Repeal FACE

by Timothy Kirchoff

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Recently, a number of anti-ICE protestors disrupted a worship service at Cities Church in St. Paul because one of the church’s leaders is also a Field Office Director for ICE.

Department of Justice officials are apparently considering charging these protestors under the FACE Act, which was originally introduced in 1993 by then-Representative Chuck Schumer in order to stop the pro-life protests — some of them violent, even deadly — that had been occurring throughout the country over the previous decade. The final version of the bill, in order to establish the pretense that it was not just about abortion, included language granting similar protections to places of worship. Now that the Trump administration is using FACE to prosecute pro-Palestinian protestors and promising not to enforce the FACE Act against pro-life protestors, it seems that this law, like the Senate leadership of Chuck Schumer, has overstayed its welcome.

There is plenty of room to argue that, at the time of its passage, FACE functioned — and succeeded — as a highly public and popular rejection of violent protest tactics that some anti-abortion activists had embraced. Today, however, it is not a content-neutral law that is capable of providing equal measure of protection to inviolable spaces: it is a tool for whoever is in power to pursue vindictive punishment against peaceful protestors whom the people in charge of the Department of Justice happen to dislike — in this case, not only peaceful protestors, but, as demonstrated by the recent (and ridiculous) arrest of journalist Don Lemon, the journalists who accompany them and document their actions.

Some pro-choice commentators have claimed with indignation that FACE is being "hijacked" to apply to disruptions of worship services, ignoring the text of the bill and acting as if the only legitimate use of FACE is in the prosecution of pro-life protestors. This suggests that they see the concessions in the original bill for the protection of places of worship — without which we cannot say with certainty that the bill would have passed — as nothing more than pretense.

I recently wrote about civil disobedience — deliberate, premeditated, and public lawbreaking intended to draw public attention toward a particular injustice — in contrast to the Trump administration’s lawless murder of civilians in Venezuela, invasion of Venezuela’s capital, and abduction of Venezuela’s president, which was designed only to demonstrate American power and advance narrow American interests. Given that the protestors that the administration is currently trying to prosecute acted in the tradition of civil disobedience, it is appropriate to revisit these concepts.

Rather than trying to inspire fear and compliance through force or intimidation, people who participate in civil disobedience and submit to the judgment of the law are making an appeal to their neighbors to re-examine their assumptions in light of their consciences. This is what makes the administration's editing of the 'perp walk' photos of the anti-ICE protest leader to make her appear as if she were weeping at being arrested so egregious. This photo-editing was not a juvenile attempt to mock her or the protest, but an attempt to invalidate it as a deliberate act of civil disobedience. These civil disobedience protestors know that they are committing an illegal act that will almost certainly result in arrest and prosecution (such protestors often even notify local police ahead of time), but they make that sacrifice in the hopes of persuading their fellow citizens to start to change, if not the law, at least their mindset. 

We can also contrast the nobility of the protestors' civil disobedience with the medical professionals who insist that state-level restrictions on abortion are endangering women but then don’t actually perform those supposedly-necessary procedures at the risk of prosecution. This only lends further credence to the claim that it is not the lack of legal abortion that is endangering women’s lives, but the fact that maternity care in these areas is already far below standards of what ought to be acceptable. 

It is worth acknowledging that churches and synagogues, like abortion facilities, have been sites of violence even in recent years, such that a sudden intrusion might be feared by attendees to be worse than a mere disruption. However, laws already exist to deter and prosecute such violence, rendering FACE redundant even when it is not being used as a political tool. If the intrusion is not accompanied by actual violence, then it ought to be an invitation to do what many of us go to church to seek: a challenge to re-examine ourselves and become better people. Moreover, even non-violent disruptions are already illegal under local trespass laws, and if the locations where these protests occur think their current laws against trespass are insufficient, they — the people who actually live in those communities — have the power to push to strengthen those laws in response.

The anti-ICE protestors in Minnesota and the pro-Palestinian protestors in New Jersey sought to draw attention to human rights violations and to challenge the complicity of the congregations they disrupted. Given that I am already sympathetic to both of those causes, I cannot honestly say that their willingness to submit to the judgment of law for their disruption opened my eyes further to the urgency of those issues. I can say, however, that it highlights the importance of repealing the FACE Act, which enables excessive and vindictive punishment by the federal government rather than accountability to the community that was actually disrupted. 

I strongly believe that we should use this moment not just to keep pushing to repeal FACE, but to publicly denounce any prosecutions under FACE. If FACE is being used for selective prosecution of political enemies (and that’s arguably what it was designed to do in the first place), it is not a tool needed by any Department of Justice worthy of the name.