Federal appeals panel rejects First Amendment defense of anti-abortion activist

Friday, May 5, 2000

A federal law protecting access to abortion clinics — the Freedom of Access to Clinics Entrances Act — does not violate the First Amendment, a federal appeals court panel has ruled.

J. Fred Hart Jr., an attorney from Little Rock, Ark., was convicted in 1998 of violating the law when he rented two Ryder trucks and parked one in each driveway of two abortion clinics.

The law, often referred to as FACE, imposes criminal penalties on anyone who
“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 because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.”

Prosecutors argued that Hart’s actions in blocking the driveways with the Ryder trucks could be considered a “threat of force” in part because the notorious 1995 Oklahoma City federal building bombing involved a Ryder truck. Hart countered that merely parking a truck in a driveway cannot constitute a “threat of force.” Hart also argued that his action was a form of expressive conduct protected by the First Amendment.

In November 1998, a jury convicted Hart for violating FACE. He was sentenced to four years of probation with the first year to be served in home detention.

On appeal, a three-judge panel of the 8th U.S. Circuit Court of Appeals unanimously agreed in U.S. v. Hart.

The panel rejected Hart’s appeal, including his First Amendment claims. Hart argued that the FACE Act targets anti-abortion activists and is an unconstitutional, content-based law.

Hart also argued that even if FACE is not considered to be content-based, his placement of the Ryder trucks at the entrance of the clinics constituted a form of expressive conduct that merited First Amendment protection.

“That the FACE Act disproportionately impacts anti-abortion protestors does not transform its prohibitions into content-based restrictions,” the court wrote. “Furthermore, although the FACE Act prohibits ‘threats of force,’ to which an expressive element may attach and warrant some First Amendment protection, the government may limit such expression subject to intermediate scrutiny.”

The panel determined that the government has a significant interest in ensuring the availability of reproductive health services and that the government’s interest is not related to the suppression of free expression.

Hart’s attorney was out of town and unavailable for comment. Calls to the Department of Justice were not returned.