FACE Act Abuse: Justice Dept. Suit Against Pro-Life Advocate Thrown Out

A federal judge in Kansas has just thrown out the latest ideologically driven Justice Department prosecution under the FACE Act, ending a long nightmare for a pro-life activist.

Judge J. Thomas Marten granted Angel Dillard summary judgment, finding that the government produced no evidence of a “true threat” under the law, and that Dillard’s letter to a doctor who planned to open an abortion clinic was “constitutionally protected speech.”

I’ve written previously about the Civil Rights Division’s abuse of its authority under the Free Access to Clinic Entrances Act. The statute was intended to stop physical obstruction, intimidation, or the use or threat of force outside of abortion clinics. But it specifically protects the First Amendment rights of “expressive conduct,” including peaceful demonstrations. Yet the Special Litigation Section of the Justice Department’s Civil Rights Division repeatedly used the FACE Act to intimidate pro-life activists who never posed any threat of violence against abortion clinics.

Last year, a federal court in Florida awarded $120,000 in attorneys’ fees to a woman wrongfully prosecuted by the Section for handing out pro-life literature outside of an abortion clinic. The almost total lack of evidence in that case left the judge wondering outright whether the prosecution was the result of the counselor’s political views. The judge was “at a loss as to why the Government chose to prosecute this particular case in the first place,” because the record was “almost entirely devoid of evidence” that the counselor “acted with the prohibited motive and intent” or had “engaged in any unlawful conduct.”

The Kansas case shows a near-identical lack of evidence regarding motive, intent, and wrongdoing. Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion clinic in Wichita. As the judge pointed out, most of Dillard’s letter “centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic.” But Dillard also wrote that Means would be “checking under” her car every day because she would never know if someone had placed “an explosive under it.”

As Dillard herself said, she was not threatening Means but telling her what would probably be the “state of mind” of Means all the time if she opened the clinic -- she would be constantly worried about her safety. In fact, Means herself admitted that she had heard the very same warnings about her safety if she went through with her plans “from family and friends” (none of whom were prosecuted by Justice).

The Wichita Police Department concluded “there was not a direct threat against” Dr. Means.  The FBI also investigated the letter and Dillard. FBI Agent Sean Fitzgerald did not deny that he had told Dillard that the letter “was no big deal” and that he had recommended against a lawsuit. Indeed, he told the Justice Department that “there was nothing there, it’s not a threat.” Fitzgerald also told Dillard that the FBI in general was “frustrated by the suit … they felt this was undermining the trust and the relationships that they were trying to develop with people who were not extremists but were still pro-life.”