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.”

In fact, the FBI had investigated Dillard two years previously after she wrote a letter to Scott Roeder, who was imprisoned for the murder of abortion provider Dr. George Tiller. The FBI concluded that Dillard was not “involved in violations of criminal law” and that Dillard “felt that Scott Roeder had made a mistake” by using violence. She made it clear that abortion opponents should only “do within the law whatever we can do to stop abortion,” and the judge cited the fact that Dillard had “publicly deplored [Roeder’s] violent actions."

Although it lost the case, the Justice Department may have partially achieved what it wanted when it filed suit against Dillard. The judge concluded that Dillard’s decision to refrain from vigorous anti-abortion activities after the lawsuit began:

… may be due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice. Almost immediately after the sending [of] the letter, Dillard became the target of investigations by the Wichita police and the F.B.I., followed by the present civil prosecution. Faced with such investigation and litigation, it is utterly unsurprising that Dillard has ceased political activity she might have otherwise undertaken.

The total lack of evidence of any threat or violent action by Dillard was so stark that the Justice Department lawyers tried to bring in an anonymous letter that accused Dillard of having “caches of weapons around her house.” Judge Marten criticized the government for submitting a letter that was “plainly inadmissible” and for introducing “absolutely nothing that would corroborate the allegations.” The government apparently never attempted to obtain a warrant to search Dillard’s home to see if the anonymous claims were even true. Turning up nothing in a search would have interfered with their attempt to use anonymous, Inquisition-type claims.

As Judge Marten concluded, the government’s evidence was “simply inadmissible or based on impermissible speculation.” In fact, the government’s arguments on possible future threats by Dillard were based on “speculation piled on top of speculation.” The claim against Dillard was “fatally flawed because it lacks any proof” of the essential components of proving that Dillard had made any threat of any kind against Means.

Dillard’s attorney Don McKinney rightly characterized the ruling as “a great victory for the First Amendment.” But this lawsuit should never have been filed in the first place. The Civil Rights Division has no business using federal laws to pursue an ideological agenda -- in this case, intimidating the pro-life movement.