Using the FACE Act to curb the free speech rights of abortion protestors

In response to a spate of bombings against abortion providers in the 1980s and early 1990s, the Democratic controlled Congress passed the Freedom of Access to Clinic Entrances (FACE) Act in 1994 that made it a crime to commit violence against abortion providers or block a woman’s access to abortion clinics. According to Tom McClusky at the Family Research Council, “the story I normally got from Justice Department, Hill and real world lawyers on both sides of the aisle was that everyone understood the law was unconstitutional and could be a weapon of mutual assured destruction.”

For years the DOJ resisted enforcing the more dubious aspects of the law and simply concentrated on prosecuting those whose committed violent acts in criminal court, but all that changed when Obama took office. Never one to shy away from unconstitutional behavior, under Eric Holder’s leadership the DOJ has moved full speed ahead at trampling the free speech rights of anti-abortion activists. Now even peaceful protests in front of an abortion clinic were enough to earn you a trip to court complements of the Civil Rights Division.

The dead giveaway to the unconstitutional nature of the Holder’s enforcement efforts was the use of civil courts to prosecute the cases. With a less burden of proof as compared to criminal proceedings, the DOJ found a way to intimidate abortion protestors and force them to spend a lot time and money defending themselves from frivolous lawsuits. Hans von Spakovsky, Counsel to the Assistant Attorney General for the Civil Rights Division during the Bush administration, agrees civil actions are being pursued “because they know they don’t have the evidence” to file criminal charges.

Troy Newman of Operation Rescue is convinced the DOJ is using the FACE Act as “a political tool to shut them up, shut them down and make them go away.” Newman sees the civil actions as “a ridiculous overstepping of the federal government’s bounds and with the intent of restricting our freedom, our liberties and our speech.”

Thomas E. Perez, assistant attorney general for the Civil Rights Division, has gone so far as to label 79-year-old grandfather of eleven Dick Retta, who has been credited with helping nearly 350 women forgo abortion and keep their babies, with being a “hazardous physical obstruction”. The DOJ is demanding that Retta pay a $10,000 civil penalty for violating the FACE Act and pay $15,000 in damages to his alleged victims, one of whom accused him of breaking a shoe strap when he accidentally stepped on her foot.

The charges against Retta by the DOJ are a list of constitutionally protected rights including “Retta has been among the most vocal and aggressive anti-abortion protesters outside of the Clinic”, “Retta frequently walks very closely beside patients as they walk to the Clinic” and “Defendant frequently follows patients to the Clinic entrance and continues to yell at the patient as the door closes”. Now that Obama is President standing, walking and yelling are now prosecutable crimes.

The irony of a DOJ that had no problem dropping charges against baton wielding New Black Panthers while at the same time trying to convict Retta was not lost on Hans A. Von Spakovsky:

Retta was not dressed in a black paramilitary uniform, he was not carrying a nightstick, and he was not yelling racial epithets or blocking the entrance to a polling place… Somehow the behavior and speech of a 79-year-old sidewalk counselor violates federal law against intimidation, but the speech and behavior of the New Black Panthers in Philadelphia in 2008 was just fine.

Another victim of the DOJ witch hunt was Mary Susan Pine, “a woman who for more than 20 years has engaged in peaceful sidewalk counseling for women seeking abortions in West Palm Beach.” Without any proof of wrongdoing, the Civil Rights Division dragged her into court and accused her of being in violation of the FACE Act. After reviewing the evidence federal Judge Kenneth L. Ryskamp concluded:

The record [is] almost entirely devoid of evidence that Ms. Pine acted with the prohibited motive and intent or that Ms. Pine engaged in any unlawful conduct.

Stretching the terms of FACE to apply to this case so that a desire to provide people with information about alternatives to abortion constitutes an unlawful motive, would unjustifiably impinge on Ms. Pine’s First Amendment rights.

After almost two years of litigation “the DOJ abandoned its appeal of Ryskamp’s decision. Accordingly, Pine has been awarded $120,000 for attorneys’ fees, and the DOJ has agreed to permanently drop the case against her.”

4 Responses to “Using the FACE Act to curb the free speech rights of abortion protestors”

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