98 (Colorado statute is not overbroad). It is not vague.See Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 652-53; Riely, 860 F. Supp. at 705; see also Hill v. Colorado, 120 S.Ct. at 2498-99 (Colorado statute is not vague). It does not violate the Equal Protection Clause. See Terry, 101 F.3d at 1422.
Therefore, even if it were not content-neutral, the Act would not run afoul of the Equal Protection Clause. No circuit court has expressly addressed an equal protection challenge to the Access Act; however, several district courts examining such attacks have reached the same conclusion set forth above. See U.S. v. Dinwiddie, 885 F. Supp. 1286, 1289 (W.D.Mo. 1995) (holding that the Access Act does not violate the equal protection clauses of the Fifth and Fourteenth Amendments); Riely v. Reno, 860 F. Supp. 693, 705-06 (D.Ariz. 1994) (same). The Cheffer court did not face an equal protection challenge to the Access Act. Because of the similarity between the First Amendment and equal protection arguments raised by Trosch, however, Cheffer's First Amendment rationale is applicable with equal force to the equal protection claim, as well.
Other courts have reached similar conclusions. See American Life League v. Reno, 855 F. Supp. 137 (E.D.Va. 1994); Council For Life Coalition v. Reno, 856 F. Supp. 1422 (S.D.Ca. 1994); Riely v. Reno, 860 F. Supp. 693 (D.Ariz. 1994) (all holding the Freedom of Access to Clinic Act constitutional under the Commerce Clause). Hill's alternative argument that the government must prove a nexus with interstate commerce is unpersuasive. Although Hill provides several examples of statutes that require a connection with interstate commerce as an element of the criminal offense, such an element is not required.
The Access Act thus does not play favorites: it protects from violent or obstructive activity not only abortion clinics, but facilities providing pre-pregnancy and pregnancy counseling services, as well as facilities counseling alternatives to abortion. See Riely v. Reno, 860 F. Supp. 693, 702 (D. Ariz. 1994) (Access Act "would apply to an individual who spray paints the words `KEEP ABORTION LEGAL' on a facility providing counseling regarding abortion alternatives as well as to the individual who spray paints the words `DEATH CAMP' on a facility providing abortion services."). Because the Act criminalizes only violent or obstructive conduct against reproductive health facilities or those seeking to obtain or provide reproductive health services, the views of those arrested for committing violence against or obstructing people obtaining or providing reproductive health services are irrelevant.
Therefore, we reject Mrs. Dinwiddie's overbreadth and vagueness arguments and, like every other court that has considered the question, conclude that FACE does not violate the First Amendment. Accord, Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 648-53; Lucero, 895 F. Supp. at 1424-25; White, 893 F. Supp. at 1435-37; Riely v. Reno, 860 F. Supp. 693, 700-04 (D. Ariz. 1994); Cook v. Reno, 859 F. Supp. 1008, 1010-11 (W.D. La. 1994); Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1426-30 (S.D. Cal. 1994). III.
We agree with these courts and reverse the district court's decision. The following district courts have found the Access Act to be a constitutional exercise of Congress's Commerce Clause power: United States v. Dinwiddie, 885 F. Supp. 1299 (W.D. Mo. 1995); United States v. Hill, 893 F. Supp. 1034 (N.D. Fla. 1994); Riely v. Reno, 860 F. Supp. 693 (D. Ariz. 1994); Cook v. Reno, 859 F. Supp. 1008 (W.D. La. 1994); Council for Life Coalition v. Reno, 856 F. Supp. 1422 (S.D. Cal. 1994); United States v. White, 893 F. Supp. 1423 (C.D. Cal. 1995); United States v. Lucero, 895 F. Supp. 1421, 1995 WL 461777 (D. Kan. 1995). I. [2] Background
Further, any award of injunctive relief would be simultaneously justified by the government's compelling interest in protecting access to reproductive health services, and narrowly tailored by this court to use the least restrictive means of furthering that interest. See Riely v. Reno, 860 F.Supp. 693, 709 (D.Ariz.1994). Similarly, the current and proposed counterclaims fail to present any basis for the court declaring that the present action violates Means's constitutional rights.
Plaintiffs have offered no authority to suggest that such intrusions are historically associated with constitutionally privileged speech, and "it is an untenable position that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct 'intend [] thereby to express an idea.'" Riely v. Reno, 860 F. Supp. 693, 702 (D. Ariz. 1994) (quoting Texas v. Johnson, 491 U.S. 397, 404 (1989)); see also PETA, 105 F. Supp. 2d at 318; Wilson v. Johnson, 04-CV-059, 2005 WL 2417057, at *7 (E.D. Tenn. Sept. 30, 2005) ("Plaintiff got caught defacing the doors and walls of two University buildings, conduct that constitutes vandalism, and vandalism is not protected by the First Amendment."), aff'd, 247 F. App'x 620 (6th Cir. 2007). Second, any burdens upon speech are independent of the expression's content and incidental to the statute's legitimate purpose of protecting property.