United States v. Regina R. Dinwiddie

_____________
No. 95-1803WM
_____________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri.
Regina Rene Dinwiddie, *
*
Appellant. *
___________
Submitted: November 13, 1995
Filed: February 16, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and FAGG, Circuit
Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
Regina Rene Dinwiddie appeals from the District Court's order
finding that she violated the Freedom of Access to Clinic Entrances
Act of 1994, 18 U.S.C. § 248 ("FACE"). The order prohibits Mrs.
Dinwiddie from further violating FACE and from engaging in a number
of other activities whenever she is within 500 feet of a facility
that provides reproductive-health services. See United States v.
Dinwiddie, 885 F. Supp. 1286 (W.D. Mo. 1995). We affirm the
District Court's holding that FACE is constitutional and that Mrs.
Dinwiddie violated FACE, but remand to the District Court with
instructions to modify the injunction.
I.
Regina Rene Dinwiddie is an opponent of abortion who, for many
years, has protested outside of Planned Parenthood of Greater
Kansas City ("Planned Parenthood"), a clinic where abortions are
performed. The government filed a complaint against Mrs.
Dinwiddie, alleging that she violated the Freedom of Access to
Clinic Entrances Act, which provides criminal and civil penalties
against 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.
18 U.S.C. § 248(a)(1).1 The District Court concluded that Mrs.
1
FACE also provides penalties against anyone who:
(2) 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 lawfully exercising or seeking to
exercise the First Amendment right of
religious freedom at a place of religious
worship; or
(3) intentionally damages or destroys the
property of a facility, or attempts to do so,
because such facility provides reproductive
health services, or intentionally damages or
destroys the property of a place of religious
worship.
18 U.S.C. § 248(a).
FACE contains the following definitions:
(1) Facility.--The term "facility" includes a
hospital, clinic, physician's office, or other
facility that provides reproductive health
-2-
Dinwiddie violated FACE by obstructing, using physical force
against, and threatening to use physical force against a number of
Planned Parenthood's patients and members of its staff.
The Court found that Mrs. Dinwiddie directed particularly
pointed threats at Dr. Robert Crist, a physician who is the Medical
Director of Planned Parenthood. Over a six- to eight-month period
beginning in mid-1994, the defendant made approximately 50 comments
to Dr. Crist, often through a bullhorn, warning "Robert, remember
Dr. Gunn [a physician who was killed in 1993 by an opponent of
abortion] . . .. This could happen to you . . .. He is not in the
world anymore . . .. Whoever sheds man's blood, by man his blood
shall be shed . . .."
services, and includes the building or
structure in which the facility is located.
(2) Interfere with.--The term "interfere with"
means to restrict a person's freedom of movement.
(3) Intimidate.--The term "intimidate" means to
place a person in reasonable apprehension of bodily
harm to him- or herself or to another.
(4) Physical obstruction.--The term "physical
obstruction" means rendering impassable ingress to
or egress from a facility that provides
reproductive health services or to or from a place
of religious worship, or rendering passage to or
from such a facility or place of religious worship
unreasonably difficult or hazardous.
(5) Reproductive health services.--The term
"reproductive health services" means
reproductive health services provided in a
hospital, clinic, physician's office, or other
facility, and includes medical, surgical,
counselling or referral services relating to
the human reproductive system, including
services relating to pregnancy or the
termination of a pregnancy.
18 U.S.C. § 248(e).
-3-
The District Court also determined that Mrs. Dinwiddie
threatened and, on one occasion, used physical force against other
members of Planned Parenthood's staff and some of its patients. On
January 28, 1994, the defendant said to Patricia Brous, the
Executive Director of Planned Parenthood, "Patty, you have not seen
violence yet until you see what we do to you." According to Ms.
Brous, whose testimony the Court found credible, "the words that
have been thrown, through the bullhorn or otherwise, at staff and
patients have become much more violent. There is a higher level of
stress. We have had to have counselors deal with stress among the
staff." On July 28, 1994, Mrs. Dinwiddie physically assaulted
Lenard Venable, a Maintenance Supervisor at Planned Parenthood,
with an electric bullhorn. Also, she physically obstructed
potential patients from entering the clinic.
Dr. Crist, Ms. Brous, and other members of Planned
Parenthood's staff testified that Mrs. Dinwiddie's conduct has
caused them to fear for their personal safety. Dr. Crist stated
that because of his fear of the defendant, he now wears a bullet-
proof vest. Planned Parenthood has responded to Mrs. Dinwiddie by
placing an armed guard at its front door.
Finally, the District Court noted that Mrs. Dinwiddie is a
well-known advocate of the viewpoint that it is appropriate to use
lethal force to prevent a doctor from performing abortions.2
2
Mrs. Dinwiddie signed a petition defending Michael Griffin,
who was convicted of killing Dr. David Gunn. In part, the petition
states:
We, the undersigned, declare the justice of taking all
godly action necessary to defend innocent human life
including the use of force. We proclaim that whatever
force is legitimate to defend the life of a born child is
legitimate to defend the life of an unborn child. We
assert that if Michael Griffin did in fact kill David
Gunn, his use of lethal force was justifiable provided it
was carried out for defending the lives of unborn
children.
-4-
Citing this viewpoint and Mrs. Dinwiddie's conduct towards Planned
Parenthood's staff and patients, the Court determined that the
defendant is likely to continue to violate FACE and is an imminent
threat to public safety.
The District Court issued a permanent injunction that orders
Mrs. Dinwiddie not to violate FACE and "not [to] be physically
located within 500 feet of the entrance of any facility (a `buffer
zone') in the United States that provides reproductive health
services as contemplated by [FACE]." 885 F. Supp. at 1296. There
is an exception to this 500-foot buffer zone. Mrs. Dinwiddie may
be "physically located within 500 feet of the entrance of any
facility in the United States that provides reproductive health
services as contemplated by [FACE] solely for the purpose of
engaging in legitimate personal activity that could not be remotely
construed to violate [FACE]." Ibid. The Court then provided
examples of what constitutes "legitimate personal activity":
Legitimate personal activity would include, for example,
activity such as: (1) acquiring routine personal health
services; (2) accompanying an immediate family member who
is both in need of assistance and is acquiring health
services; (3) receiving personal health services in an
emergency situation; (4) shopping at a retail store or
pharmacy adjacent to a reproductive health facility; (5)
travelling within a buffer zone while engaged in activity
unrelated to any service provided by a reproductive
health facility; (6) peacefully carrying a placard in a
manner that would not constitute intimidation,
interference, or physical obstruction; (7) peacefully
distributing literature in a manner that would not
constitute intimidation, interference, or physical
Mrs. Dinwiddie has expressed similar sentiments on other
occasions. For instance, on a television program, Mrs. Dinwiddie
was asked whether it is "right to be able to kill a doctor to save
that unborn child." She responded: "I think that abortion is a
violent, violent business and that violence begets violence. The
Scriptures say that if you live by the sword, you die by the
sword." Such statements are protected under the First Amendment,
but they may also be relevant to show that other statements could
reasonably be understood as threats of physical harm.
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obstruction; or (8) unamplified speaking in a manner that
would not constitute intimidation, interference, physical
obstruction, or violation of a local noise ordinance.
Legitimate personal activity would not include, for
example, activity that: (1) is described in part III.A.
[i.e. 885 F. Supp. at 1290-94] of this permanent
injunction; (2) constitutes intimidation, physical
obstruction, interference, force, or threats of force;
(3) involves any use whatsoever of a bullhorn, megaphone,
or other sound or voice amplifying device; (4) brings
defendant in violation of any local noise ordinance; or
(5) brings defendant in violation of laws related, but
not limited, to assault, battery, trespass, harassment,
vandalism, disturbing the peace, destruction of property,
or unlawful possession of weapons, when such activity
also has the effect of violating FACE.
Id. at 1296-97.3
Mrs. Dinwiddie raises several arguments on appeal. First, she
argues that FACE is unconstitutional. Second, Mrs. Dinwiddie
asserts that she did not violate FACE. Finally, she claims that
the permanent injunction is vague and overbroad.
II.
Mrs. Dinwiddie contends that FACE is unconstitutional because
Congress lacked the authority to enact FACE and because FACE
violates the Free Speech Clause of the First Amendment. We hold
that FACE is within Congress's commerce power and is not facially
inconsistent with the First Amendment.
A.
The Constitution grants to Congress the power "[t]o regulate
3
The District Court subsequently found that Mrs. Dinwiddie
violated the permanent injunction and was guilty of civil contempt
of court. United States v. Dinwiddie, 885 F. Supp. 1299 (W.D. Mo.
1995). The contempt order is not before us on this appeal.
-6-
Commerce . . . among the several States . . .." U.S. Const., Art.
I, § 8, cl. 3. Congress may use this commerce power: to regulate
the channels of interstate commerce, to regulate or protect the
instrumentalities of interstate commerce or people or things
involved in interstate commerce, and to regulate conduct that has
a substantial effect on interstate commerce. United States v.
Lopez, 115 S. Ct. 1624, 1629-30 (1995). FACE falls within both the
second and third of these categories of commerce power.
1.
The Commerce Clause permits Congress to "protect . . . persons
or things in interstate commerce, even though the threat may come
only from intrastate activities." Id. at 1629. See Perez v.
United States, 402 U.S. 146, 150 (1971) (Congress may prohibit
thefts from interstate shipments); United States v. Coombs, 12 Pet.
72, 77 (1838) (Congress may punish conduct that "interferes with,
obstructs or prevents" interstate commerce). Thus, if Planned
Parenthood of Greater Kansas City, its staff, or its patients are
"in interstate commerce," FACE's protection of them from Mrs.
Dinwiddie's disruptive activities is a valid exercise of the
commerce power.
Planned Parenthood has a number of patients and staff who do
not reside in Missouri and who, therefore, engage in interstate
commerce when they obtain or provide reproductive-health services.
Substantial numbers of women travel across state lines to obtain
reproductive-health services. S. Rep. No. 117, 103d Cong., 1st
Sess. 13-14, 31 (1993); Bray v. Alexandria Women's Health Clinic,
113 S. Ct. 753, 792 (1993) (Stevens, J., dissenting) (between 20
and 30 per cent. of patients at a Virginia abortion clinic were
from outside Virginia, and a majority of a Maryland clinic's
patients were from outside Maryland); Women's Health Care Services
v. Operation Rescue, 773 F. Supp. 258, 266-67 (D. Kan. 1991), rev'd
on other grounds, 24 F.3d 107 (10th Cir. 1994) (between 8 and 10
-7-
per cent. of the patients at one Wichita, Kansas, clinic were from
outside of Kansas, and 44 per cent. from another Wichita clinic
were from out of state). The interstate nature of Planned
Parenthood's clientele is particularly evident because Planned
Parenthood is located in a metropolitan area that encompasses more
than one state. Also, some of Planned Parenthood's staff are not
from Missouri. Dr. Crist, for example, resides in Overland Park,
Kansas.
In addition to having the power to protect those of Planned
Parenthood's staff and patients who are "in interstate commerce,"
Congress also has the power to protect Planned Parenthood. A
business is in interstate commerce when it "directly engage[s] in
the production, distribution, or acquisition of goods or services
in interstate commerce." United States v. American Building
Maintenance Industries, 422 U.S. 271, 283 (1975). See United
States v. Robertson, 115 S. Ct. 1732 (1995) (per curiam) (an
Alaskan gold mine that hired seven out-of-state employees and
purchased equipment from an out-of-state supplier was engaged in
interstate commerce and subject to regulation under RICO, a statute
enacted under Congress's commerce power). Because Planned
Parenthood has out-of-state staff and patients, it is "in
interstate commerce" and is within Congress's power to protect.
In sum, FACE's protection of Planned Parenthood and its staff
and patients is a valid exercise of Congress's power to protect
people and businesses involved in interstate commerce.
2.
In addition to empowering Congress to protect persons and
things in interstate commerce, the Commerce Clause also gives
Congress the authority to regulate "those activities that
substantially affect interstate commerce." Lopez, 115 S. Ct. at
1630 (citations omitted). Under this power, Congress may regulate
-8-
a class of purely intrastate activity if, in the aggregate, the
activity has a substantial effect on interstate commerce. Ibid.;
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258
(1964); Wickard v. Filburn, 317 U.S. 111, 125 (1942). Furthermore,
"[w]here the class of activities is regulated and that class is
within the reach of federal power, the courts have no power `to
excise, as trivial, individual instances' of the class." Perez,
402 U.S. at 154 (quoting Maryland v. Wirtz, 392 U.S. 183, 193
(1968)).
In determining whether the conduct prohibited by FACE had a
substantial effect on interstate commerce, our scope of review is
limited. We must decide "whether a rational basis existed for
concluding that [the] regulated activity sufficiently affected
interstate commerce." Lopez, 115 S. Ct. at 1629. The House
Judiciary Committee and the Senate Labor and Human Resources
Committee gathered evidence showing that the blockading of clinics
and the use of violence and threats of violence against clinics'
patients and staff depressed interstate commerce in reproductive-
health services. H.R. Rep. No. 306, 103d Cong., 2d Sess. 8-9
(1993), reprinted in 1994 U.S. Code Cong. & Admin. News 699, 705-
06; S. Rep. No. 117, at 31-32. It is settled law that the Commerce
Clause gives Congress the power to regulate activity that
diminishes interstate commerce in a good or service. See, e.g.,
Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964) (Congress may
regulate discrimination in restaurant services because, among other
things, this discrimination reduces the amount of food purchased by
restaurants); Wickard, 317 U.S. at 128-29 (the growing of wheat for
home consumption reduces wheat sales and is, therefore, within the
commerce power). Thus, there is a rational basis for concluding
that the conduct prohibited by FACE substantially affects
interstate commerce.
Mrs. Dinwiddie advances two arguments against this line of
reasoning. Her first argument is drawn from United States v.
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Wilson, 880 F. Supp. 621 (E.D. Wis. 1995), rev'd, No. 95-1871, 1995
WL 765450 (7th Cir. Dec. 29, 1995), which, though it has now been
reversed, is the only opinion holding that FACE is not within
Congress's commerce power. In Wilson, the district court reasoned
that FACE is unconstitutional because "FACE does not regulate
commercial entities, but rather regulates private conduct affecting
commercial entities which in turn receive goods that have traveled
in interstate commerce." Id. at 628. We disagree. As the Seventh
Circuit explained, "[t]here is no authority for the proposition
that Congress's power extends only to the regulation of commercial
entities." Wilson, 1995 WL 765450 at *9. See, e.g., National
Organization for Women, Inc. v. Scheidler, 114 S. Ct. 798, 803-06
(1994) (racketeering activity by a non-commercial enterprise can
have a sufficient effect on interstate commerce so as to be
punishable under RICO, a statute based on the Commerce Clause);
Stirone v. United States, 361 U.S. 212, 215 (1960) (the Hobbs Act,
which provides criminal and civil penalties against anyone who "in
any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or
extortion . . . or [by] commit[ting] or threaten[ing] physical
violence to any person or property . . .," 18 U.S.C. § 1951(a), is
within Congress's commerce power).
Next, Mrs. Dinwiddie asserts that holding FACE to be within
Congress's commerce power would be inconsistent with United States
v. Lopez, the Supreme Court's most recent decision interpreting the
Commerce Clause. In Lopez, the Supreme Court held that the Gun-
Free School Zones Act, which prohibited possession of a firearm in
the vicinity of a school, see 18 U.S.C. § 922(q)(1)(A), was not a
valid exercise of Congress's commerce power. The government had
asserted that the possession of a gun in a school zone leads to
lower national productivity and, thus, less interstate commerce.
The Court rejected this argument, finding that it would require the
Court to "pile inference upon inference" to conclude that the
conduct prohibited by the Gun-Free School Zones Act had a
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substantial effect on interstate commerce. Lopez, 115 S. Ct. at
1634.
For two reasons, we believe that Lopez does not call on us to
hold that FACE is beyond Congress's power to regulate activity that
substantially affects interstate commerce. First, unlike the Gun-
Free School Zones Act, FACE prohibits interference with a
commercial activity -- the provision and receipt of reproductive-
health services. Cf. id. at 1633 (education is not a commercial
activity). FACE does not require us to "pile inference upon
inference" to conclude that the conduct that it proscribes affects
interstate commerce. As the House and Senate committee reports
show, the causal link is quite direct --- when people interfere
with a business, the availability of the service provided by that
business declines. Second, in Lopez, the Supreme Court did not
overturn Katzenbach v. McClung, Wickard v. Filburn, or any other
opinion holding that Congress has the power to regulate conduct
that reduces interstate commerce in a good or service. See Lopez,
115 S. Ct. at 1637 (Kennedy, J., concurring) (Katzenbach, Wickard,
and other post-New Deal cases "are within the fair ambit of the
Court's practical conception of commercial regulation and are not
called into question by our decision today"). Therefore, Lopez
notwithstanding, FACE is a valid exercise of Congress's power to
regulate activity that substantially affects interstate commerce.4
B.
Mrs. Dinwiddie next contends that the Freedom of Access to
Clinic Entrances Act facially violates the Free Speech Clause of
4
Accord, Wilson, 1995 WL 765450 at *7-*13; Cheffer v. Reno, 55
F.3d 1517, 1520-21 (11th Cir. 1995); United States v. Lucero, 895
F. Supp. 1421, 1423-24 (D. Kan. 1995); United States v. White, 893
F. Supp. 1423, 1432-34 (C.D. Cal. 1995). Because we hold that FACE
is within Congress's commerce power, we need not consider the
government's argument that Congress also had the authority to enact
FACE under Section Five of the Fourteenth Amendment.
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the First Amendment. She asserts that FACE imposes an
impermissible content-based restriction on speech, and that it is
both vague and overbroad. We hold that FACE is not content based,
and that it easily satisfies the intermediate-scrutiny test that
applies to content-neutral laws that burden expressive conduct. We
also conclude that FACE is neither vague nor overbroad.
1.
A statute that regulates speech or conduct "based on hostility
-- or favoritism -- towards the underlying message expressed" is
content based. R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992).
Generally, a content-based statute is unconstitutional unless it
survives strict scrutiny, which requires the government to prove
that the statute "`is necessary to serve a compelling state
interest and that it is narrowly drawn to achieve that end.'"
Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir. 1995)
(quoting Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37, 45 (1983)). Mrs. Dinwiddie asserts that FACE is content based
and should be subject to strict scrutiny.
FACE criminalizes three types of activity -- the use of
"force," "threat[s] of force," and "physical obstruction." See 18
U.S.C. § 248(a). Mrs. Dinwiddie does not contest the fact that
both physical obstruction and the use of force are unprotected by
the First Amendment. See Wisconsin v. Mitchell, 113 S. Ct. 2194,
2199 (1993) ("[A] physical assault is not by any stretch of the
imagination expressive conduct protected by the First Amendment.");
Cameron v. Johnson, 390 U.S. 611, 615-17 (1968) (rejecting a First
Amendment challenge to a law that prohibits obstructing access to
a courthouse). Instead, Mrs. Dinwiddie focusses on FACE's
prohibition on using a "threat of force" to "intimidate" a person
because she is obtaining or providing reproductive-health services.
According to the defendant, proscribing threats of force that
"intimidate," which FACE defines as to "place a person in
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reasonable apprehension of bodily harm," 18 U.S.C. § 248(e)(3),
imposes a content-based restriction on speech because it punishes
the speech based on its communicative impact.
Mrs. Dinwiddie is correct that "[l]isteners' reaction to
speech is not a content-neutral basis for regulation." Forsyth
County, Ga. v. Nationalist Movement, 505 U.S. 125, 134 (1992).
See, e.g., Texas v. Johnson, 491 U.S. 397, 412 (1989) (a statute
prohibiting flag desecration was content based because it punished
speech based on the "emotive impact of [the] speech on its audience
. . .." (quoting Boos v. Berry, 485 U.S. 312, 321 (1988)). But
this reasoning does not apply to statutes that outlaw threats of
violence. It is "well settled that threats of violence are . . .
unprotected speech." United States v. J.H.H., 22 F.3d 821, 825
(8th Cir. 1994). See R.A.V., 505 U.S. at 388 ("threats of violence
are outside the First Amendment"); Watts v. United States, 394 U.S.
705, 707 (1969) (per curiam) (holding that a statute that
criminalizes threats to the President is constitutional on its face
and distinguishing "a threat . . . from what is constitutionally
protected speech"). Accordingly, we have upheld the facial
validity of a number of statutes that, using language similar to
FACE's, prohibit threats of violence. See, e.g., J.H.H., 22 F.3d
at 824-26 (upholding 42 U.S.C. § 3631, which prohibits "threats of
force" that "intimidate" a person because of his race and because
he is participating in certain housing programs); United States v.
Lee, 6 F.3d 1297, 1302-04 (8th Cir. 1993) (en banc) (John R.
Gibson, J., concurring) (18 U.S.C. § 241, which prohibits
conspiracies to "injure, oppress, threaten, or intimidate" a person
because he is exercising a federal right, is facially
constitutional and can be applied to conduct that causes a person
"reasonably [to] fear the use of imminent force or violence"),
cert. denied, 114 S. Ct. 1550 (1994); United States v. Bellrichard,
994 F.2d 1318, 1321-25 (8th Cir.) (18 U.S.C. § 876, which prohibits
mailing a letter that contains a "threat to injure" the addressee,
is constitutional), cert. denied, 114 S. Ct. 337 (1993). Thus,
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rather than imposing a content-based restriction on speech, FACE's
proscription of "threats of force" that "place a person in
reasonable apprehension of bodily harm" regulates speech that is
not protected by the First Amendment.5
Next, Mrs. Dinwiddie takes aim at FACE's motive requirement,
which limits the statute's application to those who engage in
proscribed conduct "because [the victim] is or has been, or in
order to intimidate [the victim] from, obtaining or providing
reproductive health services . . .." 18 U.S.C. § 248(a)(1).
According to the defendant, this motive requirement selects for
punishment abortion-related expressive conduct and, therefore,
transforms FACE into a content-based statute. We disagree.
In order for a statute to be facially content based, it must
discriminate in favor of or against the message conveyed by speech
or conduct. FACE's motive requirement does not discriminate
against speech or conduct that expresses an abortion-related
message. FACE would, for example, apply to anyone who blockades a
clinic to prevent a woman from getting an abortion, regardless of
the message expressed by the blockade. Thus, FACE would prohibit
striking employees from obstructing access to a clinic in order to
stop women from getting abortions, even if the workers were
5
Mrs. Dinwiddie also argues that FACE runs afoul of
Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), which holds
that the government may punish the advocacy of illegal conduct only
"where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action."
Id. at 447. See also NAACP v. Claiborne Hardware Co., 458 U.S.
886, 928 (1982) (statements advocating violence were protected by
the First Amendment because they were not "directed to inciting or
producing imminent lawless action" and were not "likely to incite
or produce such action"). According to Mrs. Dinwiddie, FACE is
flawed because it does not require that a threat place the listener
in imminent fear of harm. We disagree. The Brandenburg test
applies to laws that forbid inciting someone to use violence
against a third party. It does not apply to statutes, like FACE,
that prohibit someone from directly threatening another person.
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carrying signs that said, "We are underpaid!" rather than "Abortion
is wrong!" Cf. Police Department of Chicago v. Mosley, 408 U.S. 92
(1972) (invalidating a law that banned picketing within 150 feet of
a school but exempted labor picketing).6
What FACE's motive requirement accomplishes is the perfectly
constitutional task of filtering out conduct that Congress believes
need not be covered by a federal statute. Congress enacted FACE to
prohibit conduct that interferes with the ability of women to
obtain abortions. See H.R. Rep. No. 306, at 12; S. Rep. No. 117,
at 24. FACE's motive requirement targets this conduct while
ensuring that FACE does not federalize a slew of random crimes that
might occur in the vicinity of an abortion clinic. Congress's use
of a motive requirement to single out conduct that "is thought to
inflict greater individual or societal harm," Mitchell, 113 S. Ct.
at 2201, is quite common. For example, Title VII of the 1964 Civil
Rights Act forbids an employer from discriminating against an
employee "because of [the employee's] race, color, religion, sex,
or national origin." 42 U.S.C. § 2000e-2(a)(1). See Mitchell, 113
S. Ct. at 2200-01 (discussing the constitutionality of Title VII's
motive requirement and upholding a statute that enhances sentences
for crimes motivated by racial bias).7
Finally, Mrs. Dinwiddie argues that even if FACE appears to be
content neutral, it is, in fact, content based because the vast
majority of people whose conduct it proscribes are opposed to
6
Indeed, FACE also applies to conduct that interferes with
religious services conducted in a place of worship. See 18 U.S.C.
§ 248(a)(2).
7
Mrs. Dinwiddie contends that motive may be used only as a
sentencing consideration and not as an element in a civil action or
criminal offense. We disagree. If Mrs. Dinwiddie were correct,
Title VII would be unconstitutional. But Title VII is a
constitutional, content-neutral statute. Mitchell, 113 S. Ct. at
2200.
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abortion. But there 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." Madsen v. Women's Health
Center, Inc., 114 S. Ct. 2516, 2524 (1994). See, e.g., United
States v. O'Brien, 391 U.S. 367 (1968) (upholding a law that
prohibited the destruction of draft cards even though most people
who burned their draft cards were opponents of the Vietnam War).
Thus, we reject Mrs. Dinwiddie's argument and hold that FACE is a
content-neutral law.
2.
Although FACE is content neutral and, therefore, need not
survive strict scrutiny, it does "incidentally affect some conduct
with protected expressive elements, such as peaceful but
obstructive picketing." American Life League v. Reno, 47 F.3d 642,
648 (4th Cir.), cert. denied, 116 S. Ct. 55 (1995). When a
content-neutral law burdens expressive conduct, we must subject the
law to intermediate scrutiny. A statute survives intermediate
scrutiny "if it furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest." O'Brien, 391 U.S. at 377.
FACE easily passes this test.
FACE furthers the government's interest in protecting women
who obtain reproductive-health services and ensuring that
reproductive-health services remain available. See H.R. Rep. No.
306, at 6; S. Rep. No. 117, at 14-17. These interests are
significant, see Madsen, 114 S. Ct. at 2526; Pro-Choice Network of
Western New York v. Schenck, 67 F.3d 377, 387 (2d Cir. 1995) (en
banc), and are not related to restricting free speech. Also, FACE
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regulates only uses of force, threats of force, and physical
obstruction. Thus, it "leaves open ample alternative means for
communication," American Life League, 47 F.3d at 652, and is
narrowly tailored to further the government's interests. The
statute forbids physical interference with people going about their
own lawful private business. It is difficult to conceive of any
such statute that could not survive this level of scrutiny.
3.
We now consider Mrs. Dinwiddie's claim that FACE is overbroad
and vague. A statute is unconstitutionally overbroad if "it
reaches a substantial number of impermissible applications." New
York v. Ferber, 458 U.S. 747, 771 (1982). As we have discussed,
FACE prohibits only a limited range of activity. It is not even
close to being overbroad. See Broadrick v. Oklahoma, 413 U.S. 601,
613 (1973) (invalidating a statute on overbreadth grounds is
"strong medicine" that must be applied "sparingly and only as a
last resort").
To "survive a vagueness challenge, a statute must `give the
person of ordinary intelligence a reasonable opportunity to know
what is prohibited' and `provide explicit standards for those who
apply [the statute].'" Video Software Dealers Ass'n v. Webster,
968 F.2d 684, 689 (8th Cir. 1992) (quoting Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972)). Mrs. Dinwiddie asserts that
FACE is impermissibly vague because it uses the following terms:
"interfere with," "physical obstruction," "intimidate," "force or
threat of force," and "injures."
The meaning of these terms is quite clear. In Cameron v.
Johnson, the Supreme Court rejected a vagueness challenge levelled
against a statute that prohibited engaging in "picketing or mass
demonstrations in such a manner as to obstruct or unreasonably
interfere with free ingress to or egress from any public
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premises . . .." 390 U.S. at 612 n.1 (emphasis added). The
meanings of "interfere with" and "physical obstruction" are even
clearer in FACE because, unlike the statute at issue in Cameron,
FACE provides narrow definitions of these terms. See 18 U.S.C.
§ 248(e)(2) and (4). As for "force or threat of force" and
"injures," they are readily understandable terms that are used in
everyday speech. Finally, considering that FACE defines
"intimidate" as "to place a person in reasonable apprehension of
bodily harm," 18 U.S.C. § 248(e)(3), "intimidate" is a clear term
that is similar to an element in the crime and tort of assault.
See, e.g., Mo. Rev. Stat. § 565.070(3) (a person commits the crime
of third-degree assault if "[h]e purposely places another person in
apprehension of immediate physical injury"); Restatement (Second)
of Torts § 21 (1965) (defining the tort of assault as placing a
person in imminent apprehension of "harmful or offensive contact"
with the intention of doing so).
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.8
III.
Having held that FACE is constitutional, we now address Mrs.
Dinwiddie's argument that she did not violate the statute.
Although the District Court found that Mrs. Dinwiddie ran afoul of
FACE in numerous ways, see 885 F. Supp. at 1291-94, it emphasized
Mrs. Dinwiddie's use of "threats of force" to "intimidate" Dr.
8
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).
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Crist, Planned Parenthood's Medical Director. We therefore begin
by discussing the definition of "threats of force."
A.
Although the government may outlaw threats, see ante at 13-14,
the First Amendment does not permit the government to punish speech
merely because the speech is forceful or aggressive. What is
offensive to some is passionate to others. The First Amendment,
therefore, requires a court (or a jury) that is applying FACE's
prohibition on using "threats of force," to differentiate between
"true threat[s]," Watts, 394 U.S. at 708, and protected speech.
The court must analyze an alleged threat "in the light of [its]
entire factual context," Lee, 6 F.3d at 1306 (Lay, J., concurring
in part and dissenting in part), and decide whether the recipient
of the alleged threat could reasonably conclude that it expresses
"a determination or intent to injure presently or in the future."
Martin v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982), cert.
denied, 459 U.S. 1211 (1983).
When determining whether statements have constituted threats
of force, we have considered a number of factors: the reaction of
the recipient of the threat and of other listeners, see J.H.H., 22
F.3d at 827; whether the threat was conditional, see Bellrichard,
994 F.2d 1321; whether the threat was communicated directly to its
victim, see ibid.; whether the maker of the threat had made similar
statements to the victim in the past, see United States v.
Whitfield, 31 F.3d 747, 749 (8th Cir. 1994); and whether the victim
had reason to believe that the maker of the threat had a propensity
to engage in violence. See ibid. This list is not exhaustive, and
the presence or absence of any one of its elements need not be
dispositive. See, e.g., Bellrichard, 994 F.2d at 1322 ("A threat
may be considered a `true threat' even if it is premised on a
contingency.").
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We will now examine Mrs. Dinwiddie's statements to Dr. Crist.
The District Court found that from mid-1994 through early 1995, the
defendant made approximately 50 comments to Dr. Crist, often
through a bullhorn, warning "Robert, remember Dr. Gunn . . .. This
could happen to you . . .. He is not in the world anymore . . ..
Whoever sheds man's blood, by man his blood shall be shed." We
agree with the District Court that these statements were "threats
of force," and that they violated FACE by "intimidating" Dr. Crist
(i.e., placing Dr. Crist in "reasonable apprehension of bodily
harm").
Although Mrs. Dinwiddie did not specifically say to Dr. Crist,
"I am going to injure you," the manner in which Mrs. Dinwiddie made
her statements, the context in which they were made, and Dr.
Crist's reaction to them all support the conclusion that the
statements were "threats of force" that "intimidated" Dr. Crist.9
Mrs. Dinwiddie made these statements not once or twice, but about
50 times. She communicated them directly to Dr. Crist, who reacted
to them by wearing a bullet-proof vest. Finally, Dr. Crist was
aware that Mrs. Dinwiddie, a well-known advocate of the view that
it is justifiable to use lethal force against doctors who perform
abortions, had attacked Lenard Venable, a Maintenance Supervisor at
Planned Parenthood, physically obstructed potential patients who
were trying to enter Planned Parenthood, and, on January 28, 1994,
told Patty Brous, Planned Parenthood's Executive Director, "Patty,
you have not seen violence yet until you see what we do to you."
These facts gave Dr. Crist reason to believe that Mrs. Dinwiddie
had a propensity to use force.10
9
The fact that Mrs. Dinwiddie did not specifically say to Dr.
Crist that she would injure him does not mean that Mrs. Dinwiddie's
comments were not "threats of force." See, e.g., Bellrichard, 994
F.2d at 1319-24 (holding that a number of letters warning their
addressees that God or a third party would kill them were threats).
10
Mrs. Dinwiddie argues that because her comment to Ms. Brous
occurred before May 26, 1994, the date FACE took effect, the
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Our conclusion that Mrs. Dinwiddie's statements were "threats
of force" that "intimidated" Dr. Crist is supported by Watts v.
United States, a case on which Mrs. Dinwiddie heavily relies. At
issue in Watts was the defendant's statement at a rally that "[i]f
they ever make me carry a rifle the first man I want to get in my
sights is L.B.J." Watts, 394 U.S. at 706. The Supreme Court
reversed Watts's conviction for threatening the President because
Watts's statement was expressly conditioned on his induction into
the Armed Forces and because the audience responded to Watts by
laughing. See id. at 707-08. In contrast, Mrs. Dinwiddie's
comments were not expressly conditional. Dr. Crist did not laugh
at the defendant's words; he started wearing a bullet-proof vest.
Finally, whereas Watts did not communicate his comment directly to
President Johnson, Mrs. Dinwiddie used a bullhorn to speak directly
to Dr. Crist. In sum, Mrs. Dinwiddie's words were far more
District Court's reliance on it was erroneous. It is true that
Mrs. Dinwiddie cannot be held liable under FACE for conduct that
occurred prior to May 26, 1994. See Section 6 of Pub. L. No. 103-
259, 108 Stat. 694, 697 (1994) (statutory note accompanying FACE).
But that is not what the District Court did. The Court stated,
correctly, that although Mrs. Dinwiddie's pre-May 26, 1994 conduct
and background events not linked directly to Mrs. Dinwiddie "do not
bear directly on the liability of Dinwiddie under FACE, they are
relevant to the definitions in 18 U.S.C. § 248(e)." 885 F. Supp. at
1291. In other words, although Mrs. Dinwiddie's comment to Ms.
Brous does not violate FACE, it can be used as a factor in
determining whether her post-May 26, 1994, comments to Crist were
"threats of force" that "intimidated" Crist by placing him in
"reasonable apprehension of physical harm."
The same reasoning applies to Mrs. Dinwiddie's advocacy of the
view that it is justifiable to use violence against doctors who
perform abortions. Punishing Mrs. Dinwiddie for expressing this
opinion would violate the First Amendment. See Brandenburg, 395
U.S. at 447. But it was appropriate for the District Court to
consider Crist's "awareness of Dinwiddie's well-publicized advocacy
of lethal force," 885 F. Supp. at 1293, in determining whether Mrs.
Dinwiddie intimidated him with threats of force. See Mitchell, 113
S. Ct. at 2201 (the First Amendment "does not prohibit the
evidentiary use of speech to establish the elements of a crime or
to prove motive or intent").
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threatening than Watts's.11
B.
Having concluded that Mrs. Dinwiddie violated FACE by using
threats of force to intimidate Dr. Crist, we need not dwell on her
numerous other violations of FACE. See 885 F. Supp. at 1291-94.
We will, however, discuss one incident the District Court
highlighted.
On July 28, 1994, Mrs. Dinwiddie physically assaulted Lenard
Venable, a Maintenance Supervisor at Planned Parenthood, with an
electric bullhorn. At oral argument, Mrs. Dinwiddie asserted that
her attack on Venable did not violate FACE because Venable was not
"providing reproductive health services." 18 U.S.C. § 248(a)(1).
Mrs. Dinwiddie maintains that a worker at an abortion clinic who
does not perform abortions or counsel pregnant women does not
"provide" reproductive-health services. We decline to adopt this
narrow interpretation of "provide."
A "term appearing in several places in a statutory text is
generally read the same way each time it appears." Ratzlaf v.
United States, 114 S. Ct. 655, 660 (1994). Thus, in interpreting
the meaning of "providing reproductive health services," we examine
how the word "provide" is used in 18 U.S.C. § 248(a)(3), a section
of FACE that prohibits damaging or destroying a facility because
"such facility provides reproductive health services" (emphasis
added). The phrase "facility [that] provides reproductive health
11
Mrs. Dinwiddie also argues that her statements were less
threatening than those of the defendant in Gooding v. Wilson, 405
U.S. 518 (1972), who said to a police officer, "White son of a
bitch, I'll kill you. You son of a bitch, I'll choke you to
death." Id. at 519-20 n.1. That may be true, but it is also
irrelevant. The Supreme Court reversed Wilson's conviction on
overbreadth grounds; it never reached the question of whether his
words constituted threats.
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services" refers to a type of building. See 18 U.S.C. § 248(e)(1).
Buildings do not perform abortions or counsel pregnant women. The
word "provide" must, then, have a broader meaning than Mrs.
Dinwiddie has suggested.
A building that houses an abortion clinic "provides"
reproductive-health services because it is an integral part of a
business in which abortions are performed and pregnant women are
counselled. The same logic applies to workers at an abortion
clinic -- Dr. Crist could not do his job without either Planned
Parenthood's "facility" or its workers. Therefore, like Planned
Parenthood's "facility," Venable "provides" reproductive-health
services, and Mrs. Dinwiddie's attack on him violated FACE.
IV.
After concluding that Mrs. Dinwiddie violated FACE, the
District Court issued a permanent injunction that orders her not to
violate FACE and "not [to] be physically located within 500 feet of
the entrance of any facility (a `buffer zone') in the United States
that provides reproductive health services as contemplated by
[FACE]" except "for the purpose of engaging in legitimate personal
activity that could not be remotely construed to violate 18 U.S.C.
§ 248." 885 F. Supp. at 1296. This "legitimate personal activity"
exception permits Mrs. Dinwiddie, among other things, to carry a
placard, distribute literature, and speak without an amplifier, so
long as she does not intimidate, interfere with, or physically
obstruct anyone or violate a local noise ordinance. But
"legitimate personal activity" does not include "activity
that . . . is described in part III.A." of the District Court's
opinion or "any use whatsoever of a bullhorn, megaphone, or other
sound or voice amplifying device." Id. at 1296-97. Mrs. Dinwiddie
argues that this injunction is unconstitutional because it is vague
and overinclusive. We agree with her, in part, and remand to the
District Court with instructions to modify the injunction.
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A.
For the sake of argument, we will assume (for now) that the
injunction is content neutral. In order to be constitutional, a
content-neutral injunction that imposes time, place, or manner
restrictions on speech or expressive conduct must "burden no more
speech than necessary to serve a significant government interest,"
Madsen, 114 S. Ct. at 2525. The interest advanced by the District
Court's injunction -- protecting the safety of the staff and
patients of Planned Parenthood and other reproductive-health
facilities -- is "quite sufficient to justify an appropriately
tailored injunction . . .." Id. at 2526. Our task, then, is to
decide whether the injunction "burdens no more speech than
necessary" to achieve this objective.
We begin by examining the injunction's requirement that
whenever Mrs. Dinwiddie is within 500 feet of a reproductive-health
facility, she engage only in "legitimate personal activity that
could not be remotely construed to violate [FACE]." In Brown v.
Polk County, 61 F.3d 650 (8th Cir. 1995) (en banc), we confronted
a similarly worded provision. The administrator of Polk County,
Iowa, ordered that a county employee "immediately cease any
activities that could be considered to be religious proselytizing,
witnessing, or counseling . . .." Id. at 652 (emphasis added). We
held that this mandate violated the employee's rights under the
Free Exercise Clause of the First Amendment because "[i]t would
seem to require no argument that to forbid speech `that could be
considered' religious is not narrowly tailored to the aim of
prohibiting harassment . . .." Id. at 659.
What was true in Brown is even more true in this case. Within
500 feet of a reproductive-health facility, the injunction forbids
Mrs. Dinwiddie from doing anything that could be "remotely
construed" to violate FACE or that is not "legitimate personal
activity," a phrase which the District Court never completely
-24-
defines. Also, to withstand constitutional scrutiny, the District
Court's injunction must burden no more speech than necessary to
further a significant government interest. This standard is
stricter than intermediate scrutiny, the test that we employed in
Brown. See Madsen, 114 S. Ct. at 2525-26. In sum, this portion of
the injunction is inconsistent with the First Amendment.12
The District Court's order that Mrs. Dinwiddie not engage in
"activity that . . . is described in part III.A. of this permanent
injunction" whenever she is within 500 feet of a reproductive-
health facility is also unconstitutional. Part III.A. contains the
District Court's entire description of Mrs. Dinwiddie's conduct.
It mentions not only Mrs. Dinwiddie's violations of FACE, but also
speech that is protected by the First Amendment. For instance, in
Part III.A., the District Court states:
During one program, Dinwiddie was asked [by a television
reporter] whether it is "right to be able to kill a
doctor to save that unborn child" and responded: "I
think that abortion is a violent, violent business and
that violence begets violence. The Scriptures say that
if you live by the sword, you die by the sword."
885 F. Supp. at 1293. In the context of answering the reporter's
question, her remarks were pure speech. Enjoining Mrs. Dinwiddie
from voicing this opinion to a reporter (or from signing a petition
expressing this view), not only "burdens more speech than
necessary," but is also an unconstitutional viewpoint-based
12
This part of the injunction also runs afoul of Fed. R. Civ.
P. 65(d), which requires that "[e]very order granting an
injunction . . . shall be specific in terms [and] shall describe in
reasonable detail . . . the act or acts sought to be
restrained . . .." With its prohibition on activities that can be
"remotely construed" to violate FACE and its lack of a definition
for legitimate personal activity, the injunction violates Rule
65(d) by calling on Mrs. Dinwiddie "to guess at what kind of
conduct" is permissible in the buffer zones. Calvin Klein
Cosmetics v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir.
1987).
-25-
restriction on speech. The First Amendment, therefore, does not
permit the injunction to incorporate Part III.A. of the District
Court's opinion.
B.
Part III.A. does describe a number of activities, such as Mrs.
Dinwiddie's use of threats of force to intimidate Dr. Crist and her
attack on Venable, which it was certainly appropriate for the
District Court to enjoin. The remainder of the injunction helps to
ensure that Mrs. Dinwiddie does not repeat this conduct.
Specifically, the injunction orders Mrs. Dinwiddie not to violate
FACE and, within 500 feet of any reproductive-health facility in
the United States, not to engage in activity that:
(2) constitutes intimidation, physical obstruction,
interference, force, or threats of force; (3) involves
any use whatsoever of a bullhorn, megaphone, or other
sound or voice amplifying device; (4) brings defendant in
violation of any local noise ordinance; or (5) brings
defendant in violation of laws related, but not limited,
to assault, battery, trespass, harassment, vandalism,
disturbing the peace, destruction of property, or
unlawful possession of weapons, when such activity also
has the effect of violating FACE.
885 F. Supp. at 1297.
We believe that an injunction limited to these provisions
would not violate the First Amendment. Like FACE, such an
injunction would be content neutral; it would limit the manner in
which Mrs. Dinwiddie may express herself "without reference to the
content" of the message she conveys. Madsen, 114 S. Ct. at 2523
(quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(internal quotations omitted)). Moreover, the injunction would
burden no more speech than necessary to protect the staff and
patients of Planned Parenthood and other reproductive-health
facilities.
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The types of activity that the injunction would proscribe are
quite narrow. Ordering Mrs. Dinwiddie to stop violating FACE, a
statute that prohibits a limited range of disruptive conduct, would
have a de minimis effect on her ability to express herself. Two of
the injunction's other mandates -- that, within 500 feet of a
reproductive-health facility, Mrs. Dinwiddie not engage in activity
that "constitutes intimidation, physical obstruction, interference,
force, or threats of force," or that violates a number of state
laws "when such activity also has the effect of violating FACE" --
are subsets of the conduct prohibited by FACE. Accordingly, these
provisions would be constitutional, as well.
The injunction's restrictions on using sound- or voice-
amplifying devices and on violating local noise ordinances would
also be consistent with the First Amendment. As the District Court
noted, Mrs. Dinwiddie's "use of threats and intimidation in
violation of FACE have been facilitated by the use of her bullhorn.
Defendant has used her bullhorn not only to threaten and intimidate
persons at Planned Parenthood, but also to assault physically
workers such as Venable." 885 F. Supp. at 1297. These
restrictions would help to ensure that Mrs. Dinwiddie does not
repeat this or similar illegal conduct, while allowing her to carry
signs, distribute literature, and speak at a reasonable volume even
when she is within 500 feet of an abortion clinic.
Moreover, the radius of the 500-foot buffer zones does not
violate the First Amendment. In Madsen, the Supreme Court
invalidated an injunction's requirement that, within 300 feet of an
abortion clinic, protestors refrain from physically approaching any
person seeking services at the clinic. The Court explained that
"[a]bsent evidence that the protestors' speech is independently
proscribable (i.e., `fighting words' or threats), or is so infused
with violence as to be indistinguishable from a threat of physical
harm, this provision cannot stand." 114 S. Ct. at 2529. Here,
Mrs. Dinwiddie's speech was "independently proscribable" -- she
-27-
threatened Dr. Crist. See also id. at 2528 (upholding an
injunction's prohibition on "singing, chanting, whistling,
shouting, yelling, use of bullhorns [or] sound equipment . . .
within earshot of the patients inside [an abortion clinic]" during
certain hours of the day).
Finally, the nationwide scope of the injunction is
constitutional, as well. The government has a significant interest
not only in safeguarding Dr. Crist and Planned Parenthood's
patients, but also in protecting the staff and patients of other
reproductive-health facilities. We agree with the District Court
that a geographically narrow injunction would be insufficient to
advance this interest:
If the permanent injunction encompassed only Planned
Parenthood or the Western District of Missouri, then this
Court would jeopardize the lives and safety of providers
and recipients of reproductive health services who are
protected by FACE. Defendant could easily frustrate the
purpose and spirit of the permanent injunction simply by
stepping over state lines and engaging in similar
activity at another reproductive health facility.
885 F. Supp. at 1296. Furthermore, in light of the narrow range of
conduct prohibited by the injunction (as we have modified it) and
Mrs. Dinwiddie's "consistent, repetitious, and flagrant
unwillingness or inability to comply" with FACE, id. at 1295, a
nationwide injunction would burden no more speech than necessary to
protect the staff and patients of reproductive-health facilities.
See United States v. Carson, 52 F.3d 1173, 1184-85 & n.10 (2d Cir.
1995) (rejecting a First Amendment challenge to an injunction that
prohibits Carson, a former union officer who had engaged in
racketeering, from "participating in any way in the affairs of or
having any dealing, directly or indirectly, with . . . any labor
organization . . ."); Commodity Futures Trading Comm'n v. Hunt, 591
F.2d 1211, 1220 (7th Cir. 1979) ("When the violation has been
founded on systematic wrongdoing, rather than an isolated
-28-
occurrence, a court should be more willing to enjoin future
misconduct.").
We conclude that an injunction limited to the terms discussed
in Part IV.B. of this opinion would adequately protect the staff
and patients of reproductive-health facilities and would be
consistent with the First Amendment.
V.
For these reasons, we affirm the District Court's holding that
the Freedom of Access to Clinic Entrances Act is constitutional and
that Mrs. Dinwiddie violated FACE. We remand this case to the
District Court with instructions to modify the injunction in a
manner consistent with Part IV of this opinion.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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