Appeals from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 86--J.P. Stadtmueller, Chief Judge.
Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges.
The defendants appeal from their convictions for violating the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. sec. 248, raising a variety of constitutional questions. The Act, which already has survived similar constitutional challenges in three other circuits, United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995), was passed in the wake of continuing violence against, and other forcible interference with, abortion clinics, their staffs, and their clientele by radical elements of the anti-abortion movement. Murder, arson, kidnappings, bombings and bomb threats, assaults, death threats, trespasses, vandalism, gas attacks, military-style assaults, and blockades of entrances to clinics--a concerted nationwide wave of violence, intimidation, and obstruction that had overwhelmed the local authorities in some areas and that local authorities in other areas were unwilling to take action against--impelled the passage of the Act with strong bipartisan support. See, e.g., S. Rep. No. 117, 103d Cong., 1st Sess. (1993). Although as its title implies the Act is concerned primarily with the protection of abortion clinics, the drafters cast the net of liability wider. The Act forbids the use of force or threats of force or physical obstruction deliberately to injure, intimidate, or interfere with people seeking to obtain or to provide any reproductive medical or other health services, not just abortion, and also people seeking to exercise their religious rights in a church or other house of worship. 18 U.S.C. sec. 248(a). Substantial criminal as well as civil penalties are authorized for violations of the Act; but where the violation "involv[es] exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be not more than six months, or both, for the first offense." sec. 248(b). The statutory term "physical obstruction" is defined as "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." sec. 248(e)(4).
Early one morning in 1994, the six defendants in our case (one of whom has abandoned his appeal) blockaded the two entrances to an abortion clinic in Milwaukee. Four of the defendants blocked one entrance with a combination of a disabled automobile, a large drum filled with concrete and steel, and their bodies. The automobile was placed on the sidewalk directly in front of the recessed alcove of the entrance; the drum, two of the defendants, and a child occupied the alcove itself. Two other defendants sat on the ground with their bodies extending upright into the car through holes cut in the car's floor, their bodies being attached to the car by handcuffs, welding, and other means. The doors of the car had been welded shut and the car was leaking gasoline. The remaining two defendants were similarly fastened to a station wagon that was blocking the other entrance to the clinic. It took the fire department several hours to take the cars apart, extricate the defendants from the cars without injuring the defendants, and clear the entrances. The defendants offered no resistance; there was no violence; there were no threats of violence, or even displays of anger, on the part of the defendants or their supporters, who were picketing in the vicinity. (All these things are apparent from the videotapes of the incident, which are a part of the record.) But during much of the period in which the fire department was working to clear the entrances, the members of the clinic's staff could not enter the clinic and patients with appointments to have abortions or other procedures or consultations could not be served.
The defendants, all of whom had been arrested for similar conduct in other states, were convicted after a bench trial (their demand for trial by jury having been refused) of physical obstruction of the staff and clientele of the clinic. As first offenders under the Freedom of Access to Clinic Entrances Act convicted only of nonviolent obstruction, the defendants received prison sentences ranging from 30 days to 6 months and fines ranging from $500 to $3,500.
The defendants argue that the Act exceeds the Constitution's grant of authority to Congress to regulate interstate commerce. We rejected the argument in United States v. Wilson, 73 F.3d 675 (7th Cir. 1995). A number of abortion clinics draw both staff and patients from across state lines (the clinic doctor in this case lives in Illinois, though the clinic is in Wisconsin) and purchase many of their medical and other supplies in interstate commerce, S. Rep. No. 117, supra, at 31; and the anti-abortion movement, through tactics such as those prohibited by the Act, has succeeded in curtailing the number and activities of abortion clinics. So this is a statute that really does seek to remove a significant obstruction, in rather a literal sense, to the free movement of persons and goods across state lines. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). The boycott of a single ophthalmological surgeon was held in Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329-30 (1991), to be within the power of Congress to prevent because of the potential impact on the market for ophthalmological services in Los Angeles. The Court emphasized that the test was not the effect of the particular conduct alleged, but that effect cumulated over all the conduct subject to the statute. Id. at 331-32; see also Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 781 (7th Cir. 1994). The market in reproductive health services is as large nationwide as the Los Angeles market in ophthalmological services; is as much or more an interstate market because of interstate movement of patients, staff, and supplies; and is as likely to be disrupted by the kind of activity in which the defendants in this case engaged as the Los Angeles market in ophthalmological services was likely to be disrupted by the antitrust violations with which the defendant hospital chain was charged.
The fact that the motive for the Freedom of Access to Clinic Entrances Act was not to increase the gross national product by removing a barrier to free trade, but rather to protect personal safety and property rights, is irrelevant. Heart of Atlanta Motel, Inc. v. United States, supra, 379 U.S. at 256-57. Congress can regulate interstate commerce for any lawful motive. See, e.g., Champion v. Ames, 188 U.S. 321, 356-63 (1903) (interstate transportation of lottery tickets); Pic-A-State PA, Inc. v. Reno, 76 F.3d 1294, 1300-03 (3d Cir. 1996) (same); Hoke v. United States, 227 U.S. 308 (1913) (interstate transportation of prostitutes); Brooks v. United States, 267 U.S. 432 (1925) (interstate transportation of stolen cars).
But the defendants also argue that the Act violates the First Amendment. They point out that they blockaded the clinic in order to express their opposition (the sincerity of which is not in question) to abortion, that they did not injure or threaten to injure anybody, and that the First Amendment protects nonverbal as well as verbal expressive activity--protects, for example, the burning of the American flag. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). They do not question the right of government to prevent physical obstruction of access to buildings as well as to prevent violence. They argue rather that the singling out of abortion clinics for protection against violence and obstruction, and the fact that the Act punishes interference, intimidation, obstruction, and so forth only when it is done "because that person [the person interfered with, intimidated, etc.] is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing" an abortion or some other service relating to pregnancy or the reproductive system, 18 U.S.C. sec. 248(a)(1) (emphasis added), show that the Act's real aim and likely effect are to deter the expression of a particular point of view, namely opposition to abortion. The fact that the protected class was broadened during the passage of the bill through Congress to include all medical and health services related to reproduction (not just abortion), plus places of worship, is, in the defendants' view, a transparent and ignoble figleaf. The statute is, they claim, "obviously" aimed at the anti-abortion movement.
It is not at all clear that the statute is "aimed" at the anti-abortion movement. We should not lightly impugn the motives of legislators. Some staunch opponents of abortion, such as Senator Danforth, were eloquent in support of the bill. See 139 Cong. Rec. S15680 (daily ed. Nov. 16, 1993). It is possible to oppose abortion yet also oppose (and consider counterproductive) not only the murder of abortion doctors but also the blockading of entrances to abortion clinics by tactics described by Judge Coffey, dissenting in the factually identical case of United States v. Wilson, supra, as "distasteful or worse." 73 F.3d at 689. With matters of taste we have nothing to do. If taste were a criterion of protected speech, public debate in the United States would be stilled. The Freedom of Access to Clinic Entrances Act is not about bad taste in the marketplace of ideas and opinions. It is about, in Judge Coffey's words, what is "worse" than merely "distasteful"; it is about conduct that, rather than being purely symbolic, like flag-burning, Texas v. Johnson, supra, or wearing a black armband, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), has, like political assassination, cf. Laurence H. Tribe, American Constitutional Law 828 n. 18 (2d ed. 1988), physical consequences that are independent of symbolic significance.
"[S]ome forms of expression," we wrote in a case involving "cross burning used to intimidate," "are harmful and damaging to others and, as such, do not enjoy the protecting cover of speech in the constitutional sense." United States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993). The behavior of the defendants in the present case dramatized their opposition to abortion; it was expressive. But it also made it physically impossible (or at least unreasonably difficult) for staff and patients to enter the clinic. To persuade and to blockade are importantly different forms of action, though both are expressive. One operates just on the mind, the other on the body as well. Burning a flag that one has bought and paid for does not prevent anybody from doing anything; it does not interfere with anyone's personal liberty or property rights. Blockading the entrance to a building not your own does both, just as killing a political opponent invades a right of personal liberty at the same time that it makes a political statement, as in the case of John Wilkes Booth's killing of Abraham Lincoln. The distinction is engraved in the case law interpreting the First Amendment. "[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment. . . . '[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection.'" Wisconsin v. Mitchell, 113 S. Ct. 2194, 2199 (1993), quoting Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984).
The First Amendment forbids the states to outlaw peaceful nontrespassory picketing, which like flag-burning does not deprive the people whom the picketers are quarreling with, or trying to influence, of their personal liberty or property rights. Thornhill v. Alabama, 310 U.S. 88, 98-101 (1940). But the amendment does not extend its protection to the next step, where the picketer physically impedes entry to the picketed premises. E.g., Cameron v. Johnson, 390 U.S. 611, 616-17 (1968); Cox v. Louisiana, 379 U.S. 536, 553-55 (1965). "A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations." Id. at 555. "The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the property of its residents cannot be doubted." Thornhill v. Alabama, supra, 310 U.S. at 105 (emphasis added). "We thus need not tolerate coercive or obstructionist conduct solely because it serves some passionate ideology or interest." Pro-Choice Network v. Schenk, 67 F.3d 377, 395 (2d Cir. 1995) (en banc) (concurring opinion joined by majority of the judges), cert. granted, 116 S. Ct. 1260 (1996). When "specific individuals are targeted at locations difficult or inconvenient for them to avoid, the First Amendment's tolerance of plausibly coercive or obstructionist protest is least." Id. at 398. Here the defendants went beyond protest and invaded property rights.
The difference between communication and obstruction was well expressed by one of the defendants in this case when he told the judge, "What we did, we weren't there to protest abortion. If I wanted to protest abortion, I would write my Senator or my Congressman. We were there to save innocent human life." The Freedom of Access to Clinic Entrances Act does not close the channels of protest to the right to life movement.
If the government distinguishes arbitrarily among classes of expressive conduct, it may be found (we do not say "will," because we do not have to decide the issue) to be interfering impermissibly with the marketplace in ideas and opinions. If, for example, the Freedom of Access to Clinic Entrances Act made it a felony to assault the employee of an abortion clinic but only a misdemeanor to assault the employee of a pregnancy clinic that urges its clientele to carry the fetus to term and put up the baby for adoption rather than to have an abortion, it could be argued that the Act violated the First Amendment. Whether the argument would succeed is uncertain in light of cases such as Wisconsin v. Mitchell, supra, 113 S. Ct. at 2200-01; United States v. O'Brien, 391 U.S. 367 (1968), and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). In the last of these cases, the Court said that "where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory [or otherwise disfavored] idea or philosophy." Id. at 390. The "ordinance struck down in R.A.V. was explicitly directed at expression [namely hate speech] . . . [whereas] the statute in this case is aimed at conduct unprotected by the First Amendment." Wisconsin v. Mitchell, supra, 113 S. Ct. at 2201. Those words could have been spoken of the present case.
If, in our hypothetical case of differential punishment for assaults against employees of abortion clinics versus clinics that promote adoption as an alternative to abortion, the basis for the difference was that there was more violence against employees of abortion clinics than against employees of pregnancy clinics, the difference might be lawful. But this we need not decide. For by broadening, out of an abundance of caution, the protected activity from abortion to reproductive health services, the drafters finessed this particular type of challenge. It is true that the Act is being enforced mainly against opponents of abortion. But this is because it is mainly they who are interfering with the provision of pregnancy-related services, just as it was Vietnam War protesters who burned their draft cards. United States v. O'Brien, supra. Selective prosecution on invidious grounds, see, e.g., Wayte v. United States, 470 U.S. 598 (1985); United States v. ...