CISPES (Committee in Solidarity with People of El Salvador) v. F.B.I., 84-3507

• Decision Date: 09 September 1985
• Docket Number: No. 84-3507,84-3507
• Citation: 770 F.2d 468
• Parties: CISPES (COMMITTEE IN SOLIDARITY WITH the PEOPLE of EL SALVADOR), et al., Plaintiffs-Appellants, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 468

770 F.2d 468

54 USLW 2156

CISPES (COMMITTEE IN SOLIDARITY WITH the PEOPLE of EL SALVADOR), et al., Plaintiffs-Appellants, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants-Appellees.

No. 84-3507.

United States Court of Appeals, Fifth Circuit.

Sept. 9, 1985.

Andrew Weltchek, Brooklyn, N.Y., William P. Quigley, New Orleans, La., plaintiffs-appellants.

Gilbert R. Buras, Asst. City Atty., William F. Baity, Asst. U.S. Atty., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN and POLITZ, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

In this appeal, we are asked to invalidate a United States statute as placing an unconstitutional burden on First Amendment freedoms. We hold that the statute, designed to protect foreign dignitaries and officials, is neither vague nor overbroad, and that it is a facially permissible means of protecting an important governmental interest. We further hold that, in view of our construction of the statute, and the government's repeated assertions that it will not be applied to prevent any constitutionally protected activity by the appellants, we need not remand the case for a determination of whether it has been or might in the future be unconstitutionally applied to appellants. We thus affirm the district court's dismissal of all claims of appellants.

Background

This litigation arises out of the protesting activities of the members of the Committee in Solidarity with the People of El Salvador (CISPES). ¹ On July 22, 1982, members of CISPES went to the Honduran Consulate in New Orleans, Louisiana, in order to protest alleged activities of the Honduran government in El Salvador. Two days earlier, appellee Sgt. Joseph Orticke of the New Orleans Police Department had received an anonymous phone call informing him that CISPES members might attempt to seize the Honduran Consulate. Accordingly, he informed the Federal Bureau of Investigation. On July 22, FBI Agents Walton and Hayes were dispatched to the Consulate, along with Sgt. Orticke.

When the CISPES members arrived in the building housing the Consulate on July 22, they asked to speak to the Consul. The Consul agreed to speak to them, at which time one of the CISPES members read a prepared statement. Thereafter, several CISPES members peppered the Consul with questions regarding actions of the Honduran government. At the same time, another CISPES member began taking pictures of the entire Consulate and everyone inside. All of this activity took place inside the Consulate itself. After the Consul agreed to deliver CISPES' statements to his government, the CISPES members left the Consulate and began picketing activities in front of the main entrance to the building housing the Consulate. Shortly thereafter, Agent Hayes of the FBI approached the group and told them that they were violating 18 U.S.C. Sec. 112 ² by virtue of their activities. Although the CISPES members initially complied with the agent's request and moved their protest across the street, they soon returned, and were again informed of the applicability of the statute to their activities. After asking several questions regarding the meaning of the statute, the protesters disbanded. None of the protesters, however, was arrested.

Plaintiffs filed a complaint on September 29, 1982, seeking a temporary restraining order and permanent injunction against the enforcement of 18 U.S.C. Sec. 112(b), a declaratory judgment as to its constitutionality, as well as damages, costs, and attorney's fees. After a hearing on October 1, 1982, at which all parties were present, the plaintiffs' TRO request was denied, the court citing a lack of evidence to support the conclusion that the statute would be unconstitutionally applied to plaintiffs in the future.

On January 13, 1984, the parties filed, pursuant to court request, cross-motions for summary judgment under F.R.Civ.P. 56. Plaintiffs requested a judgment that Secs. (b)(1), (b)(2) and (b)(3) of the statute be declared unconstitutional on their face. The defendants' motions requested summary judgment in their favor, and dismissal of the action. On June 29, 1984, the district court entered its opinion. Therein, after considering the terms of the statute, the court determined that it was not unconstitutional, and denied plaintiffs' summary judgment motion. The court also granted summary judgment in favor of the defendants, and dismissed all plaintiffs' claims against all defendants.

On appeal, plaintiffs raise several challenges. They continue their challenge to the facial validity of the statute. They also assert that even assuming the district court correctly determined the statute's facial validity, it erred in dismissing plaintiffs' other claims, since the question still remained as to the constitutionality of the statute as applied.

The Statute

The statute, in its present formulation, is a legislative effort to implement various international obligations of the United States government. ³ Originally enacted in 1948, the law was substantially amended in 1972 and 1976. The legislative history of the 1976 amendments ⁴ makes explicit reference to two conventions signed by the United States. ⁵ These conventions are intended to protect foreign officials and diplomats from various terroristic acts, including murder, kidnapping and assault, and threats or attempts to commit such acts. See 1976 U.S.Code Cong. & Ad.News at 4480, 4482. Pursuant to these conventions, and in recognition of the special problems regarding the safety and protection of foreign officials, Congress enacted the provisions which we today review.

Vagueness and Overbreadth

We consider first the appellants' challenge to subsections (b)(1) and (b)(2) of the statute, which make it a crime to coerce, threaten, intimidate, harass, or obstruct or attempt to do the same to certain protected foreign officials. Appellants assert that these provisions are facially unconstitutional, emphasizing the twin infirmities of vagueness and overbreadth. These concepts are, of course, logically related and similar. See, e.g. Kolender v. Lawson, 461 U.S. 352, 359, n. 8, 103 S.Ct. 1855, 1859, n. 8, 75 L.Ed.2d 903 (1983). Indeed, some commentators have considered them indistinguishable. See, e.g., Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 110-13 (1960). Nevertheless, the Supreme Court has suggested that in cases involving a facial challenge to the overbreadth and vagueness of a statute, a court should first consider whether the statute is overbroad, and, assuming it is not, then whether it is unconstitutionally vague. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). See also Tobacco Accessories v. Treen, 681 F.2d 378, 381 (5th Cir.1982). We adopt this approach here.

Overbreadth

The vice of an overbroad statute in the First Amendment context is that "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Thus, the concern with an overbroad statute stems not so much from its application to completed conduct, but rather from the possibility that the threat of its application may deter others from engaging in otherwise protected expression. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

However, just as an overbroad statute sweeps within its ambit protected as well as unprotected conduct, invalidation of a statute on overbreadth grounds risks total judicial abrogation of an otherwise valid and rational legislative scheme. As the Supreme Court has recognized, a statute need not fall in toto merely because it is capable of some unconstitutional applications. Broadrick v. Oklahoma, 413 U.S 601, 614, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973).

The Supreme Court in Broadrick recognized the danger of unbridled use of the overbreadth doctrine, and warned that its application is "strong medicine," to be employed "sparingly and only as a last resort." Id. at 613, 93 S.Ct. at 2916. As a result, in order to invalidate a statute on overbreadth grounds, the overbreadth "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918. Thus, a statute should not be invalidated for overbreadth unless it reaches a substantial number of permissible activities. New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982).

An important corollary of the "substantial overbreadth" test is that a federal court, faced with the challenged overbreadth of a federal statute, must construe the statute to avoid constitutional infirmities, if such a construction is possible. See, e.g., New York v. Ferber, 458 U.S. at 769, note 24, 102 S.Ct. at 3361, n. 24. We believe such a construction is justified here, and that it operates to preserve the statute from overbreadth invalidation.

The major objection to the statute raised by appellants is that, in attempting to protect foreign officials, the statute also prohibits such constitutionally protected activities as picketing and demonstrating. These activities are, of course, protected forms of expression. As the Supreme Court stated in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), "There is no doubt that as a general matter peaceful picketing and leafletting are expressive activities involving speech protected by the First Amendment." Id. at 176, 103 S.Ct. at 1707, citing Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). We are unconvinced, however, that the statute here was intended to, or will in the future, be read as...