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The federal Freedom of Access to Clinic Entrances Act is constitutional, and violators should be held jointly and severally liable when assessed statutory damages, the 3rd U.S. Circuit Court of Appeals has ruled. FACE was enacted in 1994 and imposes civil penalties on those who obstruct the entrance to an abortion clinic or threaten those seeking services at a clinic. The act also prohibits intentional damage or destruction of a facility because it provides reproductive health services. The appeals court, with one judge dissenting, upheld U.S. District Court of New Jersey Judge John C. Lifland’s decision surrounding several protests at an Englewood, N.J., reproductive health clinic. On April 18, 1997, the U.S. Attorney General in New Jersey filed a complaint for injunctive relief and statutory damages against 30 defendants alleging they were “an ongoing threat” to Metropolitan Medical Associates. The AG wanted to pursue statutory damages of $5,000 per defendant who had protested in either one, two or three protests. The district court initially granted a preliminary injunction and, in December 1998, granted the attorney general’s motion for summary judgment. The district court then said Congress intended the statutory damages of $5,000 to be assessed per violation against all defendants severally. The attorney general appealed, asking the higher federal court to find the defendants individually liable, rather than jointly and severally liable. Several defendants cross-appealed, saying the attorney general did not have the right to impose statutory damages without proof of actual damages. The defendants also argued that FACE violated the Commerce Clause of the U.S. Constitution and the First Amendment’s guarantee of freedom of speech. The appeals court, led by visiting Senior Judge James L. Oakes of the 2nd Circuit and joined by Judge Edward R. Becker, affirmed the district court. Judge Joseph F. Weis filed a separate dissenting opinion. PENALTIES FACE provides that a temporary or permanent injunction and compensatory and punitive damages may be obtained if the act is violated. FACE also allows a plaintiff in a civil action to recover $5,000 in statutory damages per violation in lieu of the actual damages. The act also allows the government to file such a civil action if they feel the act has been violated. “The attorney general argues that the district court incorrectly awarded statutory damages per violation presumably to be shared by the defendants involved with each blockade and contends that FACE and its goals require statutory damages to be awarded $5,000 per defendant,” Oakes wrote. “We agree with the district court that the ‘dichotomy of expression’ between the civil remedy provisions of FACE demonstrates Congress’ intent that statutory damages be imposed per violation and jointly and severally among the defendants who participated in the blockade.” The court said because Congress chose to use the words “per violation,” rather than “against each respondent,” in constructing the language of the statute, Congress intended the civil penalties to be assessed jointly and severally. “Because the legislative history of FACE indicates that the purpose of the statutory damages is to compensate, it follows that Congress intended that compensatory statutory damages be awarded per violation, regardless of how many people participated in the misconduct,” Oakes wrote. The attorney general argued that such an interpretation would encourage violators to organize larger groups, but the court said such reasoning was not convincing because the “clinic blockaders” would not know whether a private citizen or the attorney general would always opt for statutory rather than actual damages. The cross-appealing defendants argued that the attorney general should not be allowed to opt for statutory damages in lieu of actual damages, but the court rejected their argument. CONSTITUTIONALITY The first constitutional issue the defendants brought on appeal was whether FACE falls under Congress’s authority under the commerce clause of the U.S. Constitution. The appeals court said the issue has been “much discussed” in appeals courts across the nation. The court said it would join with the decisions of its “sister courts” and find that FACE is a proper exercise of Congress’ power. The court said that a shortage of abortion-related services has forced there to be a “national market” for such reproductive health-related services. The court gave examples of the need for women to drive to states other than their home state for abortion services. “In sum, we conclude that the activity regulated by FACE is economic in nature,” Oakes wrote. “We further determine that due to the national nature of reproductive health services and anti-abortion protests, the civil penalty provision is within the boundaries of Congress’s power to regulate interstate commerce.” The defendants next said FACE violated free speech, arguing the act is a “viewpoint-based restriction.” The court disagreed, however, ruling that FACE prohibits the conduct outlined in the law regardless of the motivation of the conduct. The court further pointed out that FACE “governs conduct, not speech.” “FACE serves the important governmental interest in ensuring public safety and a woman’s right to seek reproductive health services; this interest is unrelated to the suppression of free speech; and FACE is narrowly tailored to meet these ends,” the court wrote. DISSENT In his dissenting opinion, Weis said he did not believe FACE could withstand “constitutional scrutiny.” He focused much of his dissent on discussing specifically why FACE was not a legal expression of Congress’s commerce power. “FACE prohibits third parties from interfering with patients and staff entering abortion clinics, as well as from inflicting damage to the property itself,” Weis wrote. “By its plain language, the statute is directed against the conduct of those external to a clinic’s operations.” “As the proscribed activity, a protester’s conduct does not involve a purchase, sale or any exchange of value in return for the rendering of a service, and cannot in any sense be deemed economic or commercial in character.” Weis said although blocking a clinic may ultimately reduce revenue, such conduct is criminal, rather than commercial, in nature. “FACE is a glaring example of the federalization of local criminal law that is fatally flawed in its implementation because it regulates activities with no commercial character,” Weiss wrote. “The statute contains no jurisdictional element which might cabin its operation within the confines of the Commerce Clause, and the congressional findings fail to provide the necessary justification for federal intrusion into local law enforcement.” Weis said, however, if he were to reach the damages issue in the case, he would agree with the majority that violators should be jointly and severally liable per incident when assessed with statutory damages.

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