From the GEORGETOWN JOURNAL OF GENDER AND THE LAW    VOL III  FALL 2002   (FINAL
DRAFT COPY)

ABORTION PROTESTING

NATASHA IRIS FRIEDRICHS


I. LEGISLATIVE RESTRICTIONS
 A. FEDERAL LEGISLATION
 B. STATE LEGISLATION

II. COURT-ORDERED RESTRICTIONS

III.  CIVIL ACTIONS FOR TRUE THREATS


INTRODUCTION

The question of whether or not a woman has the right to terminate a pregnancy is one of the most highly debated
issues in the United States.  Citizens with strong beliefs that abortion is morally wrong  and citizens with strong beliefs
that abortion is “an exercise in self-determinationâ€�  have voiced their condemnation and support of the legality
of abortion through protest. Protest has long been recognized as part of the fundamental right to freedom of speech.
Courts and legislators are reluctant to restrict this right and exercise a great degree of care when imposing restrictions
on acts that constitute protest. Some of these protests, however, have deviated from peaceful means of expression to
become disruptive and even violent. The problem of violence at abortion clinics has led to legislation aimed at
preventing disruptive situations, and this legislation has raised First Amendment concerns.  Actual threats to doctors
and to women seeking abortions have prompted courts to act to protect the safety of those providing and seeking
reproductive services  while maintaining a balance between the rights of protestors and the rights of those seeking
their constitutionally protected right to an abortion.


I. LEGISLATIVE RESTRICTIONS

Legislation to regulate individual and group expression near abortion facilities has been enacted on the federal, state,
and local levels. Regulation of protest near abortion facilities is subject to traditional First Amendment analysis.  In
applying First Amendment standards, courts have concluded that statutory provisions prohibiting the use of force as a
form of abortion protesting are proscriptions of illegal activity, which are not protected under the First Amendment.  
Restrictive statutes based on a particular viewpoint are generally invalid.  Conversely, viewpoint-neutral statutes,
which restrict protest based on time, place, and manner, usually withstand First Amendment scrutiny.


A. FEDERAL LEGISLATION

Congress enacted the Freedom of Access to Clinic Entrances Act of 1994 (FACE)  in response to escalating
violence associated with anti-abortion protesting, as well as the concern that women were being denied access to
abortions.  Accordingly, the provisions of FACE prohibit: (1) using force, the threat of force, or physical obstruction
to intentionally injure, intimidate, or interfere with persons who seek to obtain or provide reproductive health services
and (2) intentionally causing, or attempting to cause, damage or destruction of a reproductive health facility.  FACE
subjects violators to criminal penalties  and permits individual victims to seek civil remedies.  The Act expressly
exempts parents and the legal guardians of minors from this criminal and civil liability.
A cause of action under FACE can be brought by individuals “involved in providing or seeking to provide, or
obtain[ing] or seeking to obtain, services in a facility that provides reproductive health services.â€�  The terms â
€œseekingâ€� and “providingâ€� in reference to reproductive health services have been narrowly construed.
Since its enactment, numerous anti-abortion groups and protestors have mounted unsuccessful challenges to the
constitutionality of FACE.  Federal courts have uniformly rejected claims that FACE violates the free expression
guarantee of the First Amendment.  The Supreme Court has declined to grant certiorari on the issue.
In upholding FACE, some courts have reasoned that the statute is targeted at the use or threat of force and, like hate
crimes legislation,  prohibits conduct outside the ambit of free expression guarantees.  Other courts have subjected
FACE to First Amendment scrutiny because of its incidental effects on conduct with expressive components.  These
courts have upheld FACE as content neutral because the statute prohibits all threats of force or physical obstructions,
not just those of anti-abortion protestors.  Furthermore, courts have held that FACE is not viewpoint based despite
its disparate impact on anti-abortion protestors.
FACE has been further sustained by those courts applying the O’Brien test,  which imposes restrictions on
conduct that also incidentally burden individual expression.  These courts have found that FACE is not only narrowly
tailored to serve important governmental interests,  but also leaves open ample alternative means of communication
because protesters retain the right to engage in speech that does not violate the statute.  Recognizing that FACE
implicates some protected expression, courts have also inquired as to whether FACE has a chilling effect on speech;
however, no court has found a substantial chilling effect that would render the statute unconstitutional.
Before the enactment of FACE, plaintiffs sought protection under other federal statutes. In Bray v. Alexandria
Women’s Health Clinic,  abortion clinics and supporting organizations brought a suit against abortion protestors,
attempting to enjoin protesters from demonstrating at clinics in the District of Columbia metropolitan area. The
Supreme Court concluded that women seeking abortions do not constitute a qualifying class under 42 U.S.C. §
1985(3).  The Court reasoned that the protestors were not directing their protests at women as a class, which would
be discriminatory and a demonstration of animus against women.  The Court also found that the demonstrations were
not intended to interfere with interstate commerce; although access barriers to abortion clinics may affect intrastate
travel, they do not involve the protections of the right to interstate travel.  The dissenters considered whether the
second clause in Section 1985(3), the “hindranceâ€� clause,  would be applicable and render the defendants
liable. The majority determined, however, that since no party brought a cause of action under this clause, the Court
could not decide the issue.


B. STATE LEGISLATION

The Supreme Court’s influential decision in Hill v. Colorado  attempted to strike a balance between the rights and
interests of protestors against the rights and interests of the unwilling listeners.   The Court upheld a Colorado statute  
making it unlawful for anyone to breach an eight-foot buffer zone around patients that were within 100 feet of a health
care facility.  Sidewalk counselors in pursuit of injunctive relief originally brought the action. The Court recognized the
First Amendment rights of the petitioners by recognizing their right to be within 100 feet of health care facility
entrances, communicate orally, display signs, and hand out leaflets. However, the Court asserted that “the right of
every person ‘to be let alone’ must be placed on the scales with the right of others to communicate.â€�  The
state may use its police power to protect the health and safety of its citizens  by enforcing the right to enter health care
facilities free from interference.
The Court determined that the statute was content neutral and therefore did not warrant strict scrutiny.  First, the
statute was deemed a restriction on the places where certain speech is permitted, not a restriction on the actual
speech; second, the restriction was not intended to target a specific viewpoint, nor did it reference the content of the
speech to be prohibited; and third, the state’s interests were not related to the content of the speech.  The
majority determined that the statute at issue was narrowly tailored to serve the legitimate governmental interest of
protecting the safety of persons seeking health care services, and therefore was a valid time, place, and manner
regulation.  The Court declared that adequate means of communication are left available for the protestors and the
statute, therefore, did not infringe upon their First Amendment right to free speech.
In McGuire v. Reilly, the U.S. Court of Appeals for the First Circuit relied on Hill in upholding a Massachusetts
statute that created a floating six-foot buffer zone around pedestrians and vehicles approaching reproductive health
care clinics.   In applying the Hill standard, the First Circuit emphasized three key points in the Supreme Court’s
decision: the significance of the state’s interest in preserving access to health care facilities, the narrow tailoring of
the legislation in achieving that interest, and the determination that modest floating buffer zones left open available
alternative means of communication.   When assessing the government’s regulation of speech, the critical question
in determining content neutrality is not based on whether some speech is disproportionately burdened, but whether
the speech itself is being targeted for its content.
The Supreme Court has also restricted abortion protesting in areas away from the clinic entrances. In Frisby v.
Shultz,  the Court upheld an ordinance banning all picketing in residential neighborhoods.  Abortion protestors
brought an action seeking preliminary and permanent injunctive relief on First Amendment grounds.  The Court
rejected their arguments and upheld the ordinance.
In reaching its conclusion, the Court acknowledged that the streets at issue are traditional public fora, and therefore
demand stringent standards when imposing restrictions on them.  However, the Court held that the ordinance was
content neutral,  and served the significant government interest of protecting the privacy of unwilling listeners inside
their residences.  The Court also found that the ordinance met the “narrowly tailored test.â€�  Finally, the Court
concluded that ample alternative means of communication were open to the protestors because the ordinance only
prohibited picketing that focused on a particular house.  Other means of expression were not prohibited by this
ordinance.  Thus, the injunctive relief sought by the protestors was deemed unnecessary to protect their First
Amendment right of free speech.


II. COURT-ORDERED RESTRICTIONS

Injunctions that restrain abortion protestors  warrant a stricter standard of review than the traditional time, place, and
manner analysis applied to comparable content-neutral statutes.  However, this heightened standard of constitutional
scrutiny has been relaxed when applied to injunctions where the parties involved in the protesting activities have
previously engaged in violent and illegal acts.  The appropriate standard of review and level of scrutiny for injunctions
has developed from a series of Supreme Court decisions.
In National Organization for Women, Inc. v. Scheidler,  health care clinics brought suit seeking injunctive relief and
damages, alleging, inter alia, that anti-abortion groups were involved in a conspiracy to shut down abortion clinics
through racketeering in violation of the Racketeering Influenced and Corrupt Organizations Act.  The Supreme Court
reasoned that “economic motive� is not necessary to prove the alleged acts under RICO and upheld the
injunction.
In Madsen v. Women’s Health Center, Inc.,  the Supreme Court upheld part of an injunction granting a thirty-six-
foot buffer zone around the entrances of a facility that performed abortions.  The injunction encompassed all
individuals acting in concert with or participating with such organizations.  The Court found that the injunction satisfied
the Ward test  and was content neutral.   However, instead of limiting its analysis to the Ward test, the Court
established a new, more rigorous test for injunctions: content-neutral injunctions cannot burden any more speech than
necessary to achieve the government’s interests.
Thus, even though the Court upheld the buffer zone around the entrances of facilities that perform abortions under this
new standard, it invalidated a thirty-six-foot buffer zone around the private property surrounding the facility and a
300-foot buffer zone around the staff residences as overbroad.  The Court also found that a ban on “images
observableâ€� was likewise overbroad and therefore invalid.  Lower federal courts have generally upheld fixed
buffer zones surrounding abortion facilities as satisfying the Madsen test.
The Supreme Court addressed the buffer zone issue again in Schenck v. Pro-Choice Network,  in which it partially
upheld an injunction that prohibited anti-abortion protestors from demonstrating within fifteen feet of either the health
care facility or individuals seeking entrance thereto,  while invalidating floating buffer zones around individuals and
vehicles.  The fifteen-foot fixed buffer zones and the cease-and-desist provisions  were upheld as appropriately
tailored to meet the government’s significant interests in ensuring public safety and order, protecting property
rights, promoting free flow of traffic, and protecting a woman’s freedom to seek pregnancy-related services.  The
Court had recognized these state interests in Madsen, a case with a similar factual background.
The Schenck Court invalidated the fifteen-foot floating buffer zones because they impinged on “classic forms of
speech,â€� such as leafleting and public protesting  and restricted speech on sidewalks, a traditional public forum.  
The Court concluded that floating buffer zones burdened speech more “than was necessary to serve the relevant
government interests.â€�  The Court declined to decide, however, whether governmental interests would ever justify
a floating buffer zone, limiting its holding to the facts of the case.  In nullifying those portions of the injunction, the
Court reasoned that the floating buffer zones prevented defendants “from communicating a message from a normal
conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public
sidewalks.â€�  Nevertheless, the Court recognized that records of abusive conduct may sometimes justify
restrictions even on “classic speech,� as abortion protesting sometimes involved “physically abusive
conduct, harassment of the police that hampered law enforcement, and the tendency of even peaceful conversations
to digress into aggressive and sometimes violent conduct.�
In People of the State of New York v. Operation Rescue, the U.S. Court of Appeals for the Second Circuit upheld
an injunction against a particular protestor but struck down an expanded buffer zone and ban on amplification devices
as unconstitutionally broad.  Citing Schenk, the court concluded that the District Court’s expansion of the buffer
zone outside of the clinic was overbroad, and thus a violation of the First Amendment.   The court further determined
that as buffer zones extend further from clinic entrances, a more rigorous standard of review is necessary to determine
that they are meeting the state’s legitimate interests in providing access to clinics.



III. CIVIL ACTIONS FOR TRUE THREATS

The latest development in abortion protesting has involved the issue of “true threatsâ€� and the internet.  In
October 1995, two reproductive health service clinics and a number of doctors filed a civil lawsuit against the
creators of an anti-abortion internet web site dubbed the Nuremberg Files, asserting that the site threatened violence
against both doctors and patients in violation of FACE.  In Planned Parenthood of the Columbia/Willamette, Inc. v.
American Coalition of Life Activists,  the plaintiffs claimed that the web site--containing the names and home
addresses of clinic workers referred to within the site as murderers accompanied by offers of rewards--constituted â
€œtrue threats.â€�  Under constitutional theory, a “true threatâ€� is not protected speech, even if the speech is
considered traditionally protected political speech.   
The plaintiffs were successful at the district court level, marking the first time FACE was applied to internet speech.  
However, the defendants  appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the district courtâ
€™s ruling.  The Ninth Circuit reviewed the case de novo, and it rejected the standard the district court applied to
determine that the web site and posters at issue constituted true threats.  The court of appeals determined that none of
the statements made by the American Coalition of Life Activists included explicit threats, or mentioned any future
violence.  After likening the protestors’ speech to the type of political speech that is used to bend the will of oneâ
€™s opponents,  the court of appeals vacated the district court’s judgment and ordered it to dissolve the
injunction and enter a judgment for the protestors on all counts.
Subsequently, the plaintiffs sought a rehearing. The Ninth Circuit granted their petition and recently reheard Planned
Parenthood v. American Coalition of Life Activists en banc.   As of March 2002, they have yet to hand down a
decision.


CONCLUSION

Abortion protest has had a long and tumultuous history both in and out of the courtroom.  Abortion protesting, and
the speech and actions involved with this constitutionally protected right to expression is likely to remain on the
forefront of the debate in this highly contested, emotional, and complex area of law.

Footnotes

1. See Joseph A. A. Yanchik, III, Constitutional Law-First Amendment-Third Circuit Use of Injunctions to Restrict
Antiabortion Protesters, 37 VILL. L. REV. 978 (1992) (“The debate over whether abortion is an exercise in self-
determination or legally sanctioned murder has divided the country more than any other issue in recent memory.�);
see also Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Court conducted an in-depth analysis of the abortion
debate to conclude that state regulation of abortion impermissibly abridges protected liberty only when a state
imposes an undue burden on a woman’s ability to decide whether to terminate a pregnancy); Roe v. Wade, 410
U.S. 113 (1973) (Court conducted a detailed analysis of the arguments in favor of and against abortion, in addition to
its historical level of acceptance dating back centuries).
2.  See Joseph A. A. Yanchik, III, Constitutional Law-First Amendment-Third Circuit Use of Injunctions to Restrict
Antiabortion Protesters, 37 VILL. L. REV. 978 (1992); see also Frisby v. Shultz, 487 U.S. 474 (1988) (abortion
protesters brought an action seeking injunctive relief of an ordinance banning all picketing in residential neighborhoods
as violating the First Amendment); Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996) (action brought to enjoin
abortion protestors).
3.  Joseph A. A. Yanchik, III, Constitutional Law-First Amendment-Third Circuit Use of Injunctions to Restrict
Antiabortion Protesters, 37 VILL. L. REV. 978 (1992); see also Madsen v. Women’s Health Ctr., Inc., 512 U.
S. 753 (1994) (a videotape of the occurrence in question portrayed both proponents and opponents of abortion
rights partaking in the same protesting activities).
4.  See S. REP. NO. 103-117, at 3 (1993) (“A nationwide campaign of anti-abortion blockades, invasions,
vandalism and outright violence is barring access to facilities that provide abortion services and endangering the lives
and well-being of the health care providers who work there and the patients who seek their services . . . The record
before the Committee establishes that state and local law enforcement is inadequate to handle this situation, and that
Federal legislation is urgently needed.�).
5.  See Jason Schlosberg, Judgment on “Nurembergâ€�: An Analysis of Free Speech and Anti-Abortion Threats
Made on the Internet, 7 B. U. J. SCI. & TECH. L. 52 (2001).
6.  See, e.g., Hill v. Colorado, 530 U.S. 703, 716 (2000) (First Amendment right to free speech includes the right to
persuade others to change opinions, but “does not always embrace offensive speech that is so intrusive that the
unwilling audience cannot avoid it�); McGuire v. Reilly, 260 F.3d 36, 39-40 (1st Cir. 2001) (First Amendment
rights of protestors still protected where court upheld “reasonable time, place and manner restrictions� on
places where protestors could be in relation to patients and clinic entrances on grounds that it did not regulate speech
and was not adopted because of the content of protestors’ message); United States v. Wilson, 154 F.3d 658,
662-63 (7th Cir. 1998) (First Amendment challenge against Freedom of Access to Clinic Entrances Act (FACE)
unsuccessful because prohibition on use of force, threat of force, and physical obstruction did not reach protected
expression); United States v. Soderna, 82 F.3d 1370, 1375 (7th Cir. 1996) (First Amendment challenge against
FACE unsuccessful because activities were not entitled to constitutional protection because they invaded personal
liberty of those seeking reproductive services by obstructing access to abortion, which created harms distinct from
their communicative impact); United States v. Dinwiddie, 76 F.3d 913, 921-22 (8th Cir. 1996) (First Amendment
challenge against FACE unsuccessful when prohibited expression was limited to threats of violence because statute
only regulated unprotected speech); Planned Parenthood v. Am. Coalition of Life Activists, 945 F. Supp. 1355,
1370 (D. Or. 1996) (First Amendment challenge against FACE unsuccessful when statutory prohibition on â
€œthreats of forceâ€� was content and viewpoint neutral, served “substantial government interests in preventing
violence and preserving access to reproductive health services, and [wa]s narrowly tailored to further those  interests,
without targeting the content of the expression�), vacated and remanded, 244 F.3d 1007 (9th Cir.), reh’g en
banc granted, 268 F.3d 908 (9th Cir. 2001); United States v. Lucero, 895 F. Supp. 1421, 1425 (D. Kan. 1995)
(First Amendment challenge against FACE unsuccessful because criminal conduct proscribed by statute was not
transformed into protected speech simply based on actor’s intentions to communicate view “that legal
abortion denies justice to the unborn�); Riely v. Reno, 860 F. Supp. 693, 701 (D. Ariz. 1994) (First Amendment
challenge against FACE unsuccessful when reached only “pure conduct� and unprotected speech that
threatened, harmed, or interfered with another person’s freedom of movement); Council for Life Coalition v.
Reno, 856 F. Supp. 1422, 1426-27 (S.D. Cal. 1994) (First Amendment challenge against FACE unsuccessful
because proscription applied only to criminal acts of violence, which do not become protected expression based on
actors’ intention to communicate message with those acts).
7.  See, e.g., United States v. Wilson, 154 F.3d 658, 662-63 (7th Cir. 1998) (First Amendment challenge against
FACE unsuccessful because prohibition on use of force, threat of force, and physical obstruction did not reach
protected expression); United States v. Soderna, 82 F.3d 1370, 1375 (7th Cir. 1996) (First Amendment challenge
against FACE unsuccessful because activities were not entitled to constitutional protection because they invaded
personal liberty of those seeking reproductive services by obstructing access to abortion, which created harms
distinct from their communicative impact); United States v. Dinwiddie, 76 F.3d 913, 921-22 (8th Cir. 1996) (First
Amendment challenge against FACE unsuccessful when prohibited expression was limited to threats of violence
because statute only regulated unprotected speech); Planned Parenthood v. Am. Coalition of Life Activists, 945 F.
Supp. 1355, 1370 (D. Or. 1996) (First Amendment challenge against FACE unsuccessful when statutory prohibition
on “threats of force� was content and viewpoint neutral, served “substantial government interests in
preventing violence and preserving access to reproductive health services, and [wa]s narrowly tailored to further
those interests, without targeting the content of the expression�), vacated and remanded 244 F.3d 1007 (9th Cir),
reh’g en banc granted, 268 F.3d 908 (9th Cir. 2001); United States v. Lucero, 895 F. Supp. 1421, 1425 (D.
Kan. 1995) (First Amendment challenge against FACE unsuccessful because criminal conduct proscribed by statute
was not transformed into protected speech simply based on actor’s intentions to communicate view “that legal
abortion denies justice to the unborn�); Riely v. Reno, 860 F. Supp. 693, 701 (D. Ariz. 1994) (First Amendment
challenge against FACE unsuccessful when reached only “pure conduct� and unprotected speech that
threatened, harmed, or interfered with another person’s freedom of movement); Council for Life Coalition v.
Reno, 856 F. Supp. 1422, 1426-27 (S.D. Cal. 1994) (First Amendment challenge against FACE unsuccessful
because proscription applied only to criminal acts of violence, which do not become protected expression based on
actors’ intention to communicate message with those acts).
8.  See, e.g., O.B.G.Y.N. Ass’n v. Birthright of Brooklyn & Queens, Inc., 407 N.Y.S.2d 903, 906 (App. Div.
1978) (injunction issued against certain activities of abortion protestors could not prohibit use of words “murderâ
€� and “killâ€� on placards because it targeted particular viewpoint).
9.  See, e.g., Hill v. Colorado, 530 U.S. 703, 716-720 (2000) (“First Amendment does not demand that patients
at a medical facility undertake Herculean efforts to escape the cacophony of political protests� where court
weighed the substantial First Amendment right to communicate with the right “to be let alone� upholding
reasonable time, place and manner restrictions where not restrictive of speech itself and government regulation is
content neutral); McGuire v. Reilly, 260 F.3d 36, 40-41 (1st Cir. 2001) (Massachusetts statute creating a six-foot
bubble around unwilling listeners deemed a modest, proportional and narrowly tailored restriction to achieve state
goals: preserving access to health care facilities and securing public safety); Edwards v. City of Santa Barbara, 150 F.
3d 1213, 1216-17 (9th Cir. 1998) (city ordinance creating fixed buffer zone within eight feet of entrances to health
care facilities upheld because it was narrowly tailored to serve the city’s interests in ensuring access to health care
facilities, facilitating free flow of traffic, and promoting public safety, as well as left ample alternative means of
communication); United States v. Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996) (FACE upheld against First
Amendment challenge as viewpoint-neutral restriction because “[i]t is possible to oppose abortion yet also oppose
(and consider counterproductive) not only the murder of abortion doctors but also the blockading of entrances to
abortion clinics�); cf. City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994) (sign displayed in a residential area was a
method of directly communicating with the intended audience, the neighbors, which is “an audience that could not
be reached nearly as well by other means�); Nationalist Movement v. City of Boston, 12 F. Supp. 2d 182, 192
(D. Mass. 1998) (“Not only may the location be an essential part of the message sought to be conveyed, but it
may also be essential to the communicating with the intended audience.�).
10.  18 U.S.C.A. § 248 (West, WESTLAW through Oct. 26, 2001).
11.  See id. (“[T]he purpose of this Act to protect and promote the 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.�); 140 CONG. REC. H2917-08, H2918 (daily ed. May 4, 1994)
(Conference Report on S. 636, Freedom of Access to Clinic Entrances Act of 1994) (“An interstate campaign of
violent, threatening, obstructive and destructive conduct aimed at providers of reproductive health services across the
nation has injured providers of such services and their patients, and the extent and interstate nature of this conduct
place it beyond the ability of any single state or local jurisdiction to control�). For a detailed explanation of a
woman’s constitutional right to terminate a pregnancy, see discussion supra Constitutional Law Chapter:
Abortion, at ___.
12.  See 18 U.S.C.A. § 248(a) (West, WESTLAW through Oct. 26, 2001).
13.  See id. § 248(b). A first offense results in a fine or up to one year imprisonment or both. See id. A second
offense results in a fine or up to three years imprisonment or both. See id. For an offense involving only a â
€œnonviolent physical obstruction,â€� the fine for a first offense is limited to $10,000 and imprisonment to six
months or less; for a subsequent offense, the fine is limited to $25,000 and imprisonment to eighteen months. See id.
If an offense results in bodily injury, the length of imprisonment may be up to ten years; if death results, the length of
imprisonment may be of any term, or for life. See id.
14.  See 18 U.S.C.A. § 248(c) (West, WESTLAW through Oct. 26, 2001). The statute provides a civil cause of
action for any person “aggrieved by reason of the conduct prohibited,� permitting the court to award both
equitable and legal remedies, including injunctive relief, compensatory and punitive damages, and attorneys’ fees.
See id. Plaintiffs may also elect to recover statutory damages of $5,000 per violation in lieu of actual compensatory
damages. See id.
15.  See id. § 248(a).
16.  See, e.g., Raney v. Aware Woman Ctr. for Choice, Inc., 224 F.3d 1266, 1268 (11th Cir. 2000) (abortion
protestor attempting to give advice outside a health care facility performing reproductive health services, within the
statutory buffer zone, may not bring a cause of action under FACE).
17.  See id. at 1266 (court reasoned that the statutory language of 18 U.S.C.A. § 248 distinguishes qualified
professionals who work in credentialed facilities from “unregulated volunteer counselors who are not attached to
recognized providers of reproductive healthcare�).
18. For a sense of the types of issues raised by challenges to FACE, compare United States v. Gregg, 226 F.3d 253
(3d Cir. 2000) (FACE upheld under Congress’ Commerce Clause and under First Amendment), cert. denied,
121 S. Ct. 1600 (2001), and Am. Life League, Inc. v. Reno, 47 F.3d 642, 648 (4th Cir. 1995) (FACE upheld
against First and Tenth Amendment, as well as Religious Freedom Restoration Act challenges), with Hoffman v.
Hunt, 923 F. Supp. 791, 822 (W.D.N.C. 1996) (FACE invalidated under First and Tenth Amendments (relying on
United States v. Lopez, 514 U.S. 549 (1995) (Gun-Free School Zones Act invalidated because it exceeded
congressional power under Commerce Clause))), rev’d, 126 F.3d 575, 587-88 (4th Cir. 1997) (Congress had
power under Commerce Clause to enact FACE to prohibit use of force or interference with those seeking abortions
because it had “a direct and profound effect on, the interstate commercial market in reproductive health care
services� (relying on Am. Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995))).
19 . See, e.g., United States v. Gregg, 226 F.3d 253 (3d Cir. 2000) (FACE comports with First Amendment), cert.
denied, 121 S. Ct. 1600 (2001); United States v. Weslin, 156 F.3d 292, 297-98 (2d Cir. 1998) (per curiam) (no
violation of free speech or expression found when FACE regulated use or threat of force because (1) provisions were
neither viewpoint nor content based and (2) satisfied O’Brien test because (a) governmental interests articulated
in Schenck sufficient to support statute; (b) prohibition was unrelated to speech, as compatible with peaceful
demonstrations; and (c) permitted other means of protest, such as holding signs, leafleting, and engaging in
conversation); United States v. Wilson, 154 F.3d 658, 662 (7th Cir. 1998) (United States v. Soderna holding that
FACE does not unconstitutionally impinge on protected speech foreclosed defendants’ argument that FACE was
unconstitutional); Hoffman v. Hunt, 126 F.3d 575, 588 (4th Cir. 1997) (no violation of First Amendment found when
FACE prohibited use or threat of force because violence is not protected speech (citing Wisconsin v. Mitchell, 508 U.
S. 476 (1993))); United States v. Soderna, 82 F.3d 1370, 1374-75 (7th Cir. 1996) (no First Amendment violation
found because (1) FACE was viewpoint neutral and (2) neither violence nor interference with rights of others are
protected speech); United States v. Dinwiddie, 76 F.3d 913, 922-24 (8th Cir. 1996) (no First Amendment violation
found when FACE prohibited use of force or intimidation because, though statutory restrictions that depend on
listener’s reaction cannot be content neutral, its provisions reached only non-protected speech); Terry v. Reno,
101 F.3d 1412, 1418-19 (D.C. Cir. 1996) (no First Amendment violation found because FACE satisfied Oâ
€™Brien test and was not rendered invalid by virtue of motive requirement to interfere with those seeking abortion,
as it was similar to other laws upheld by Supreme Court, such as hate crimes statutes and Title VII (relying on
Wisconsin v. Mitchell, 508 U.S. 476 (1993))); Am. Life League, Inc. v. Reno, 47 F.3d 642, 651-52 (4th Cir. 1995)
(no First Amendment violation found under O’Brien test because FACE (1) served substantial government
interests in “preventing violence, preserving public access to reproductive health services, and protecting citizens in
their exercise of constitutional rights;� (2) was aimed at harmful effects of proscribed conduct, not protestor’s
expression; and (3) was narrowly tailored to serve governmental interests, as protestors remained free to express
views in “non-violent, non-obstructive manner�); United States v. Scott, 958 F. Supp. 761, 774-75 (D. Conn.
1997) (no First Amendment violation found because FACE satisfied O’Brien test), aff’d sub nom. United
States v. Vazquez, 145 F.3d 74 (2d Cir. 1998); Planned Parenthood v. Am. Coalition of Life Activists, 945 F.
Supp. 1355, 1371 (D. Or. 1996) (no First Amendment violation found because FACE only prohibits “true threats,
� which are categorically not protected speech); United States v. Lucero, 895 F. Supp. 1421, 1425 (D. Kan.
1995) (no First Amendment violation found under O’Brien test because FACE was justified by (1) important
governmental interests in “protecting patients, physicians and clinic staff from harm and preventing physical
destruction of medical and related facilities;� (2) which were related to harmful conduct, not expression; and (3)
did not burden more speech than necessary to accomplish legitimate governmental objectives); Riely v. Reno, 860 F.
Supp. 693, 700 (D. Ariz. 1994) (no First Amendment violation found because FACE prohibited “pure conductâ
€� and threats were not protected speech); Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1426-27 (S.D.
Cal. 1994) (no First Amendment violation found because “FACE is aimed at conduct, not expression�);
United States v. Brock, 863 F. Supp. 851, 859 (E.D. Wis. 1994) (no First Amendment violation found because
prohibition applied only to non-protected speech and, despite communicated message embodied by “physical
obstruction� of abortion clinics, targeted harmful conduct, not expression, to extent it affected potentially
expressive conduct), aff’d sub nom. United States v. Soderna, 82 F.3d 1370 (7th Cir. 1996).
20.  See United States v. Gregg, 226 F.3d 253 (3d Cir. 2000), cert. denied, 121 S. Ct. 1600 (2001); United States
v. Weslin, 156 F.3d 292 (2d Cir. 1998) (per curiam), cert. denied, 525 U.S. 1071 (1999); United States v. Wilson,
154 F.3d 658 (7th Cir. 1998), cert. denied, 525 U.S. 1081 (1999); Hoffman v. Hunt, 126 F.3d 575 (4th Cir.
1997), cert. denied, 523 U.S. 1136 (1998); United States v. Bird, 124 F.3d 667 (5th Cir. 1997), cert. denied, 523
U.S. 1006 (1998); Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996), cert. denied, 520 U.S. 1264 (1997); United
States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, 519 U.S. 1006 (1996); United States v. Dinwiddie, 76 F.
3d 913 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); Woodall v. Reno, 47 F.3d 656 (4th Cir.), cert. denied, 515
U.S. 1141 (1995). But cf. Hill v. Colorado, 530 U.S. 703 (2000) (certiorari granted to hear argument on Colorado
statute similar to FACE). For a discussion of Hill v. Colorado, see discussion infra Part I. B.
21. For a detailed explanation of hate crimes legislation, see discussion supra Constitutional Law Chapter: Hate
Crimes, at ___.
22. See, e.g., United States v. Gregg, 226 F.3d 253, 267 (3d Cir. 2000) (“FACE does not regulate speech and
expression protected by the First Amendment�), cert. denied, 121 S. Ct. 1600 (2001); United States v. Wilson,
154 F.3d 658, 662-63 (7th Cir. 1998) (no First Amendment violation found when FACE prohibited use of force,
threat of force, and physical obstruction because none of prohibited activities were protected expression); United
States v. Soderna, 82 F.3d 1370, 1375 (7th Cir. 1996) (no First Amendment violation found even though FACE
proscribed potentially expressive activities because defendants’ obstruction of clinic entrances invaded othersâ
€™ property rights thereby creating harms distinct from communicative impact of expressive activities); United States
v. Dinwiddie 76 F.3d 913, 922 (8th Cir. 1996) (no First Amendment violation found when FACE proscribed threats
of violence because it merely regulated unprotected speech); United States v. Lucero, 895 F. Supp. 1421, 1425 (D.
Kan. 1995) (no First Amendment violation found because criminal conduct proscribed by FACE was not made
protected speech simply due to actor’s intentions that actions would communicate view “that legal abortion
denies justice to the unborn�); Riley v. Reno, 860 F. Supp. 693, 700 (D. Ariz. 1994) (no First Amendment
violation found when FACE reached only speech that threatened, harmed, or interfered with another’s freedom
of movement because it merely regulated pure conduct and unprotected speech); Council for Life Coalition v. Reno,
856 F. Supp. 1422, 1426 (S.D. Cal. 1994) (no First Amendment violation found because criminal conduct
proscribed by FACE was not made protected speech simply due to actor’s intentions that actions would
communicate anti-abortion message). But see Planned Parenthood v. Am. Coalition of Life Activists, 945 F. Supp.
1355, 1370 (D. Or. 1996) (FACE’s prohibition against “threats of force� regulates expressive conduct
protected by First Amendment because conduct falls outside of non-protected categories of both fighting words and
incitement of imminent lawlessness, yet prohibition was content and viewpoint neutral, served “substantial
government interests in preventing violence and preserving access to reproductive health services, and [wa]s narrowly
tailored to further those interests, without targeting the content of the expression�).
23 .  See, e.g., United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998) (per curiam) (First Amendment
intermediate scrutiny test applied because FACE regulated conduct frequently encompassing expressive
components); Terry v. Reno, 101 F.3d 1412, 1418-19 (D.C. Cir. 1996) (First Amendment intermediate scrutiny test
applied because, although FACE does not target protected speech, prohibited conduct has expressive value, as when
protestors hold temporary sit-ins that block clinic access); Am. Life League, Inc. v. Reno, 47 F.3d 642, 648 (4th
Cir. 1995) (First Amendment intermediate scrutiny test applied because FACE, though targeted at unprotected
activities, might incidentally affect conduct with expressive elements and, therefore, must satisfy intermediate scrutiny);
United States v. Scott, 958 F. Supp. 761, 774 (D. Conn. 1997) (First Amendment test applied because FACE
regulates potentially expressive conduct and, therefore, must satisfy intermediate scrutiny), aff’d sub nom. United
States v. Vazquez, 145 F.3d 74 (2d Cir. 1998); United States v. Brock, 863 F. Supp. 851, 859 (E.D. Wis. 1994)
(First Amendment test applied because FACE’s prohibition on “physical obstruction� could reach
protected expressive conduct executed by traditional forms of protest, such as leafleting or picketing, and, therefore,
must meet the following intermediate scrutiny requirements: (1) content-neutrality; (2) important governmental interest;
(3) necessary for furthering and narrowly tailored to serve that interest), aff’d sub nom. United States v. Soderna,
82 F.3d 1370 (7th Cir. 1996).
24 .  See, e.g., United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998) (per curiam) (FACE is content neutral
because statute proscribed obstruction of abortion clinics regardless of message promoted by demonstrators, even
though most defendants prosecuted under the statute were against abortion); Terry v. Reno, 101 F.3d 1412, 1419
(D.C. Cir. 1996) (FACE is content neutral prohibition on interference with provision of reproductive health services,
not just provision of abortions nor services by anti-abortion protesters, and unrelated to suppression of free
expression); Am. Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir. 1995) (FACE is content neutral because it
protects all providers of reproductive health services and penalizes any person who engages in proscribed conduct
because statute aimed to deter harmful effects, not content of speech); United States v. Brock, 863 F. Supp. 851,
859 (E.D. Wis. 1994) (FACE held content neutral when it could reach other forms of protest because provisions
were unrelated to speech), aff’d sub nom. United States v. Soderna, 82 F.3d 1370 (7th Cir. 1996).
25. See United States v. Gregg, 226 F.3d 253, 267 (3d Cir. 2000) (“FACE is not viewpoint-based.�), cert.
denied, 121 S. Ct. 1600 (2001); United States v. Dinwiddie 76 F.3d 913, 921-22 (8th Cir. 1996) (“[T]here is
no disparate-impact theory in First Amendment law. The fact that a statute, whether through a motive requirement or
some other mechanism, disproportionately punishes those who hold a certain viewpoint does not ‘itself render the
[statute] content or viewpoint based.’ � (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,
763 (1994))).
26 . For a detailed explanation of the O’Brien test for analyzing symbolic speech that has both speech and non-
speech elements, see discussion supra Constitutional Law Chapter: Introduction to the First Amendment, at ___.  
Note that the finding of content neutrality satisfies the second prong of the O’Brien test. See United States v
Dinwiddie 76 F.3d 913 (8th Cir, 1996).
27.  See, e.g., Terry v. Reno, 101 F.3d 1412, 1419 (D.C. Cir. 1996) (sustained FACE); Am. Life League, Inc. v.
Reno, 47 F.3d 642, 651 (4th Cir. 1995) (sustained FACE); see also United States v. Weslin, 156 F.3d 292, 297
(2d Cir. 1998) (per curiam) (upheld FACE).
28 . See, e.g., Terry v. Reno, 101 F.3d 1412, 1419 (D.C. Cir. 1996) (“The statute furthers several important
government interests, not the least of which are ensuring access to lawful health services and protecting the
constitutional right of women seeking abortions and other pregnancy-related treatment.�); Am. Life League, Inc.
v. Reno, 47 F.3d 642, 651 (4th Cir. 1995) (FACE furthers several substantial government interests, including (1)
ensuring that patients and staff members are free of violence and harm; (2) preventing physical destruction or damage
to facilities; (3) “protecting interstate patient traffic and the interstate market for the services of doctors, nurses,
counselors, and other staff;� and (4) “protecting women and men from violence and threats in the exercise of
their rights . . . [which include] the constitutional right to terminate a pregnancy�); see also United States v. Weslin,
156 F.3d 292, 297 (2d Cir. 1998) (per curiam) (government interests identified in Schenck to uphold injunction were
sufficient to uphold FACE (citing Schenck v. Pro-Choice Network, 519 U.S. 357 (1997))).
29.  See, e.g., United States v. Weslin, 156 F.3d 292, 298 (2d Cir. 1998) (per curiam) (ample alternative means of
communication found under FACE because protestors wishing to exercise free speech rights are still “at liberty to
hold signs, pass out handbills, speak conversationally, and so forth, anywhere and anytime they choose�); Am.
Life League, Inc. v. Reno, 47 F.3d 642, 652 (4th Cir. 1995) (ample alternative means of communication found under
FACE because it permits individuals to express anti-abortion messages in a “non-violent, non-obstructive mannerâ
€� via “voice, signs, handbills, symbolic gestures and other expressive meansâ€�).
30.  See, e.g., United States v. Roach, 947 F. Supp. 872, 876 (E.D. Pa. 1996) (FACE has no impermissible chilling
effect, as a matter of law, on protected speech as applied in prosecutions of abortion protestors who used or
threatened to use violence).
31.  506 U.S. 263 (1993).
32.  Id. at 269-70 (42 U.S.C.A. § 1985(3) (West, WESTLAW through Oct. 26, 2001) provides: “If two or
more persons in any State or Territory conspire or go into disguise on the highway or on the premises of another, for
the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the
equal protection of the laws . . .�) (emphasis added).
33.  Id.
34.  Id. at 275-79 (referencing the discussion in Carpenters v. Scott, 463 U.S. 825 (1983), where the Court â
€œmakes clear that it does not suffice for application of § 1985(3) that a protected right be incidentally affected . . .
its impairment must be a conscious objective of the enterprise�).
35.  The “hindranceâ€� clause of § 1985(3) covers conspiracies “for the purpose of preventing or hindering
the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory
the equal protection of the laws.� Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 279 (1993)
(quoting 42 U.S.C. § 1985(3)); see also, Portland Feminist Women’s Health Ctr. v. Advocates for Life, 62 F.
3d 280, 282 (9th Cir. 1995) (court reversed jury verdict in favor of plaintiffs, abortion clinic on behalf of class of
women who sought to exercise their right to have an abortion, because although evidence supported plaintiffs' claim
under the "hindrance" clauses of § 1985(3) its claim under the "deprivation" clause of § 1985(3) was not
supported).
36.  530 U.S. 703 (2000).
37.  Hill v. Colorado, 530 U.S. 703, 713-17 (2000).
38.   See COLO. REV. STAT. ANN. § 18-9-122(2) (West, WESTLAW through 2001 1st Reg. Sess.) (criminal
penalties and civil liability imposed for any person who “knowingly obstructs, detains, hinders, impedes, or blocks
another person’s entry to or exit from a health care facility�). The statute creates a floating buffer zone of eight
feet around any individual who is within 100 feet of a health care facility and prohibits persons from approaching
another without her consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in
oral protest, education, or counseling with such other person in the public way or sidewalk area.� Id. § 18-9-
122(3).
39.  Hill v. Colorado, 530 U.S. 703, 715-17 (2000) (quoting Rowan v. United States Post Office Dep’t, 397 U.
S. 728, 738 (1970)).
40.  See id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 753 (1994)).
41.  See id.; see also, Madsen v. Women’s Health Ctr., Inc., 512 U.S. 573 (1994); NLRB v. Baptist Hosp.,
Inc., 442 U.S. 773 (1979).
42. Hill v. Colorado, 530 U.S. 703, 718-20 (2000) (rationale from Ward reiterated that “the principle inquiry in
determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether
the government has adopted a regulation of speech because of disagreement with the message it conveys.�
(quoting Ward v. Rock Against Racism, 491 U.S. 781 (1989))).
43.  Id.
44.  Id. at 718-20.
45.  Id. at 724-26.
46. 260 F.3d 36, 39 (1st Cir. 2001) (where floating buffer zone applied to patients and vehicles within eighteen feet
of clinic entrance and only during clinic’s operational hours).
47. Id. at 41.
48. Id. at 44 (court concluding that the Act’s goals justified its specific application when investigations revealed
that “abortion protestors are particularly aggressive and patients particularly vulnerable as they enter or leave
[clinics].�).
49.  487 U.S. 474 (1988).
50.  See id. at 476-88 (The speech prohibition resulted from a group of eleven to forty protestors gathering on a
public street outside the home of a doctor that performs abortions. The “orderly and peaceful� picketing at the
doctor’s residence occurred six times in a period of two months, with each gathering lasting sixty to ninety
minutes. The protestors did not engage in behavior that invoked any other ordinance, such as “prohibiting
obstruction of the streets, loud and unnecessary noises, or disorderly conduct.�).
51.  See id. at 477.
52.  See id. at 478-88.
53.  See id. at 481 (the standards that restrictions on speech in traditional public fora must meet, was articulated by
stating principles previously set forth. “In these quintessential public for[a], the government may not prohibit all
communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is
necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may
also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored
to serve a significant government interest, and leave open alternative channels of communication.� (citations
omitted) (quoting Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983))).
54.  Id. at 477 (Court held the ordinance content neutral and would therefore be upheld if “narrowly tailored to
serve a significant government interest.�).
55.  Frisby v. Shultz, 487 U.S. 474, 484 (1988) (reliance on previous decisions laid the framework for the
proposition of residential privacy, for example, “[t]he State’s interest in protecting the well-being, tranquility,
and privacy of the home is certainly of the highest order in a free and civilized society.� (quoting Carey v. Brown,
447 U.S. 471 (1980))).
56.  Id. at 485 (“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the â
€˜evil’ it seeks to remedy.â€� (quoting City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-10
(1984))).
57.  Id. at 483.
58 Id. at 484 (examples given by the Court include “enter[ing] such [residential] neighborhoods, alone or in
groups, even marching . . . They may go door-to-door to proselytize their views. They may distribute literature in this
manner . . . or through the mails. They may contact residents by telephone, short of harassment.� (quoting Brief
for Appellants 41-42)).
59 .  The Supreme Court has rejected the argument that court orders enjoining “only the speech of antiabortion
protestersâ€� is content or viewpoint based by virtue of its specific application to the defendant protestors, as an â
€œinjunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and
perhaps the speech, of that group.� Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 762 (1994).
60.  See id. at 765 (“[W]hen evaluating a content-neutral injunction, we think that our standard time, place, and
manner analysis is not sufficiently rigorous….Injunctions are subject to slightly more stringent review than would a
generally-applicable statute containing the same substance.�).
61.  See N.E. Women’s Ctr., Inc. v. McMonagle, 939 F.2d 57, 62-68 (3d Cir. 1991) [hereinafter McMonagle
II] (discusses the rights of individuals to use public venues for communications issues that are of national interest and
debate not being absolute, and individuals with a prior history of violence and other illegal acts while protesting, may
be used to lower the scrutiny in subsequent actions against those individuals).
62.  510 U.S. 249 (1994).
63.  See id. at 251-54 (charges alleged extortion, a violation of the Hobbs Act, which is a violation of the Racketeer
Influenced and Corrupt Act (RICO) chapter of the Organized Crime Control Act of 1970 (OCCA), 18 U.S.C.A.
§§ 1961-1968 (West, WESTLAW through Oct. 26, 2001)).
64.  See N.O.W., Inc. v. Scheidler, 510 U.S. 249, 255-62 (1994).
65.  512 U.S. 753 (1994).
66 .  Id. at 794.
67.  Id.
68.  The test in Ward clearly articulated the four requirements for a time, place, and manner restriction to be
constitutional. It must be: (1) content neutral; (2) serve a significant state interest; (3) narrowly tailored to fit that
significant government interest; and (4) leave open ample alternative means of communication. See Ward v. Rock
Against Racism, 491 U.S. 781 (1989).
69.  See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 762 (“Our principle inquiry in determining
content neutrality is whether the government has adopted a regulation of speech without reference to the content of
the regulated speech� (internal quotation marks omitted) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989))).
70.  Id. at 764-65 (injunctions enjoining violations of legislative or judicial decrees required higher level of scrutiny
than traditional time, place, and manner analysis for statutory restrictions on expressive activity because judicial
restraints “carry greater risks of censorship and discriminatory application than do general ordinances�).
71 .  Id.
72.   See id. at 768-71. The Court cited the government interest in traffic flow, the safety and well-being of patients,
and the right to obtain pregnancy-related services. See id. In striking the latter portions of the injunction, the Court
reasoned that these prohibitions were not narrowly tailored to serve the governmental interests, and alternative means
of serving those objectives were available. For example, clinics can close the curtains or blinds to protect patients
inside the facility from observing disagreeable images. See id.
73.  See, e.g., Planned Parenthood League v. Bell, 677 N.E.2d 204, 211-12 (Mass. 1997) (fifty-foot fixed buffer
zone around clinic burdened no more speech than necessary as applied to individual protestor when individual had
previously impersonated clinic staff, shouted loudly near clinic, and obstructed, harassed, and intimidated persons
attempting to enter clinic). But see United States v. Mahoney, 247 F.3d 279, 281 (D.C. Cir. 2001) (injunction
restricting abortion protestors of from coming within twenty-five foot radius overbroad); Lucero v. Trosch, 121 F.3d
591, 605-06 (11th Cir. 1997) (twenty-five foot buffer zone around abortion clinic burdened no more speech than
necessary because defendants could express message outside of buffer zone, but 200-foot buffer zone around staff
residences was found unconstitutional when it prohibited picketing, demonstrating, and use of sound equipment,
because it effected general ban on protesting).
74.  519 U.S. 357 (1997).
75.  Id. at 359 (no First Amendment violation found when injunction imposed fifteen-foot buffer zone because lower
court determined that it was reasonable distance to ensure access to facility).
76.  Id. at 360.
77.  Id. at 383-85 (cease-and-desist provisions in effect, allowed two counselors within the fixed buffer zone unless a
counselee requested counselor to “cease and desist�).
78.  Id. at 376 (no First Amendment violation found because governmental interests were “certainly significant
enough to justify an appropriately tailored injunction�).
79.  See Schenck v. Pro-Choice Network, 519 U.S. 357, 375, 392-93 (1997) (citing Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753 (1994)).
80.  See id. at 358, 377 (First Amendment violation found when injunction creating floating buffer zone restricted “
[l]eafletting and commenting on matters of public concern� because those types of speech “are classic forms of
speech that lie at the heart of the First Amendment�).
81.  See id. (First Amendment violation found when injunction creating floating buffer zone restricted speech on
public sidewalks, which are “a prototypical example of a traditional public forum� where “speech . . . is at
its most protected�).
82.  Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997).
83 .  Id.
84.  See id.
85.  Id. at 377.
86. 273 F.3d 184, 195 (2d Cir. 2001) (protestor acted in such a way as to have physically obstructed clinic
entrance).
87. Id. at 203-205 (buffer zone extending along the entire public sidewalk, 60 feet from clinic entrance, was â
€œmore than necessary to effectuate the articulated state interests,â€� because it imposed a severe burden on First
Amendment rights by preventing protestors from engaging in protest from a “normal conversational distance�).
88.  Id. at 207 (the expansion of the buffer zone past the neighboring gas station and dry cleaner was particularly
suspect and attenuated from its goal of “guaranteeing clinic access.�)
89. See Jason Schlosberg, Judgment on “Nuremberg�: An Analysis of Free Speech and Anti-Abortion
Threats Made on the Internet, 7 B. U. J. SCI. & TECH. L. 52 (2001).
90. See id.
91. 23 F. Supp. 2d 1182 (D. Or. 1998), vacated and remanded, 244 F.3d 1007, 1017 (9th Cir.), reh’g en banc
granted, 268 F.3d 908 (9th Cir. 2001).
.  See id. at 1190.
93. See Ashley Packard, Threats or Theater: Does Planned Parenthood v. American Coalition of Life Activists
Signify that Tests for “True Threats� Need to Change?, 5 COMM. L. & POL’Y. 235, 237 (2000).
94. Id. at 237 (federal jury in Oregon awarded $109 million to the abortion providers, who had been threatened by
abortion protestors both on a web site and in “wanted styleâ€� posters.  In determining whether the defendantsâ
€™ speech constituted true threats, the district court asked “whether a reasonable person issuing the ‘wantedâ
€™ poster and information on the Web site would have known that those named in the posters and on the Web site
would feel threatened.� (web site itself contained the names of murdered doctors with lines drawn through them;
the names of injured doctors were shaded in gray)).
95. Defendants included American Life Activists and Advocates for Life Ministries.  See id.
96. Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 244 F.3d 1007,
1017 (9th Cir.), reh’g en banc granted, 268 F.3d 908 (9th Cir. 2001).
97. Id. at 1017.
98. Id. at 1018 (The court further explains: “The defendants come closest to suggesting violence on the web
pages, where the names of doctors are stricken and the wounded ones are grayed.  We read the striketype and
graying as the equivalent of making ‘killed’ or ‘wounded’ next to the names.  This clearly reports the
past violence against the several hundred doctors, politicians, judges, and celebrities on the list; otherwise any
statement approving past violence could automatically be construed as calling for future violence.�).
99.  Id. at 1015 (comparison of the speech used by civil rights activist Charles Evers aimed at maintaining a boycott
of stores: “If we catch any of you going any of them racist stores, we’re gonna break your damn necks.�
The Supreme Court determined this speech was constitutionally protected in that there was insufficient evidence that
the speech itself was “directly threatening� acts of violence.).
100.  244 F.3d 1007 (9th Cir.), reh’g en banc granted, 268 F.3d 908 (9th Cir. 2001).


GO TO HOME PAGE