2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-2000

United States v. Gregg

Precedential or Non-Precedential:

Docket 99-5079, 99-5124, 99-5205

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Recommended Citation

"United States v. Gregg" (2000). 2000 Decisions. Paper 189.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/189
Filed September 7, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NOS. 99-5079, 99-5124, 99-5205 

UNITED STATES OF AMERICA, Appellant in No. 99-5079 

v. 

JOSEPH R. GREGG; RUBY C. MCDANIEL; LUIS 

MENCHACA; FRANCIS S. PAGNANELLI; WILLIAM 

CHARLES RAISER; MICHAEL HENRY; ROSE KIDD; 

ARNOLD MATHESON; KATHARINE O'KEEFE; EVA 

ALVARADO; JOSEPH F. O'HARA; JOSEPH ROACH; 

ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT; 

ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY 

BOISSONNEAULT; BALDO DINO; STEPHEN C. ELLIOT; 

SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN; 

GEORGE LYNCH; RAYMOND MICCO; ALEXIS 

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT; 

KIMIKO TROTT 

UNITED STATES OF AMERICA 

v. 

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA; 

FRANCIS S. PAGNANELLI; WILLIAM RAISER; MICHAEL A. 

HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE 

O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H. 

ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES 

SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN 

BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN 

ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS 

GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS 

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT; 

KIMIKO TROTT 
Rose Kidd; James Sweatt; Elizabeth Wagi; 

Raymond Micco; William Raiser; James Soderna; 

Kevin Blake; Baldo Dino; 

Appellants in No. 99-5124 

UNITED STATES OF AMERICA 

v. 

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA; 

FRANCIS PAGNANELLI; WILLIAM RAISER; MICHAEL A. 

HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE 

O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H. 

ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES 

SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN 

BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN 

ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS 

GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS 

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT; 

KIMIKO TROTT 

Francis S. Pagnanelli, Appellant in No. 99-5205 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 97-cv-02020) 

District Judge: Honorable John C. Lifland 

Argued: April 25, 2000 

Before: BECKER, Chief Judge, WEIS and 

OAKES,* Circuit Judges. 

(Filed: September 7, 2000) 

_________________________________________________________________ 

* Honorable James L. Oakes, United States Circuit Judge for the Second 

Circuit, sitting by designation. 

 2 
 FAITH S. HOCHBERG, ESQUIRE 

 United States Attorney 

 COLETTE R. BUCHANAN, ESQUIRE 

 Assistant United States Attorney 

 Federal Building, Suite 700 

 970 Broad Street 

 Newark, NJ 07102-23535 

 BILL LANN LEE, ESQUIRE 

 Acting Assistant Attorney General 

 DAVID K. FLYNN, ESQUIRE 

 JENNIFER LEVIN, ESQUIRE 

 (ARGUED) 

 Department of Justice 

 Civil Rights Division 

 P.O. Box 66078 

 Washington, DC 20035-6078 

 Counsel for Appellants/ 

 Cross-Appellees 

 EDWARD J. GILHOOLY, ESQUIRE 

 (ARGUED) 

 14 Franklin Street 

 Morristown, NJ 07960 

 Counsel for Appellee/ 

 Cross-Appellant Francis S. Pagnanelli 

 MICHAEL C. PELLETIER, ESQUIRE 

 335 Route 24, P.O. Box 700 

 Chester, NJ 07930 

 Counsel for Appellee Eva Alvarado 

 RUSSELL J. PASSAMANO, ESQUIRE 

 65 Madison Avenue 

 Morristown, NJ 07960 

 Counsel for Appellees/ 

 Cross-Appellants William Raiser, 

 Rose Kidd, James Soderna, 

 James Sweatt, Elizabeth Wagi, 

 Baldo Dino, Raymond Micco 

 3 
 DONALD DESMOND CAMPBELL, 

 ESQUIRE 

 186 Sherman Avenue 

 Berkeley Heights, NJ 07922 

 Counsel for Appellee Joseph O'Hara 

 RALPH COTI, ESQUIRE 

 Herriot, Coti & Sugrue 

 36 West 44th Street, Suite 400 

 New York, NY 10036 

 Counsel for Appellee Joseph H. 

 Roach 

 WILLIAM C. CAGNEY, ESQUIRE 

 Lane & Mittendorf 

 99 Wood Avenue South 

 Metro Corporate Campus I 

 Iselin, NJ 08830 

 Counsel for Appellee Byron Adams 

 MICHAEL O. CUMMINGS, ESQUIRE 

 Morgan, Finnegan, Pine, Foley & Lee 

 345 Park Avenue 

 New York, NY 10154 

 Counsel for Appellee Kevin Blake 

 PETER M. BURKE, ESQUIRE 

 Cooper, Rose, & English 

 480 Morris Avenue 

 Summit, NJ 07901 

 Counsel for Appellee George Lynch 

OPINION OF THE COURT 

OAKES, Circuit Judge. 

In this case, the United States appeals the decision of the 

District Court for the District of New Jersey (John C. 

Lifland, Judge) that the defendants are jointly and severally 

liable, rather than individually liable, for statutory damages 

of $5,000 "per violation" of the Freedom of Access to Clinic 

 4 
Entrances Act ("FACE" or "the Act"), 8 U.S.C. S 248 (2000). 

Several defendants filed cross appeals, arguing that FACE 

is a violation of Congress's authority under the U.S. 

Constitution's Commerce Clause and of the First 

Amendment. We conclude that damages under FACE are 

properly awarded jointly and severally among defendants 

and that FACE is constitutional. Accordingly, we affirm the 

district court. 

BACKGROUND 

On April 18, 1997, the United States, through the United 

States Attorney General, filed a complaint for injunctive 

relief and statutory damages against thirty defendants1 

who, the Attorney General alleged, were an ongoing threat 

to the Metropolitan Medical Associates ("MMA"), a 

reproductive health clinic in Englewood, New Jersey, its 

employees and persons seeking reproductive health services 

at MMA. Specifically, the Attorney General alleged that each 

defendant participated in one, two, or three protests that 

obstructed access to MMA in violation of FACE. In the 

prayer for relief in the Complaint, the Attorney General 

elected to pursue statutory damages of $5,000 per 

defendant in lieu of proving actual damages to MMA.

The district court held an evidentiary hearing on July 8- 

10, 1997, on the Attorney General's motion for a 

preliminary injunction. The evidence at the hearing

demonstrated that five of the named defendants blocked 

access to MMA on August 7, 1996, twelve of the named 

defendants blocked access to MMA on January 18, 1997, 

_________________________________________________________________ 

1. The defendants named in the complaint are Joseph R. Gregg, Ruby C. 

McDaniel, Luis Menchaca, Francis S. Pagnanelli, William Charles Raiser, 

Michael Henry, Rose Kidd, Arnold Matheson, Katharine O'Keefe, Eva 

Alvarado, Joseph Roach, Robert Rudnick, James Soderna, James 

Sweatt, Elizabeth Wagi, Byron Adams, Kevin Blake, Amy Boissonneault, 

Baldo Dino, Stephen C. Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis 

Green, George Lynch, Raymond Micco, Alexis Mulrenan, Ralph 

Traphagen, James Trott, and Kimiko Trott. The Attorney General 

dismissed the charges against Mary Foley and her name has been 

removed from the caption. They will be referred to in this opinion 

collectively as "the defendants" unless it is necessary to provide names. 

 5 
and nineteen of the named defendants blocked access to 

MMA on March 15, 1997. Accordingly, on December 22,

1997, the district court enjoined defendants and their 

employees, agents, and others acting in concert with them, 

from blocking and impeding access to MMA, intimidating or 

attempting to intimidate or interfere with persons seeking 

access to MMA, and entering or being on MMA premises. 

After the preliminary injunction was granted, the parties 

informed the district court that they disagreed over the 

proper interpretation of the civil remedies available under 

FACE. At the district court's request, the parties submitted 

briefs addressed to the proper interpretation of statutory 

damages under FACE. On June 18, 1998, after considering 

the parties' pleadings, the district court issued a

memorandum wherein, rejecting the Attorney General's 

argument that statutory damages should be assessed on 

each defendant per violation, it concluded that the $5,000 

statutory damages were to be assessed per violation and 

that all defendants who participated in each violation would 

be held jointly and severally liable for $5,000. 

On December 11, 1998, the district court granted the 

Attorney General's motion for summary judgment and 

issued a Memorandum and Order Entering Final 

Judgment. See United States v. Gregg, 32 F. Supp. 2d 151 

(D.N.J. 1998). The district court found that the defendants 

violated FACE when they conducted the three blockades. 

See id. at 153-58. The district court determined that 

Congress intended statutory damages of $5,000 to be

assessed per violation and against all responsible persons 

severally. See id. at 160-61. Accordingly, the defendants 

were held jointly and severally liable for $5,000 in statutory 

damages for each violation in which they participated. See 

id. at 161 (holding five defendants jointly and severally 

liable for the August 7 blockade, twelve defendants jointly 

and severally liable for the January 18 blockade, and 

eighteen defendants jointly and severally liable for the 

March 15 blockade). 

The Attorney General timely appealed the district court's 

decision and eight of the defendants2 cross appealed. The 

_________________________________________________________________ 

2. Rose Kidd, James Sweatt, Elizabeth Wagi, Raymond Micco, William 

Raiser, James Soderna, and Keven Blake filed a cross appeal on 

 6 
Attorney General appeals that portion of the district court's 

decision that imposed the statutory damages jointly and 

severally. Defendants do not dispute the district court's 

findings that they violated FACE. Rather, Defendants 

contend that the Attorney General does not, under FACE, 

have the authority to elect statutory damages in lieu of 

proof of actual damages. In addition, they argue that FACE 

is an unconstitutional exercise of Congress's commerce 

power and that it violates defendants' rights guaranteed 

under the First Amendment of the Constitution. 

DISCUSSION 

We review the district court's award of summary 

judgment de novo. See Figueroa v. Blackburn, 208 F.3d 

435, 439 (3d Cir. 2000). 

I. 

The task of resolving how statutory penalties are to be 

awarded under FACE is a question of statutory 

interpretation which begins by discerning the plain

meaning of FACE's statutory penalty provision. If 

Congress's intent as to this issue is plain, referral to other 

canons of statutory construction is unnecessary. See 

Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 64 (3d Cir. 

1993); Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of 

Congress is clear, that is the end of the matter[.]"). 

To determine a law's plain meaning, we begin with the 

language of the statute. See United States v. Ron Pair 

Enterprises, Inc., 489 U.S. 235, 241 (1989); New Rock Asset 

Partners v. Preferred Entity Advancements, 101 F.3d 1492, 

1498 (3d Cir. 1996); Santa Fe Medical Services, Inc. v. Segal 

(In Re Segal), 57 F.3d 342, 345 (3d Cir. 1995). If the 

language of the statute expresses Congress's intent with 

sufficient precision, the inquiry ends there and the statute 

_________________________________________________________________ 

February 18, 1999. Francis S. Pagnanelli filed a separate cross appeal on 

February 18, 1999. Their arguments were consolidated in one appellate 

brief. 

 7 
is enforced according to its terms. See Ron Pair Enterprises, 

Inc., 489 U.S. at 241. Where the statutory language does 

not express Congress's intent unequivocally, a court 

traditionally refers to the legislative history and the 

atmosphere in which the statute was enacted in an attempt 

to determine the congressional purpose. See New Rock, 101 

F.3d at 1498. Once the plain meaning of the statute is 

determined, it is conclusive "except in rare cases in which 

the literal application of a statute will produce a result 

demonstrably at odds with the intentions of its drafters." Id. 

(quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 

571 (1982)). 

Section 248(a) of FACE, in relevant part, provides:

 (a) Prohibited Activities. -- Whoever -- 

 (1) 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 

 . . . 

 shall be subject to the . . . civil remedies provided in 

 subsection (c) 

18 U.S.C. S 248(a)(2000). FACE further prohibits the 

intentional damage or destruction of a facility because it 

provides reproductive health services. See id . Any person 

aggrieved by the foregoing actions may bring a civil action 

for relief. See 18 U.S.C. S 248(a)(1)(A) (2000). 

In any action under FACE, a person aggrieved by conduct 

prohibited under the Act, may obtain "temporary, 

preliminary or permanent injunctive relief and 

compensatory and punitive damages." 18 U.S.C. 

S 248(c)(1)(B) (2000). In addition, FACE allows a plaintiff in 

a civil action to elect, "in lieu of actual damages, an award 

of statutory damages in the amount of $5,000 per 

violation." 18 U.S.C. S 248(c)(1)(B) (2000). The Act permits 

the U.S. Attorney General and state attorneys general to 

bring civil actions for the same relief if they believe that a 

 8 
person or group of persons has been aggrieved by violations 

of the Act. See 18 U.S.C. SS 248(c)(2), (3) (2000); H.R. Rep. 

No. 103-306, at 13 (1993), reprinted in 1994 U.S.C.C.A.N. 

699, 710. In civil actions brought by an attorney general, 

 The court, to vindicate the public interest, may also 

 assess a civil penalty against each respondent -- 

 (i) in an amount not exceeding $10,000 for a nonviolent 

 physical obstruction and $15,000 for other first 

 violations; and 

 (ii) in an amount not exceeding $15,000 for a 

 nonviolent physical obstruction and $25,000 for any 

 other subsequent violation. 

18 U.S.C. S 248(c)(2)(B) (2000). 

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. We agree with the district court that the 

"dichotomy of expression" between the civil remedy 

provisions of FACE demonstrates Congress's intent that 

statutory damages be imposed per violation and jointly and 

severally among the defendants who participated in the 

blockade. Gregg, 32 F. Supp.2d at 160; see also Milwaukee 

Women's Medical Services, Inc. v. Brock, 2 F. Supp. 2d 

1172, 1178 (E.D. Wis. 1998) (awarding statutory damages 

per violation rather than per defendant); Greenhut v. Hand, 

996 F. Supp. 372, 379 (D.N.J. 1998) (same); Planned

Parenthood of Southeastern Pennsylvania, Inc. v. Walton, 

1998 WL 88373 at *1-2 (E. D. Penn. Feb. 12, 1998) (same). 

In authorizing compensatory statutory damages of 

$5,000 in lieu of actual damages, Congress uses the phrase 

"per violation." 18 U.S.C. S 248(c)(1)(B). This is in sharp 

contrast to the language used in the provision permitting 

courts to assess substantial civil penalties to vindicate the 

public interest in cases brought by attorneys general. See 

18 U.S.C. S 248(c)(2)(B). In S 248(c)(2)(B), an attorney 

general can request civil penalties of up to $25,000"against 

each respondent." Id. The language ofS 248(c)(2)(B)

 9 
illustrates that Congress knew how to explicitly instruct a 

court to assess damages per defendant rather than per 

violation. The absence of analogous "per respondent" 

language in S 248(c)(1)(B) and the use instead of the phrase 

"per violation" indicates that Congress carefully considered 

the issue and decided that compensatory statutory 

damages will be imposed per violation, a manner that 

differs from the civil penalties imposed to vindicate the 

public interest. 

We disagree with the Attorney General that the use of 

"whoever" in S 248(a) means that compensatory statutory 

penalties are to be imposed individually. Section 248(a) 

defines the substantive liability under FACE. It does not 

address how, under the Act, civil compensatory damages 

are to be awarded. The use of the singular in that provision 

thus does not overcome the specific "per violation" language 

in the relevant remedy provision of the Act. Thus, the 

statutory language indicates that Congress intended that 

compensatory statutory damages, like those imposed in this 

case, are awarded per violation, presumably to be shared 

jointly and severally among the defendants who 

participated in the violation. 

This interpretation is consistent with FACE's legislative 

history and the atmosphere of anti-abortion violence in 

which FACE was enacted. FACE was enacted in 1994 

against a backdrop of escalating violence directed toward 

reproductive health clinics, their employees, and patients. 

Both the House and Senate Reports set forth detailed 

accounts of the virulent national campaign waged by antiabortion activists. See H.R. Rep. No. 103-306, U.S.C.C.A.N., 

at 699. The evidence before Congress demonstrated that 

"this campaign of violence has lead to death, injury, 

harassment, fear, and thousands of arrests all across the 

nation." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703. 

Congress also set forth findings that state and local 

authorities had proved inadequate, and sometimes 

unwilling, to curb the violence. See S. Rep. No. 103-117, at 

17-18 (1993); H.R. Rep. No. 103-306, at 6, 10, 

U.S.C.C.A.N., at 703, 707 ("state and local enforcement 

authorities have failed to address effectively the systematic 

and nationwide assault that is being waged against health 

 10 
care providers and patients."). Consequently, Congress 

enacted FACE with substantial federal remedies to prevent 

the "use of blockades, violence and other forceful or 

threatening tactics against medical facilities and health 

care personnel who provide abortion-related services. . . ." 

S. Rep. No. 103-117, at 2. In sum, FACE serves two 

important goals: First, federal remedies help compensate 

individuals and health care facilities for the harm caused 

by blockades and, second, they serve to deter protesters 

from repeatedly violating the law. 

The Attorney General argues that Congress intended 

statutory damages to be assessed per individual so that 

punishment would be imposed with the result of deterring 

defendants from violating FACE in the future. We agree 

with the Attorney General that deterrence is a primary goal 

of substantial federal penalties against clinic blockaders. 

This goal is well served by the availability of criminal 

sanctions, punitive damages, and civil penalties. See 18 

U.S.C. SS 248(b), (c). Congress explained, however, that the 

statutory penalties described in S 248(c)(1)(B) are available 

"in lieu of actual damages." According to the Senate Report, 

they were included to ease the often difficult task of proving 

actual loss in a case where anti-abortionists' tactics close a 

clinic temporarily or interfere with a person's access to 

reproductive health services. The senate report stated that 

statutory damages were included "[b]ecause of the expense 

and other difficulties of proving actual damages (for 

example, a clinic's lost income)." S. Rep. No. 103-117 at 26. 

Accordingly, the statutory penalties elected by the Attorney 

General in this case were included with the goal of

compensating the victims of the misconduct prohibited by 

FACE. As the district court noted "[o]ne person can just as 

effectively injure, interfere with, or intimidate as can a 

group, depending on the circumstances." Gregg , 32 F. 

Supp.2d at 160. Damages to compensate thus have no 

bearing on how many individuals caused the damage. 

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. 

 11 
Finally, the Attorney General argues that joint and

several liability among defendants encourages individuals 

to engage in large, rather than small, blockades. With joint 

and several liability, the Attorney General contends, the 

total damages award "per violation" remains the same, yet 

the more persons who violate the law, the smaller the 

amount each defendant must pay, thus perversely tending 

to encourage, rather than discourage, defendants to

organize blockades using greater, rather than smaller, 

groups of people. 

We are not convinced that awarding compensatory 

statutory penalties per violation rather than per defendant 

will cause defendants strategically to recruit more

defendants for each violation. Because of the wide variety of 

remedies available under FACE, clinic blockaders will not 

know the penalties that they face for their misconduct and 

be able to plan accordingly. They will not know before the 

suit is filed whether an Attorney General or private plaintiff 

will opt for statutory damages in lieu of actual damages. 

See 18 U.S.C. S 248(c)(1)(B). They will also not know if they 

will be made subjects of a criminal prosecution and face 

criminal fines. See 18 U.S.C. S 248(b). Furthermore, in the 

case where an attorney general brings a civil action, he or 

she has the option of requesting that the court assess a 

civil penalty against each defendant in an amount as great 

as $25,000 in an appropriate case. See 18 U.S.C. 

S 248(c)(2)(B). Moreover, joint and several liability does not 

solely contemplate a group of liable defendants sharing the 

award among them. A liability is joint and several when 

"the creditor may sue one or more of the parties to such 

liability separately, or all of them together, at his [or her] 

option." Black's Law Dictionary 751 (5th ed. 1979). It is 

thus highly unlikely that a defendant or group of 

defendants would plan a clinic blockade or other violation 

of the Act in light of the penalty provisions under the Act. 

Because of the varying ways penalties under the Act may 

be assessed against a group of defendants involved in one 

violation, we are not convinced that the deterrent value of 

FACE is compromised by awarding the compensatory 

statutory damages jointly and severally as the Act plainly 

provides that they should be. 

 12 
In sum, we conclude that Congress intended FACE's 

compensatory statutory damages be awarded per violation 

and jointly and severally among defendants. We base our 

conclusion primarily on Congress's use of "per violation" 

language in S 248(c)(1)(B) as opposed to the"per 

respondent" phrase in S 248(c)(2)(B). Furthermore, because 

Congress made statutory penalties available principally to 

ease the plaintiff 's burden of proving actual damages and 

other penalties to deter the misconduct prohibited by FACE 

are available, the $5,000 statutory damages are awarded 

per violation and jointly and severally among the 

participating defendants. 

II. 

Defendants argue that the Attorney General may not 

elect statutory damages in lieu of actual damages. Their 

argument misapprehends the statute and is belied by the 

Act's legislative history. Under FACE, the Attorney General 

of the United States and a state attorney general may 

commence a civil action against an individual or individuals 

who engage in the conduct prohibited by the Act. See 18 

U.S.C. S 248(c)(2). The Act provides that in an action 

initiated by an attorney general, "the court may award 

appropriate relief, including temporary, preliminary or 

permanent injunctive relief, and compensatory damages to 

persons aggrieved as described in paragraph (1)(B)." 8 

U.S.C. S 248(c)(2)(B) (emphasis added). Defendants contend 

that the phrase "compensatory damages" as used in 

S 248(c)(2)(B) refers only to actual damages and not to 

statutory damages. However, S 248(c)(1)(B) defines 

compensatory damages as actual and statutory damages. 

See 18 U.S.C. S 248(c)(1)(B). Thus, by using the term 

"compensatory damages" in S 248(c)(2)(B), Congress plainly 

meant to incorporate all of the text relevant to 

compensatory damages as set out in S 248(c)(1)(B). 

Therefore, the phrase "compensatory damages" as used in 

S 248(c)(B) authorizes the attorney general to elect an award 

of statutory damages. 

Furthermore, the legislative history demonstrates that 

Congress intended that statutory damages be awarded in a 

civil action initiated by an attorney general. The House 

 13 
confirmed that "[t]he Act authorizes the U.S. Attorney 

General and State Attorneys General to bring civil causes of 

action on behalf of aggrieved persons for the same relief 

available in private actions; however, fees for attorney and 

expert witnesses may not be awarded to the United States." 

H.R. Rep. No. 103-106, at 3, U.S.C.C.A.N., at 700 

(emphasis added). Because the relief available in private 

actions includes statutory damages and Congress intended 

that an attorney general be entitled to the same relief as a 

private party, we reject the defendants' position that the 

Attorney General may not elect statutory damages in this 

case. 

III. 

A. Commerce Clause. 

We now turn to the question whether FACE falls within 

Congress's power under Article I, S 8 of the United States 

Constitution. The Commerce Clause empowers Congress to 

"regulate Commerce . . . among the several states." U.S. 

Const., Art. I, S 8, cl. 3. Whether FACE is a proper exercise 

of Congress's commerce power has been much discussed in 

published opinions of United States Courts of Appeals. 

Indeed, this is one of the last federal appellate tribunals to 

address the issue. After considering most, if not all, of the 

arguments presented by the defendants in this case, these 

courts held that FACE is valid under the Commerce Clause. 

See United States v. Hart, 212 F.3d 1067, 1074 (8th Cir. 

2000); United States v. Weslin, 156 F.3d 292, 296 (2d Cir. 

1998), cert. denied, 525 U.S. 1071 (1999); Hoffman v. Hunt, 

126 F.3d 575, 582-88 (4th Cir. 1997), cert. denied, 523 

U.S. 1136 (1998); United States v. Bird, 124 F.3d 667, 672- 

82 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998); Terry 

v. Reno, 101 F.3d 1412, 1415-18 (D.C. Cir. 1996), cert. 

denied, 520 U.S. 1264 (1997); United States v. Soderna, 82 

F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U.S. 1006 

(1996); United States v. Dinwiddie, 76 F.3d 913, 919-21 

(8th Cir.), cert. denied, 519 U.S. 1043 (1996); United States 

v. Wilson, 73 F.3d 675, 679-88 (7th Cir. 1995), cert. denied, 

519 U.S. 806 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519- 

22 (11th Cir. 1995). Today, this Circuit aligns with the 

decisions of its sister courts of appeals and holds that 

 14 
FACE is a proper exercise of Congress's Commerce Clause 

power. 

In United States v. Lopez, 514 U.S. 549, 558-59 (1995), 

a decision aptly described by this Court as changing the 

Commerce Clause landscape, see United States v. Parker, 

108 F.3d 28, 29 (3d Cir. 1997), the Supreme Court 

identified three broad categories of activity that Congress 

may regulate under its commerce power. Congress may: 1) 

"regulate the use of the channels of interstate commerce," 

Lopez, 514 U.S. at 558 (citations omitted); 2)"regulate and 

protect the instrumentalities of interstate commerce, or 

persons or things in interstate commerce even though the 

threat may come only from intrastate activity," Id. (citations 

omitted); and 3) "regulate those activities having a 

substantial relation to interstate commerce . . . i.e., those 

activities that substantially affect interstate commerce." Id. 

at 558-559 (citations omitted). 

Although the judicial branch is the final arbiter of the 

constitutionality of a statute, courts review a congressional 

determination that it had the power to enact a particular 

piece of legislation with substantial deference. See Parker, 

108 F.3d at 30; United States v. Bishop, 66 F.3d 569, 576- 

77 (3d Cir. 1995). It is not our job to "second-guess the 

legislative judgment of Congress" that blockades and 

violence directed at reproductive health clinics can be 

regulated under the Commerce Clause power but, rather, to 

ensure that Congress had a rational basis for that 

conclusion. Parker, 108 F.3d at 30 (quoting Bishop, 6 F.3d 

at 577). We hold that under Lopez and this Circuit's 

precedent, FACE is a proper exercise of Congress's power to 

regulate intrastate conduct that, in the aggregate, has a 

substantial effect on interstate commerce.3 

In United States v. Morrison, ___ U.S. ___, 120 S. Ct. 

1740, 1749-52 (2000), the Supreme Court's most recent 

communique on Lopez's third category of regulation, the 

Court provided a framework to determine whether a law 

_________________________________________________________________ 

3. Because we determine that FACE is a proper regulation of intrastate 

activity that has a substantial effect on interstate commerce, we do not 

reach the Attorney General's argument that FACE is also a proper 

regulation of instrumentalities in commerce. 

 15 
regulates an activity that has a substantial effect on 

interstate commerce. The Court identified four relevant 

considerations. These are: 1) the economic nature of the 

regulated activity, see id. at 1750; 2) a jurisdictional 

element limiting the reach of the law to a discrete set of 

activities that additionally has an explicit connection with 

or effect on interstate commerce, see id. at 1750-51; 3) 

express congressional findings regarding the effects upon 

interstate commerce of the activity in question, see id. at 

1751; and 4) the link between the regulated activity and 

interstate commerce, see id. at 1751. 

Morrison first asks a court to consider whether the

federal law regulates intrastate economic or commercial 

activity. See id. at 1750. In Morrison , the Supreme Court 

noted, "In every case where we have sustained federal 

regulation under Wickard's aggregation principle, the 

regulated activity was of an apparent commercial 

character." Id. Accordingly, in Morrison, the Supreme Court 

invalidated the civil remedy provision of the Violence 

Against Women Act ("VAWA"), in part, because gendermotivated crimes "are not in any sense of the phrase, 

economic activity." Id. at 1751. In contrast to gendermotivated crime, the activity regulated by FACE-- the 

physical obstruction and destruction of reproductive health 

clinics and the intentional interference and intimidation of 

persons obtaining and providing reproductive health

services -- is activity with an effect that is economic in 

nature. Reproductive health clinics are income-generating 

businesses that employ physicians and other staff to 

provide services and goods to their patients. Motivated by 

anti-abortion sentiment, the primary goal of individuals and 

groups engaged in the misconduct prohibited by FACE is to 

temporarily and permanently interrupt the operations of 

reproductive health facilities and prevent individuals from 

accessing their services. See S. Rep. No. 103-117, at 11; 

H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. 

Congress found that the violent and obstructive acts 

directed at reproductive health facilities had caused 

millions of dollars of damage and forced clinics to close, 

caused serious and harmful delays in the provision of 

medical services and intimidated a number of physicians 

from offering abortion services. See S. Rep. No. 103-117, at 

 16 
14; H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., at 704. The 

effect of the conduct proscribed by FACE is to deter, and in 

some cases to stop completely, the commercial activity of 

providing reproductive health services. We thus hold that 

although the connection to economic or commercial activity 

plays a central role in whether a law is valid under the 

Commerce Clause, we hold that economic activity can be 

understood in broad terms. Pursuant to this principle, 

unlike the activity prohibited by VAWA, the misconduct 

regulated by FACE, although not motivated by commercial 

concerns, has an effect which is, at its essence, economic. 

See Weslin, 156 F.3d at 296 (threats of violence that have 

the effect of deterring commercial activity is properly 

regulated under commerce clause); Hoffman, 126 F.3d at 

587 (activity regulated by FACE, while not itself economic 

or commercial, "is closely and directly connected with an 

economic activity . . . therefore . . . we cannot conclude that 

FACE has nothing to do with commerce or any sort of

economic enterprise"); Dinwiddie, 76 F.3d at 921 ("FACE 

prohibits interference with a commercial activity-- the 

provision and receipt of reproductive health services."); 

Cheffer, 55 F.3d at 1520 ("the Access Act does regulate 

commercial activity, the provision of reproductive health 

services."). 

Morrison next instructs a court to consider the existence 

of a jurisdictional element. 120 S. Ct. at 1750-51."A 

jurisdictional element . . . refers to a provision in a federal 

statute that requires the government to establish specific 

facts justifying the exercise of federal jurisdiction in 

connection with any individual application of the statute." 

United States v. Rodia, 194 F.3d 465, 471 (3d Cir. 1999), 

cert. denied, ___ U.S. ___, 120 S. Ct. 2008 (2000). FACE 

does not contain an explicit jurisdictional element

establishing that the federal cause of action is in pursuance 

of Congress's power to regulate interstate commerce. 

Although such an element would certainly lend support to 

the conclusion that FACE is tied to interstate commerce, we 

conclude that it was not necessary for Congress explicitly to 

limit the civil remedy provision in the case of regulating 

anti-abortion activity directed at reproductive health clinics 

that are, by definition, directly engaged in the business of 

providing reproductive health services. See Bird , 124 F.3d 

 17 
at 675 (reasoning that a jurisdictional element is"not 

always a necessary" method to ensure that Congress does 

not exceed its commerce power). 

Morrison also directs that the existence of congressional 

findings on the burden of the regulated activity on

interstate commerce "may enable [a court] to evaluate the 

legislative judgment that the activity in question 

substantially affects interstate commerce." Morrison, 120 S. 

Ct. at 1752 (quoting Lopez, 514 U.S. at 563). Congress's 

conclusion that the activity proscribed by FACE burdens 

interstate commerce is a conclusion derived from months of 

legislative hearings, research, and debate. The Senate 

Judiciary Committee and the House Committee on Labor 

and Human Resources which considered the legislation 

before it became law submitted extensive reports on the 

necessity of FACE. See Bird, 124 F.3d at 678. Thus,

Congress's conclusion that FACE is constitutional is 

entitled to judicial deference. See Parker, 108 F.3d at 29. 

Finally, in accordance with the fourth factor of Morrison, 

the findings set forth in the House and Senate Committee 

Reports demonstrate that Congress had a rational basis 

upon which to conclude that the activities governed by 

FACE have a substantial effect on interstate commerce. As 

set out in detail below, the findings show that a national 

market for abortion-related services exists in this country 

and that reproductive health clinics are directly engaged in 

interstate commerce. The findings further demonstrate that 

a national movement engaged in the activities proscribed by 

FACE has decreased the availability of abortion-related 

services in the national market and caused women seeking 

services and physicians providing services to travel 

interstate. Accordingly, the activity proscribed by FACE has 

a substantial effect on the interstate commerce of 

reproductive health services. 

The legislative record establishes that a shortage of 

abortion-related services exists in this country that is 

exacerbated by the misconduct proscribed by FACE. See S. 

Rep. No. 103-117, at 17. Only 17 percent of counties in the 

United States have an abortion provider. See H.R. Rep. No. 

103-306, at 8, U.S.C.C.A.N., at 705. This leaves 83 percent 

of counties without a physician willing to perform 

 18 
abortions. See S. Rep. No. 103-117, at 17 & n.29. The 

shortage is most severe in rural counties because 

reproductive health clinics are located primarily in 

metropolitan areas, leaving women residing in rural areas 

without a provider of these services. See H.R. Rep. No. 103- 

306, at 8, U.S.C.C.A.N., at 705. In a rural community, only 

one provider usually exists in a large geographical area, 

thus making it a preferred target for anti-abortionists 

because elimination of that provider eliminates abortion 

services for all women in that area. See H.R. Rep. No. 103- 

306, at 8, U.S.C.C.A.N., at 705. 

The shortage of abortion-related services has resulted in 

a national market for these services because many of the 

patients must engage in interstate commerce by traveling 

from one state to obtain reproductive health services in 

another. Testimony and evidence before Congress showed 

that substantial numbers of women travel interstate to seek 

the services of reproductive health clinics. See S. Rep. No. 

103-117, at 31; H.R. Rep. No. 103-603, at 6, U.S.C.C.A.N., 

at 703. Many patients travel over 100 miles to their 

appointments. See S. Rep. No. 103-117, at 17 & n.29. For 

one example, Ms. Sylvia Doe, who testified before Congress 

that after learning her baby suffered from a permanent 

disability that would cause its early death, traveled from 

Virginia to a clinic in Kansas capable of performing the 

procedure she required. See H.R. Rep. No. 103-306, at 7-8, 

U.S.C.C.A.N, at 704-5. Furthermore, the Senate found that 

44 percent of the patients treated at a clinic in Wichita, KS, 

are from out of state. See S. Rep. No. 103-117, at 31. 

Congress's determination that reproductive health services 

are an interstate market was well supported by the 

testimony presented to the committees. See Bird , 124 F.3d 

at 668-79 (setting forth a summary of testimony). 

In addition, reproductive health clinics employ a national 

market of physicians and staff. Because of the shortage of 

physicians willing to perform abortions in the age of clinic 

violence, doctors employed at reproductive health clinics 

often travel across state lines to provide abortion services. 

See S. Rep. No. 103-117, at 31 & n.46. "Some doctors 

traveled to several states, some for hundreds of miles, to 

perform abortions at clinics which had no physicians of 

 19 
their own." Id. For example, in South Dakota the only 

physician who performs abortions commutes from 

Minnesota and provides abortion services in Minnesota, 

Montana, North Dakota, and parts of Canada. See id. at 

16-17 & n. 29, 31. 

The Senate Committee also concluded that reproductive 

health clinics engage in interstate commerce. The 

Committee reported that 

 Clinics and other abortion service providers clearly are 

 involved in interstate commerce, both directly and 

 indirectly. They purchase medicine, medical supplies, 

 surgical instruments and other necessary medical 

 products, often from other States; they employ staff; 

 they own and lease office space; they generate income. 

 In short, the Committee finds that they operate within 

 the stream of interstate commerce. 

S. Rep. No. 103-117, at 31. Thus, Congress found that a 

national market existed for reproductive health services 

because of the shortage of physicians who provide abortionrelated services, that reproductive health clinics often 

employ physicians from outside the state in which they are 

located, and reproductive health clinics themselves are 

engaged in interstate commerce. 

Finally, Congress determined that the conduct prohibited 

by FACE inhibits and prohibits the delivery of reproductive 

health care services in the national market. Based on the 

testimony and evidence before it, Congress found that the 

clinic blockades, the threats against employees, and the 

other violent and obstructive activities prohibited by FACE 

have the single goal of eliminating the practice of abortion 

by closing abortion clinics. See S. Rep. No. 103-117, at 11; 

H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703. 

Congress also, based on the evidence before it, rationally 

determined that the national movement was succeeding. 

The House Report stated that the "campaign of violence has 

led to death, injury, harassment, fear, and thousands of 

arrests all across the nation. It has resulted, as intended, 

in access to the constitutionally protected right to choose 

being denied to thousands of women nationwide against 

their will." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 

 20 
703. The Senate Report states that clinic blockades and 

violent protests proscribed by the Act have "a significant 

adverse impact not only on abortion patients and providers, 

but also on the delivery of a wide range of health care 

services." S. Rep. No. 103-117, at 14. The effect of the 

violence forced "clinics to close, caused serious and harmful 

delays in the provision of medical services, and increased 

health risks to patients." Id. 

Furthermore, when FACE was enacted, millions of dollars 

of damage had been caused to these facilities by the clinic 

blockades. See H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., 

at 704. The damage caused to reproductive health care 

facilities eliminates on a temporary or permanent basis the 

reproductive health care services that are provided by the 

facilities. See id. at 9, U.S.C.C.A.N., at 706. Thus, the 

activities proscribed by FACE inhibit the operation of 

entities that are directly engaged in interstate commerce. 

Congress explicitly noted the link between the abortionrelated violence and the shortage of physicians willing to 

perform abortions. A number of physicians and health care 

personnel have been intimidated by the threats of violence 

made to them and their families and have stopped 

providing their services, thus contributing to the shortage 

of providers. The House Committee found that rural clinics 

and doctors have become the preferred targets for abortion 

foes because elimination of that single provider effectively 

eliminates service for many women. See id. at 8, 

U.S.C.C.A.N., at 705. The Senate Committee also reported 

that the violence "has . . . taken a severe toll on providers, 

intimidated some into ceasing to offer abortion services, 

and contributed to an already acute shortage of qualified 

abortion providers." S. Rep. No. 103-117, at 14. 

Specifically, "some providers have succumbed to the

intimidation and threats." Id. at 17. At least three 

physicians in Dallas stopped performing abortions in 1992 

as a result of pressure by an anti-abortion group, two 

doctors stopped working in 1993 after receiving death 

threats, and since Dr. Gunn, an abortion-provider in 

Florida, was shot in 1993, at least eight more doctors have 

stopped offering abortion services. See id. at 16-17. The 

House Committee also reported that the shortage of 

 21 
abortion providers is "at least partially attributable to the 

violence and intimidation described in this report. Doctors 

understandably are leaving the field, and new graduate[s] 

have little desire to enter the field even as part of a wider 

obstetrics/gynecology practice." H.R. Rep. No. 103-306, at 

8, U.S.C.C.A.N., at 705. 

Moreover, although under Lopez Congress may regulate 

intrastate activity that in the aggregate has an effect on 

interstate commerce, the anti-abortion movement itself 

whose conduct is regulated by FACE is national in scope. 

Congress found that many of the activities were organized 

and directed across state lines. See S. Rep. No. 103-117, at 

13, 14 & n.26; H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., 

at 706. The House reported that a national strategy has 

emerged, orchestrated by anti-abortion leaders. See H.R. 

Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. Congress 

found that the conduct regulated by FACE was beyond the 

control of local and state authorities. Thus, when it enacted 

FACE, Congress sought to regulate a truly national 

problem. 

In sum, due to the acute shortage of abortion-related 

services in this country and the resulting national market 

for abortion-related services, the conduct proscribed by 

FACE -- the commission of blockades and other acts of 

violence -- has a substantial effect on the availability in 

interstate commerce of reproductive health services. The 

effect of the misconduct is to deter physicians from 

providing further services and temporarily and permanently 

to shut down reproductive health clinics, thus forcing large 

numbers of women to travel across state lines to obtain 

services. We, thus, must agree with the testimony before 

the Senate that, 

 the shift of demand for abortion services from those 

 areas where clinic access is obstructed to those areas 

 where it is not represents the sort of interstate 

 commerce effect that is beyond the effective control of 

 any one state and is accordingly a proper subject for 

 congressional regulation under the Commerce Clause. 

 22 
Bird, 124 F.3d at 681 (quoting Senate Hearings, at 97 

(statement of Professor Tribe)).4 

Our determination that FACE regulates activity that has 

a substantial effect on interstate commerce is supported by 

Supreme Court cases young and old. Recently, in Jones v. 

United States, ___ U.S. ___, 120 S. Ct. 1904, 1909 (2000), 

the Supreme Court considered whether the arson of an 

owner-occupied residence not used for any commercial 

purposes qualified as arson of property used in interstate 

commerce within the meaning of the federal arson statute. 

The Court held that arson of a private dwelling was beyond 

the reach of federal commerce power to criminalize arson. 

See id. at 1911. To determine, however, whether the arson 

of a particular facility is a commerce-affecting act, the 

Court instructed that "[t]he proper inquiry .. . is into the 

function of the building itself, and then a determination of 

whether that function affects interstate commerce." Id. at 

_________________________________________________________________ 

4. We respectfully register our disagreement with the dissent. The 

dissent characterizes the connection between clinic blockades and 

interstate commerce as the same attenuated "but-for-causal chain" 

between gender-motivated crimes and interstate commerce rejected by 

the Court in Morrison. This view narrowly focuses on the activity 

regulated by FACE in the abstract and fails to acknowledge the national 

market for reproductive health services in this country. Congress 

determined that the abortion provider shortage in the United States has 

resulted in a national market for abortion services. In this context, 

abortion-related violence committed to close down a reproductive health 

clinic or deter a woman from accessing its services has a direct effect on 

interstate commerce. Abortion-related violence in the specific context of 

a national market for reproductive services simply cannot be compared 

to gender-motivated crime -- the activity regulated by VAWA. Given the 

national market for abortion services, the nexus between the activity 

regulated by FACE and interstate commerce is direct. 

The dissent also relies on a comparison of anti-abortion violence to 

rape, robbery, and trespass to conclude that anti-abortion violence is a 

local problem properly regulated by the anti-abortion movement. This 

comparison fails to acknowledge the motivation of the anti-abortion 

movement. Although the individual tactics of anti-abortion activists may 

have similar characteristics as common law crimes, the comparison ends 

there. As Congress found, the anti-abortion movement targets 

specifically a branch of commerce that operates in a national market. 

Hence, anti-abortion violence is a national, rather than a local, problem. 

 23 
1910. Here, the facilities blockaded and temporarily or 

permanently closed by the activities of anti-abortion 

protestors are businesses that provide reproductive health 

services and are directly involved in interstate commerce. 

Thus, under the functionality test provided in Jones, the 

blockading and destruction of reproductive health clinics, 

just like the arson of a commercial building, is a commerceaffecting activity and therefore properly regulated by 

Congress. 

In Atlanta Motel v. United States, 379 U.S. 241, 250-58 

(1964), the Supreme Court upheld Title II of the Civil Rights 

Act of 1964 as a proper regulation of an activity that affects 

commerce. The holding was premised on the conclusion 

that discrimination in restaurants results in serving fewer 

customers, therefore adversely affecting interstate

commerce. Here, given Congress's specific findings that 

there exists a national market for reproductive health 

services suffering from a shortage in services, the effect of 

temporarily and permanently shutting down reproductive 

health clinics that are often frequented and staffed by 

people crossing state lines has a direct effect on interstate 

commerce under the reasoning presented in Atlanta Motel. 

In sum, we conclude that the activity regulated by FACE 

is economic in nature. We further determine that due to the 

national nature of reproductive health services and antiabortion protests, the civil penalty provision is within the 

boundaries of Congress's power to regulate interstate 

commerce. Applying the deference that is due Congress's 

findings, see Parker, 108 F.3d at 30-31, we further

conclude that, unlike the statutes reviewed in Lopez and 

Morrison, FACE regulates conduct that Congress had a 

rational basis to conclude has a direct and substantial 

effect on interstate commerce. We hold, therefore, that 

FACE falls within the scope of congressional authority 

under the Commerce Clause as a legitimate regulation of 

activity having a substantial effect on interstate commerce. 

B. First Amendment. 

Finally, we join the decisions of the courts of appeals that 

FACE does not regulate speech and expression protected by 

the First Amendment. See Hart, 212 F.3d at 1071-73;

 24 
United States v. Balint, 201 F.3d 928, 934-36 (7th Cir. 

2000); Weslin, 156 F.3d at 296-98; United States v. Wilson, 

154 F.3d 658, 662-64 (7th Cir. 1998), cert. denied, 525 

U.S. 1081 (1999); Hoffman, 126 F.3d at 588-89; Bird, 124 

F.3d at 683-84; Terry, 101 F.3d at 1418-22; Soderna, 82 

F.3d at 1374-77; Dinwiddie, 76 F.3d at 921-24; Cheffer, 55 

F.3d at 1521-22. These courts have thoroughly addressed 

the arguments presented by Defendants in this case and we 

are in full agreement with their decisions. For this reason, 

we do not expound on our analysis of these claims. 

Defendants first argue that FACE is a view-point based 

restriction on speech and expressive conduct that is 

protected under the First Amendment. FACE is not viewpoint based. The language of the statute and the legislative 

history demonstrates that FACE governs all individuals and 

groups that obstruct the provision of reproductive health 

services and religious worship. The purpose of FACE was to 

protect clinics, their staff, and patients from the harm 

suffered when their right to provide and receive 

reproductive health services was interfered with. The law 

applies equally to all who interfere with the provision of 

these services, regardless of the motivation for the conduct. 

See Weslin, 156 F.3d at 296-97; Dinwiddie, 76 F.3d at 923; 

see also Pro-Choice Network of Western New York v. 

Schenck, 67 F.3d 377, 386 (2d Cir. 1995) (en banc), aff 'd 

in part, 519 U.S. 357 (1996) (holding that because the 

purpose of an injunction enjoining a group of anti-abortion 

protestors was to prevent the harm that prospective

patients would suffer if the anti-abortionists' activities 

continued, the injunction was content neutral). Thus, 

Congress did not pass FACE because of disagreement with 

the message of anti-abortionists. Accord Hill v. Colorado, 

120 S. Ct. 2480 (2000) (holding Colorado law that makes it 

unlawful for any person within 100 feet of a health care 

facility's entrance to knowingly approach within eight feet of 

another person without that person's consent is a contentneutral restriction). Because FACE prohibits conduct 

regardless of the view-point of the actor, FACE does not 

discriminate on the basis of content. 

Furthermore, FACE, which is view-point neutral, governs 

conduct not speech. See Terry, 101 F.3d at 1418-19;

 25 
5. Defendants also argue that because the Attorney General described 

the actions of lawful protesters in its appellate brief, FACE, as applied 

in 

this case, is unconstitutionally vague and overbroad. This argument is 

without merit. 

Hoffman, 126 F.3d at 588; Cheffer, 55 F.3d at 1521. By its 

very terms, FACE regulates "force," "threat[s] of force," or 

"physical obstruction." 18 U.S.C. S 248(a). Activities that 

injure, threaten, or obstruct are not protected by the First 

Amendment, whether or not such conduct communicates a 

message. See Wilson, 154 F.3d at 663; Terry, 101 F.3d at 

1418-19. Although the conduct may have "expressive 

components," this does not exempt it from governmental 

prohibition. Weslin, 156 F.3d at 297. We hold that FACE is 

a valid restriction of conduct that has an expressive 

component under the three-part test in United States v. 

O'Brien, 391 U.S. 367, 376-82 (1968). 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. See 

Weslin, 156 F.3d at 297-98; Terry, 101 F.3d at 1419-20. 

FACE is therefore constitutional under O'Brien . 

Accordingly, we hold that FACE is constitutional under the 

First Amendment.5 

CONCLUSION 

 Therefore, we conclude that compensatory statutory 

damages under FACE are properly awarded per violation 

and jointly and severally among defendants who 

participated in the violation. Furthermore, we join our 

sister circuits and hold that FACE is a constitutional 

exercise of Congress's commerce power and does not violate 

the First Amendment. The District Court is affirmed. 

 26 
WEIS, Circuit Judge, Dissenting. 

Were I to reach the damages issue in this case, I would 

agree with the majority's conclusion that defendants are 

liable on a joint and several basis per incident, and not per 

individual. Obviously, if the government had sought actual 

damages, it would have been restricted to recovering an 

amount proven at trial, and that sum could be recovered 

only once. The fact that Congress provided for statutory 

damages as an alternative to establishing the actual loss 

does not change the nature of the compensation, nor make 

it cumulative. 

However, I differ with the majority in its conclusion that 

FACE survives constitutional scrutiny. I am aware that 

seven Courts of Appeals have upheld the constitutionality 

of the Act. Some of these decisions were made over dissents 

arguing that FACE could not be sustained under the 

analysis in United States v. Lopez, 514 U.S. 549 (1995). 

Although the Courts of Appeals opinions considered Lopez, 

they essentially treated it as a narrow holding that did not 

affect measures such as FACE. 

Doubts that Lopez had application beyond its unique

factual setting, however, were dissipated by the expansive 

holding in United States v. Morrison, 120 S. Ct. 1740 

(2000). There, the Court revisited the question of Congress' 

power under the Commerce Clause to legislate on matters 

traditionally within the province of the States. Setting aside 

portions of the Violence Against Women Act, the Court 

wrote that "[w]e accordingly reject the argument that 

Congress may regulate non-economic, violent criminal 

conduct based solely on that conduct's aggregate effect on 

interstate commerce. The Constitution requires a 

distinction between what is truly national and what is truly 

local." Id. at 1754. Continuing, the Court said, "we can 

think of no better example of the police power, which the 

Founders denied the National Government and reposed in 

the States, than the suppression of violent crime and 

vindication of its victims." Id. 

Together, Lopez and Morrison mandate limits to the 

federalization of local crime under the aegis of the 

Commerce Clause. FACE, like the Gun-Free School Zones 

 27 
Act and the Violence Against Women Act, is an example of 

congressional intrusion into criminal law traditionally 

within the province of the States. These statutes are similar 

in that "neither the actors nor their conduct has a

commercial character, and neither the purposes nor the 

design of the statute[s] has an evident commercial nexus." 

Lopez, 514 U.S. at 580 (Kennedy, J., concurring). 

Considered alone, these statements clearly raise the 

likelihood that FACE is unconstitutional. Upon more

detailed review, it becomes clear that Morrison permits no 

other conclusion. 

As the majority here observes, the Supreme Court has 

identified three categories of activities that Congress may 

regulate under the Commerce power: first, the use of 

channels of interstate commerce; second, the 

instrumentalities of interstate commerce or persons or 

things in interstate commerce, even though the threat may 

come only from intrastate activity; and third, activities that 

substantially affect interstate commerce. Morrison, 120 S. 

Ct. at 1749. No contention has been made that thefirst 

category is involved here, and the Courts of Appeals that 

have considered the constitutionality of FACE have 

generally upheld the Act under the third category. For this 

reason, I will begin with a discussion of that point. 

I. Regulation of Activities 

Having a Substantial Relation To Interstate Commerce 

In determining whether Congress may properly regulate 

an activity under the third Commerce Clause classification, 

Lopez and Morrison present considerations that can be 

distilled into the following four questions: 

 1) Is the activity of an apparent commercial character; 

 2) Does the statute contain an express jurisdictional 

 element that may establish a connection with interstate 

 commerce; 

 3) Are there congressional findings that illuminate a 

 reasonable legislative judgment that the activity 

 28 
 substantially affects interstate commerce, although 

 such an effect is not "visible to the naked eye"; and 

 4) Is there a link between the activity and a substantial 

 effect on interstate commerce that is not so attenuated 

 that the federal-state balance is destroyed?

See Morrison, 120 S. Ct. at 1749-52 & n.4; Lopez, 514 U.S. 

at 559-68. These considerations will be examined in turn. 

A. The Activity is Not Commercial 

FACE is drafted to prohibit specific conduct outside 

reproductive health clinics. It provides in relevant part: 

 (a) Prohibited activities. -- Whoever -- 

 (1) by force or threat of force or by physical 

 obstruction, intentionally injures, intimidates or 

 interferes with or attempts to injure, intimate 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; 

 . . . . 

 (3) intentionally damages or destroys the property of 

 a facility, or attempts to do so, because such facility 

 provides reproductive health services . . . 

 shall be subject to the penalties provided in subsection 

 (b) and the civil remedies provided in subsection (c) 

 . . . . 

18 U.S.C. S 248. 

The services provided by abortion clinics are clearly 

commercial in nature, conducted as they are in exchange 

for money. But these services are not the activities targeted 

by the legislation. FACE prohibits third parties from 

interfering with patients and staff entering abortion clinics, 

as well as from inflicting damage to the property itself. By 

its plain language, the statute is directed against the 

conduct of those external to a clinic's operations.

As the proscribed activity, a protestor's conduct does not 

involve a purchase, sale, or any exchange of value in return 

 29 
for the rendering of a service, and cannot in any sense be 

deemed economic or commercial in character. Although 

blockades may reduce a clinic's revenue, the prohibited 

conduct is fundamentally criminal in nature and does not 

fit easily within the category of commercial activity. 

The fact that criminal conduct may also have financial 

effects does not transform that activity into one commercial 

in nature. Murder and robbery have monetary 

consequences, but that does not transform criminal codes 

into commercial regulation. Morrison made it clear that the 

nature of the activity to be restricted is determined by an 

examination of the conduct itself, and not by such external 

factors as financial effects, which are one step removed 

from the statute's focus. Morrison, 120 S. Ct. at 1750. 

In both Lopez and Morrison, thefinancial effects of the 

prohibited conduct were not disputed. Justice Breyer 

outlined in his Lopez dissent the "obvious" links between 

the economy and gun violence. Lopez, 514 U.S. at 619-22 

(Breyer, J., dissenting). Justice Souter's dissent in Morrison 

cited a Senate report from the legislative history that 

estimated the impact of violent crimes against women to be, 

at minimum, $3 billion annually. Morrison, 120 S. Ct. at 

1762 (Souter, J., dissenting). The Court nonetheless 

concluded in Lopez that the Gun-Free School Zones Act 

was "a criminal statute that by its terms has nothing to do 

with `commerce' or any sort of economic enterprise," Lopez, 

514 U.S. at 561, and said in Morrison that"[g]endermotivated crimes of violence are not, in any sense of the 

phrase, economic activity." Morrison, 120 S. Ct. at 1751. 

It is apparent that the Court examined the prohibited 

conduct without reference to its economic effects. Courts 

reviewing FACE should employ a similarly disciplined 

analysis. 

When considering the limits of congressional power, the 

Court has adopted a "practical conception of commercial 

regulation." Lopez, 514 U.S. at 574 (Kennedy, J., 

concurring); see also Morrison, 120 S. Ct. at 1750 (quoting 

Lopez). But to sustain FACE, courts must reject that 

concept. The statute does not resemble a commercial

regulation, but instead a typical exercise of a state's police 

 30 
power: prohibiting trespass, intimidation, and violence; and 

providing criminal sanctions as well as injunctions. 

The threshold inquiry articulated in Lopez and repeated 

in Morrison is consistent with the Court's prior Commerce 

Clause decisions. As the Court wrote, "thus far in our 

Nation's history our cases have upheld Commerce Clause 

regulation of intrastate activity only where that activity is 

economic in nature." Morrison, 120 S. Ct. at 1751. Two 

cases cited by the Court in that context provide a useful 

contrast to the present dispute. 

In Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 

241, 261-62 (1964), and the parallel case of Katzenbach v. 

McClung, 379 U.S. 294, 305 (1964), the Court upheld

legislation requiring hotels and restaurants to make 

accommodations open to black patrons as well as white. 

The regulated enterprises were clearly within Morrison's 

definition of economic activity. It was the hoteliers and 

restauranteurs themselves, in the operation of their 

business, who had to alter their conduct in order to comply 

with the law. The legislation did not apply to third parties 

whose conduct may or may not have been commercial. 

FACE does not in any way control the operation of a

clinic in its procedures or selection of patients. That 

distinction, as well as the lack of a jurisdictional element, 

separates FACE from the Civil Rights legislation upheld in 

Heart of Atlanta and Katzenbach. 

To cavalierly dismiss the traditional distinctions between 

criminal and commercial conduct is to "downplay the role 

that the economic nature of the regulated activity plays in 

our Commerce Clause analysis." Morrison, 120 S. Ct. at 

1750. Both Lopez and Morrison made the inquiry into

commercial character a key element to their holdings. In 

the present case, the only reasoned answer to the question 

of whether the blockading is commercial in character must 

be in the negative. 

B. The Act Contains No Jurisdictional "Hook" 

A jurisdictional element in a statute serves to define the 

limits of the regulated activity. Including such a 

 31 
requirement assures that the legislation is directed toward 

a defined scope of conduct, one more apt to be within the 

reach of the commerce power granted to Congress. See 

United States v. Bishop, 66 F.3d 569, 594 (3d Cir. 1995) 

(Becker, Ch.J., concurring in part and dissenting in part). 

A statutorily required proof of connection with interstate 

commerce mandates a case-by-case inquiry. 

Stressing the redemptive power of such an element, the 

Court in Lopez discussed United States v. Bass, 404 U.S. 

336 (1971), where it circumspectly read federal gun

legislation to require a nexus with interstate commerce. 

Lopez, 514 U.S. at 562. In Bass, the Court chose to avoid 

a potential constitutional infirmity in this fashion because 

" `unless Congress conveys its purpose clearly, it will not be 

deemed to have significantly changed the federal-state 

balance.' " Id. (quoting Bass, 404 U.S. at 349). Similarly, 

Jones v. United States, 120 S. Ct. 1904, 1908, 1910 (2000), 

carefully interpreted an arson statute so as not to apply to 

all private residences and thus avoided the constitutional 

issues, despite interstate connections in the forms of a 

mortgage, an insurance policy and the use of natural gas. 

But in FACE, there is no such ambiguity. Indeed, it

appears that Congress simply sought to extend a"remedy 

over a wider, and more purely intrastate, body of violent 

crime." Morrison, 120 S. Ct. at 1752. Without a 

jurisdictional clause to provide a case-by-case limitation, 

the Act's reach becomes vulnerable to a Constitutional 

challenge. 

Because FACE lacks the jurisdictional element, the 

government in this case was not required to establish any 

connection with interstate commerce. It was not necessary 

to show that interstate travel was hindered or affected, that 

equipment or furnishings were purchased in interstate 

commerce, or that any of the other jurisdictional indicia 

that have been used in statutes that have passed 

constitutional muster were satisfied. All that the 

government had to show was that a clinic, even if a purely 

local enterprise, was being blockaded. The prosecutor thus 

had almost unlimited discretion to intervene in a purely 

local disturbance. 

 32 
The preservation of the constitutional allocation of power 

between state and federal governments is a serious concern 

for both the legislative and judicial branches. Including a 

jurisdictional requirement in a statute is one way Congress 

can demonstrate that it recognizes this important issue and 

has acted in light of that knowledge. 

The absence of a jurisdictional clause in FACE is a fatal 

flaw, one that is not cured by the congressionalfindings 

that will be discussed next. 

C. The Legislative Findings Are Inadequate 

Unlike Lopez, but like Morrison, FACE's legislative history 

contains congressional findings. As a result of hearings, 

Congress alleged in Committee reports and in floor debates 

that patients and doctors travel interstate for abortions; 

that local authorities were sometimes unable to control 

violence at abortion clinics; and that obstructionist tactics 

had caused losses in the millions of dollars, caused clinics 

to close, and had intimidated physicians as well as

patients. Based on anecdotal evidence, Congress decided 

that federal intervention authorized by the Commerce 

Clause and section 5 of the Fourteenth Amendment was 

appropriate. 

On several occasions, we have said that congressional 

findings are entitled to judicial deference and that it is not 

our role to " `second-guess the legislative judgment of 

Congress.' " United States v. Parker, 108 F.3d 28, 30 (3d 

Cir. 1997) (quoting Bishop, 66 F.3d at 577). Accordingly, all 

that was required of a reviewing court was to ensure that 

Congress had a rational basis for its legislation. Id. 

However correct that approach may be in other settings, 

it can no longer be said that such substantial deference is 

due in cases assessing the limits of congressional power 

under the Commerce Clause. In Morrison, the Court stated 

that "the existence of congressional findings is not 

sufficient, by itself, to sustain the constitutionality of 

Commerce Clause legislation." Morrison, 120 S. Ct. at 1752. 

Whether the effect upon interstate commerce is substantial 

enough to make Congress' exercise of power under the 

 33 
Commerce Clause appropriate "is ultimately a judicial 

rather than a legislative question." Id. 

As the basis for concluding that blockades have a 

substantial effect upon interstate commerce, Congress 

reasoned that obstructions that deter patients from going to 

a clinic caused diminished business for the enterprise. In 

some cases, when clinics closed, women were required to 

travel, perhaps interstate, to obtain the services of another 

establishment. 

This is the very same "but-for causal chain" of logic that 

the Court explicitly rejected in Morrison. Id. at 1752-53. If 

every attenuated effect upon interstate commerce stemming 

from an occurrence of violent crime satisfied the 

substantial effects test, then Congress could "regulate any 

crime as long as the nationwide, aggregated impact of that 

crime has substantial effects on employment, production, 

transit, or consumption." Id. 

The opinions of the Courts of Appeals that have upheld 

FACE all rely heavily on the legislative history for 

concluding that a substantial effect on interstate commerce 

existed. See United States v. Weslin, 156 F.3d 292, 296 (2d 

Cir. 1998); United States v. Bird, 124 F.3d 666, 678 (5th 

Cir. 1997); Terry v. Reno, 101 F.3d 1412, 1415-16 (D.C. 

Cir. 1996); United States v. Dinwiddie, 76 F.3d 913, 920-21 

(8th Cir. 1996); United States v. Wilson, 73 F.3d 675, 681 

(7th Cir. 1995); Cheffer v. Reno, 55 F.3d 1517, 1520-21 

(11th Cir. 1995); American Life League v. Reno , 47 F.3d 

642, 647 (4th Cir. 1994). But these decisions are undercut 

by Morrison. With the asserted justifications 

constitutionally infirm, the legislative history does little to 

demonstrate a reasonable congressional judgment that the 

prohibited activity substantially affects interstate 

commerce. 

D. Any Link is Too Attenuated 

As was said in Lopez, "[i]n a sense any conduct in this 

interdependent world of ours has an ultimate commercial 

origin or consequence, but we have not yet said the

commerce power may reach so far. If Congress attempts 

that extension, then at the least we must inquire whether 

 34 
the exercise of national power seeks to intrude upon an 

area of traditional state concern." Lopez, 514 U.S. at 580 

(Kennedy, J., concurring). Any supposed link between the 

proscribed conduct in FACE and interstate commerce, if 

one exists, would be so attenuated that it could be used to 

also justify a general federal police power. 

Even assuming that some of the surgical instruments, 

medications, furnishings and equipment were in interstate 

commerce at some point, such a connection is so nebulous 

that it provides no useful boundary under the Commerce 

Clause. According to Morrison, allowing such remote factors 

to govern constitutional limitations would allow Congress to 

"completely obliterate the Constitution's distinction between 

national and local authority." Morrison, 120 S. Ct. at 1752. 

Persons seeking to block access to abortion clinics may 

be a national problem, but in that sense, rape, robbery and 

trespass present national concerns as well. Being a mere 

commonality of the several States does not justify federal 

regulation of these matters under the auspices of interstate 

commerce. 

The conduct at issue here -- blocking access to a 

building and verbally intimidating those who attempted to 

enter -- is a quintessentially local problem. Despite that 

obvious and inescapable fact, the federal government chose 

to use its resources where they were neither required nor 

appropriate. 

Because the prohibited activity has no commercial 

character and no jurisdictional element need be proved, the 

statute as drafted impermissibly extends federal jurisdiction 

over conduct that is purely and simply intrastate and has 

no relationship in any substantial manner to interstate 

commerce. Without a jurisdictional prerequisite, FACE 

leaves the federal government free to intrude into a state's 

sovereign duty to maintain order in any abortion clinicrelated disturbance, no matter how trivial. 

Contrary to the congressional findings, here there was no 

abdication of responsibility by state authorities. A state 

court had issued an injunction against obstructing entry to 

the clinic. On each of the three occasions when the conduct 

occurred, the local police intervened, arrested protesters, 

 35 
and filed state criminal charges. All of the blockades were 

controlled by local authorities, including the last one, which 

caused the local police to seek assistance from neighboring 

municipalities. The only reported injuries were the result of 

one demonstrator kicking and head-butting a police officer. 

From the standpoint of local law enforcement personnel, 

the conduct that FACE addresses is not extraordinary, but 

is akin to disturbances following a high school game 

between bitter rivals, where fans demonstrate their loyalty 

in mass unruly gatherings. Celebrations by fans of Super 

Bowl champions frequently require intervention by city 

police to maintain order and protect property (some of it 

undoubtedly in interstate commerce). Near riots at rock 

concerts by performers who have traveled interstate are 

routinely controlled by local police forces. Many of the same 

arguments used to justify FACE could be used to federalize 

criminal conduct of this nature, despite the competence 

state authorities have demonstrated over the years. 1 

It is difficult to understand why the federal government 

invoked FACE when local authorities had the situation well 

in hand. Duplication of state and federal injunctions wastes 

judicial resources and leads to uncertainty and confusion. 

Moreover, overlapping of enforcement authority is 

detrimental to the federal system and the liberties it 

secures. "[C]itizens must have some means of knowing 

which of the two governments to hold accountable for the 

failure to perform a given function. `Federalism serves to 

assign political responsibility, not to obscure it.' " Lopez, 

514 U.S. at 576-77 (Kennedy, J., concurring) (quoting FTC 

v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992)). When 

overlapping occurs, the lines drawn by federalism are 

blurred and the "resultant inability to hold either branch of 

the government answerable to the citizens is more 

dangerous even than devolving too much authority to the 

remote central power." Id. at 577 (Kennedy, J., concurring). 

_________________________________________________________________ 

1. Where state officials are unable to adequately control disturbances 

with their own resources, 42 U.S.C. S 10501 allows officials to petition 

the Attorney General for assistance from the federal law enforcement 

community. 

 36 
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. 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. 

II. Instrumentalities of Interstate Commerce 

The government also argues that FACE may be sustained 

under the second category noted by the Supreme Court-- 

protection of the instrumentalities of interstate commerce 

or persons or things in interstate commerce. The Court of 

Appeals in United States v. Bird, 124 F.3d 667, 674 (5th 

Cir. 1997) concluded that FACE was not sustainable under 

this second category because no evidence was submitted at 

trial to support such a conclusion. The Court in Terry v. 

Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996) simply noted 

that only the third category was relevant to the case before 

it. 

The Court of Appeals in United States v. Dinwiddie, 76 

F.3d 913, 919-20 (8th Cir. 1996), considered this second 

category, observing that the clinic in that case was located 

in a metropolitan area straddling two states. Because of 

this, a number of patients and staff members did not live 

in Missouri where the clinic was located, and therefore, 

traveled interstate to reach it. Id. On that basis, the court 

concluded that the statute protected people and business 

in interstate commerce and so was within Congress' power 

to enact under the second category. Id. 2 

_________________________________________________________________ 

2. It is interesting, but not determinative, that in Dinwiddie, the record 

established the interstate travel of a doctor and some patients. No such 

findings were made in the case before us. In any event, the Dinwiddie 

evidence would not cure the facial deficiency in the text of the Act 

itself. 

As a criminal statute, it must give notice of the nature of the conduct 

proscribed, United States v. Harriss, 347 U.S. 612, 617 (1954), including 

jurisdictional facts that must be proved. The fact that the prosecution 

produces evidence that could satisfy a hypothetical jurisdictional 

element cannot cure the lack of the material element in the statute 

itself. 

 37 
Dinwiddie, however, failed to consider the significance of 

the lack of a jurisdictional hook in FACE, although such 

absence was a factor in Lopez. It is noteworthy that the two 

cases cited by the Dinwiddie court to support its holding 

that the clinic was "in interstate commerce" were based on 

statutes that did contain jurisdictional limitations. E.g., 

United States v. American Bldg. Maint. Indus., 422 U.S. 

271, 275-76 (1975) (Clayton Act); United States v. 

Robertson, 514 U.S. 669, 670 (1995) (RICO). 

I am not persuaded that a purely local commercial 

service that is frequented by nearby but out-of-state 

patrons is within the scope of the Commerce Clause 

without the saving grace of a jurisdictional clause. See 

Morrison, 120 S. Ct. 1752 n.5. 

It is significant that in Lopez, the cases cited in support 

of the commerce power under the second category involved 

such matters as the Safety Appliance Act as applied to 

railroad cars used in intrastate and interstate commerce, 

Southern Ry. Co. v. United States, 222 U.S. 20, 24 (1911), 

and fixing intrastate railroad fees that affect interstate 

rates. Shreveport Rates Cases, 234 U.S. 342, 345 (1914). 

Other examples cited by the Supreme Court include 

destruction of an aircraft or thefts from interstate 

shipments. Perez v. United States, 402 U.S. 146, 150 

(1971). None of these situations approaches the broad 

sweep of FACE, which, it must be said again, lacks any 

jurisdictional limitation to restrict its application to those 

matters demonstrably in interstate commerce. 

III. Fourteenth Amendment 

The government also attempts to sustain the statute as a 

valid exercise of congressional power under the Fourteenth 

Amendment. Morrison provides a short answer to that

contention. The Fourteenth Amendment applies to the

states, and like the Violence Against Women Act, FACE is 

directed at private conduct where there is no indication of 

state action. Morrison, 120 S. Ct. at 1756. FACE, therefore, 

cannot be sustained under the Fourteenth Amendment.

 38 
I conclude that FACE is unconstitutional under both the 

Commerce Clause and the Fourteenth Amendment. The 

judgments in this case should be set aside. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 39