Jingrong v. Chinese Anti-Cult World Alliance Inc.

• Decision Date: 14 October 2021
• Docket Number: August Term 2019,Docket No. 18-2626
• Citation: 16 F.4th 47
• Parties: Zhang JINGRONG, Zhou Yanhua, Zhang Peng, Zhang Cuiping, Wei Min, Lo Kitsuen, Cao Lijun, Hu Yang, Guo Xiaofang, Gao Jinying, Cui Lina, Xu Ting, Bian Hexiang, Plaintiffs–Counter-Defendants–Appellees, v. CHINESE ANTI-CULT WORLD ALLIANCE INC., Michael Chu, Li Hauhong, Wan Hongjuan, Zhu Zirou, Defendants–Counter-Plaintiffs–Appellants, Does 1-5, inclusive, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

16 F.4th 47

Zhang JINGRONG, Zhou Yanhua, Zhang Peng, Zhang Cuiping, Wei Min, Lo Kitsuen, Cao Lijun, Hu Yang, Guo Xiaofang, Gao Jinying, Cui Lina, Xu Ting, Bian Hexiang, Plaintiffs–Counter-Defendants–Appellees,

v. CHINESE ANTI-CULT WORLD ALLIANCE INC., Michael Chu, Li Hauhong, Wan Hongjuan, Zhu Zirou, Defendants–Counter-Plaintiffs–Appellants,Does 1-5, inclusive, Defendants.^*

Docket No. 18-2626

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: October 3, 2019

Decided: October 14, 2021

Tom M. Fini, Catafago Fini LLP, New York, NY (Edmond W. Wong, Law Office of Edmond W. Wong, PLLC, Flushing, NY, on the brief), for Defendants–Counter-Plaintiffs–Appellants.

Terri E. Marsh, Human Rights Law Foundation, Washington, D.C., James A. Sonne, Stanford Law School Religious Liberty Clinic, Stanford, CA (Joshua S. Moskovitz, Bernstein Clarke & Moskovitz PLLC, New York, NY, on the brief), for Plaintiffs–Counter-Defendants–Appellees.

Sirine Shebaya, Juvaria Khan, Muslim Advocates, Washington, D.C., for Amicus Curiae Muslim Advocates.

Before: Walker, Leval, and Carney, Circuit Judges.

Judge Walker concurs in the court's opinion, and files a separate concurring opinion.

Carney, Circuit Judge:

This appeal presents the question of whether five tables on the sidewalk in Flushing, Queens, New York—where Plaintiffs–Counter-Defendants–Appellees ("Plaintiffs") passed out flyers and displayed posters primarily protesting the Chinese Communist Party's treatment of Falun Gong—constitute "a place of religious worship" under the Freedom of Access to Clinics Entrances Act ("FACEA"), 18 U.S.C. § 248.

Plaintiffs are adherents of Falun Gong, a modern spiritual practice originating in China. They allege that Defendants–Counter-Plaintiffs–Appellants ("Defendants") harassed, intimidated, and interfered with them when they engaged in activities at the tables. Based on these incidents, Plaintiffs brought a claim under FACEA, 18 U.S.C. § 248(a)(2), which makes it unlawful to intentionally injure, intimidate, or interfere with or to attempt to injure, intimidate, or interfere with a person exercising her religion at "a place of religious worship." They allege that the sidewalk tables are a "place of religious worship."

We hold that "a place of religious worship" is anywhere that religious adherents collectively recognize or religious leadership designates as a space primarily to gather for or hold religious worship activities. We hold further that the tables do not qualify under this definition: at summary judgment, the undisputed record showed that Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party's alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities. Accordingly, the § 248(a)(2) claim fails.

Defendants argue separately that the claim cannot be sustained because Congress lacked the authority under the Commerce Clause to enact § 248(a)(2). Because we resolve the appeal on statutory grounds, we do not reach this constitutional issue.

We therefore reverse the district court's grant of partial summary judgment to Plaintiffs and its corresponding denial of summary judgment to Defendants, and remand for further proceedings consistent with this Opinion.

BACKGROUND

I. Statutory Background

FACEA dually protects individuals’ access to "reproductive health services" and the free exercise of religion "at a place of religious worship." 18 U.S.C. § 248(a)(1)-(3). Section 248(a)(2) of that statute, at issue here, imposes civil and criminal penalties on any person who:

by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.

Id. § 248(a)(2). A person is authorized to sue under § 248(a)(2) only if she was "lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship or by the entity that owns or operates such place of religious worship." Id. § 248(c)(1)(A). FACEA does not define "a place of religious worship."

II. Factual Background

On this interlocutory appeal from orders on cross-motions for summary judgment, we draw the following undisputed facts from the parties’ Local Rule 56.1 statements and the documents, deposition testimony, and evidentiary hearing testimony comprising the summary judgment record. The district court held a three-day evidentiary hearing to supplement the summary judgment record, during which several of the parties’ experts and witnesses provided additional testimony. To the extent any issues discussed in the factual narrative are in dispute, we note them below.

A. Falun Gong

Plaintiffs are practitioners of Falun Gong, a spiritual practice founded in China in 1992 by Li Hongzhi.¹ App'x at 204 (Pls.’ Rule 56.1 Statement), 572 (Defs.’ Response to Pls.’ Rule 56.1 Statement).² The basic principle of Falun Gong is that followers strive to "return" to their "True Sel[ves]" or "Primary Soul[s]" through regular spiritual practice known as "cultivation." App'x at 247, 577, 582 (quoting Falun Gong teachings). Cultivation entails meditation, physical exercises like qigong, and the study and application of Li's teachings, which are collected in a book of his lectures entitled "Zhuan Falun." Although Falun Gong lacks "temples, churches, or religious rituals," followers gather at conferences, parades, parks, and spiritual centers. App'x at 621 (quoting Li's statements on Falun Gong practice). Adherents also commonly practice Falun Gong in their homes.

Falun Gong is subject to controversy. Defendants are the Chinese Anti-Cult World Alliance Inc. ("CACWA"), its leaders, and affiliated individuals, who oppose Falun Gong. In their view, Falun Gong is "cult-like" and espouses troubling views. See , e.g. , App'x at 585 (Defs.’ Response to Pls.’ Rule 56.1 Statement). Defendants object, for instance, to Falun Gong teachings that followers should not take medication for illness, that aliens have visited earth, and that the heavens are divided into racial zones and a person of a mixed racial background will "go to the heaven that belongs to the race of his Main Spirit." App'x at 633. Plaintiffs do not dispute that these are Falun Gong teachings. See App'x at 609.

Plaintiffs allege that in China, the government harshly persecutes members of Falun Gong. According to U.S. government reports, the Chinese government deems Falun Gong a "cult[ ]," and has brutally tortured, detained, and imprisoned followers. App'x at 608 (quoting annual reports of the Congressional-Executive Commission on China); see also App'x at 606 (quoting State Department's Human Rights Report on China). One Plaintiff recounted that, because he practiced Falun Gong in China, he was "abused and beaten in custody" and "was forced to watch as his mother was beaten in the face" by Chinese authorities. App'x at 593. Plaintiffs also allege that the Chinese government exerts influence against Falun Gong practitioners overseas by encouraging its state-owned enterprises to provide financial support to organizations like CACWA. See App'x at 1246-48.

In response to this treatment, Li Hongzhi has urged followers to raise awareness—as Falun Gong practitioners describe it, "to tell the truth"—about the Chinese Communist Party's persecution of practitioners and its malignment of the movement.³ See , e.g. , App'x at 777 (Plaintiff Cui Lina describing the work of practitioners "to tell the truth of how the Chinese communist party persecute[s] the Falun Gong practitioner"); App'x at 247 ("Supplementary Teachings of Falun Gong" providing that practitioners should do "truth-clarifying work" regarding persecution by the Chinese government).

B. The Flushing Sidewalk Tables

Located in the Flushing neighborhood of Queens, New York, are two "centers" where Falun Gong practitioners gather. One is the large Taiwan Cultural Center and the other, the much "small[er]" spiritual center (the "Spiritual Center") based in the suite of a building located on Main Street. App'x at 1743, 1747, 1751. The parties do not dispute that the Taiwan Cultural Center is the site of "regular[ ]" worship and study among practitioners. App'x at 1747; see App'x at 1751 (Plaintiffs’ witness, a Falun Gong practitioner, explaining that "[w]e make true wishes and pray at Taiwan Center"). Plaintiffs state that practitioners gather at the Spiritual Center "to meditate, exercise, and study in groups." App'x at 1820; see also App'x at 1746 (same witness explaining that "[w]e also practice at Spiritual Center.").

During the relevant period of the lawsuit, from 2011 to 2015, Spiritual Center leadership arranged five tables to be set up daily in the same locations and at the same times along the sidewalk in downtown Flushing. The tables displayed a variety of posters and images and were staffed by volunteers who handed out flyers. The volunteers also walked up and down the street near the tables to distribute flyers. Most, but not all, of the volunteers were Falun Gong practitioners. See App'x at 1740 (describing the volunteers as "mainly" Falun Gong practitioners).

Plaintiffs’ witness Yu Yuebin, the director of the Spiritual Center, testified at the evidentiary hearing on the purpose and activities of the tables.⁴ In Yu's view, the tables were "part of our spiritual center." App'x at 1738. He explained that the materials displayed at the tables were geared toward raising awareness about the Chinese Communist Party's treatment of Falun Gong:

Q. What materials are displayed at the tables?

A. We mainly put three kind[s] of materials. First kind, we tell people what is Falun Gong, to

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