Defending the Free Speech

Rights of

Pro-Life AdvocatesSession I

Copyright © 2012. All rights reserved.

INTRODUCTION:Goal: To prepare

attorneys to defend the free speech rights

of life advocates.

Types of Speech Activities Contemplated:

Picketing Leafleting

Sidewalk Counseling Life Chains 40 Days for Life Vigils

Constitutional Rights

First Amendment – Primarily, freedom of

speech, but also implicating— Freedom of assembly Free exercise of religion Freedom of press

(including leafleting)

Section I: GENERAL

PRINCIPLES AND

COMMON APPLICATIONS

Restrictions on Speech

The Types of Fora:

Non-Public Forum:

Definition: Any property not open to public speech activities.

Non-Public Forum Test: Restrictions are constitutional if they are – 1) reasonable; and 2) viewpoint neutral

Limited Public Forum

Definition: Forum created for a sole, specific purpose, and not generally open for speech

Limited Public Forum Test: Restrictions are constitutional if they are

reasonable in light of the intended use of the forum, and

viewpoint neutral.

Designated Public Forum:

Definition: Property the State has opened for expressive activity by all or part of the public.Designated Public Forum Test: Restrictions must be1) content-neutral, 2) narrowly tailored to serve a

significant governmental interest, and 3) leave open alternative channels of communication

A public college opens up its campus quad to free speech demonstrations but places the following limitations on speakers:

Cannot create a disturbance, Cannot interfere with campus activities, Cannot engage in religious worship or instruction.

NO - Court struck the 3rd restriction because once the college created a forum, it could not limit expression to secular content.

Public Forum:Traditional public forum: A place where the public generally has unconditional access and which has been held in trust for public use and has been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Examples :

Streets Sidewalks * Parks

*Note: If forum is a sidewalk, it does not matter what public entity owns it.

Public Forum:

Public Forum Test: Government may impose reasonable restrictions on the time, place, or manner of protected speech, provided they are

1) content neutral, 2) narrowly tailored to serve a significant

governmental interest, 3) leave open ample alternative

channels of communication.

Public Forum: Content Neutrality

1) The regulation must be justified without reference to content of the speech.

Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff D..., 533 F.3d 780 (9th Cir. 2008).

ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006).

Tip: In the Ninth Circuit, the prohibition on content discrimination is enforced

very stringently, and usually shows up in the context of

exemptions.

Ex: City wants to ban all signs except their list of favored uses. This is a good way to show the content-based nature of a restriction.

Public Forum: Narrowly Tailored

2) The regulation of speech must be narrowly tailored to achieve a significant government interest

•Narrowly tailored: Does the regulation prohibit more speech

than necessary? Restrictions which disregard less restrictive and more precise means are not narrowly tailored

ACLU v. City of Las Vegas, 466 F.3d 784, 797 (9th Cir. 2006)

Project 80's v. Pocatello, 942 F.2d 635 (9th Cir. 1991).

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).

Public Forum: Significant Governmental Interest

2) The regulation of speech must be narrowly tailored to achieve a significant government interest

•Significant government interest: – aesthetics,– public safety, – avoiding voter fraud, – ensuring access to clinics, – orderly flow of traffic,– protecting property rights, etc.

Public Forum: Alternatives3) The regulation of speech must leave open

ample alternative channels of communication

“If an ordinance effectively prevents a speaker from reaching his intended audience, it fails to

leave open ample alternative means of communication.” Edwards v. City of Coeur D'Alene (9th Cir. 2001).

Private Property:

There is no right to trespass on private property, not open to

the public, to deliver message.

But…California Law may treat privately owned property, open to the public, as a public forum.

Permit Requirements

When might I need a Permit?

Sole use of the sidewalk Event in a park Group of more than 50 people are

participating at once Use of sound amplification devices

Evaluating permitting schemes(1) No overly broad licensing discretion to

a government official.

(2) Time, place, and manner restrictions must be content neutral.

(3) Narrowly tailored to serve significant governmental interest, and

(4) Leave open ample alternatives for communication. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)

Grounds for Denial

Must set forth the grounds for denying the permit narrowly and specifically--Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)

Must have evidence to support denial--Desert Outdoor Advertising v. City of Moreno Valley, (9th Cir. 1996).

No unfettered discretion to set cost--Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)

Permissible Discretion

Note that giving discretion to an official may be allowed, if it is limited by specifically articulated purposes, such as- • coordinating multiple uses, • preventing unlawful uses, and• protecting public safety.

Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010 (9th Cir. 2008).

Specific Pro-Life Activities and

Potential Problems

Pro-life ActivitiesLeafleting

Picketing

ChalkingSidewalk Counseling

Life Chains and Vigils

Potential Problems

Be aware of potentially applicable ordinances, such as –– sign ordinances, – permit requirements, – noise restrictions,– obstruction laws, – bubble zones.

Look for the common constitutional pitfalls of each type of law.

Sign ordinances

laws limiting size, type,

and number of signs

mostly apply to commercial or election signs

cannot discriminate on basis of content

Obstruction and Loitering Laws

CAUTION: Be aware of obstruction and anti-loitering laws whenever engaged in activities on public property. Cities have a significant interest in maintaining free flow of traffic (pedestrian or motor). Look out for ordinances that give sole discretion to police to decide what constitutes a violation. Harassment and threats of arrest are common

Noise Restrictions

laws limiting the level

of noise in certain

areas and regulating

the use of sound

amplification devices

California State Laws

Obstructing passage to health care facility – California Penal Code § 602.11 (a)

Trespass – California Penal Code § 602

Interference with business activity – CPC §602.1

FACE – California Penal Code § 423.2

Vandalism – California Penal Code § 594

Local Ordinances

San Marcos Anti-loitering/Trespass

Glendora Mobile Billboard Advertising Prohibition

Laguna Beach Sidewalk Obstruction Law

How to find the law

• Google search for “city” municipal code or “state” criminal code

• www.law.cornell.edu/states

•Categories under which applicable ordinances may fall: “public peace,” “miscellaneous,” “public welfare,” “crimes against property,” “access to clinic,” “reproductive health care facility,” “streets,” “sidewalks,” “signs”

Bubble Zone Laws or “Mother

May I” Laws

Bubble Laws

What is a Bubble Law - State statutes and local ordinances that prohibit speech activities within so many feet of abortion clinics.

First arose in Colorado; now exist in Massachusetts, Oakland, San Francisco, Chicago, Pittsburg, and other cities.

The general rule applied to all speech restrictions should be applied to bubble/buffer zones. Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990). However, bubble zones around abortion clinics are consistently upheld against constitutional challenge, as in Hill v. Colorado, 530 U.S. 703 (2000).

Bubble Laws

Compare Edwards v. City of Santa Barbara, 150 F.3d 1213 (9th Cir. 1998) and Hill v. Colorado, 530 U.S. 703 (2000).

- Brown v. City of Pittsburgh, 586 F.3d 263, 279 (3rd Cir. 2009).

- McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009) (cert. denied McCullen v. Coakley, 130 S.Ct. 1881, 2010 U.S. LEXIS 2664 (U.S., Mar. 22, 2010)).

The evolution of the Floating Bubble Zone

The Oakland Bubble Law ~ The Hoye Cases

In 2008, Rev. Hoye was arrested for allegedly violating the Oakland bubble law In 2009, Rev. Hoye was convicted and jailed for his peaceful actions

On appeal, his conviction was unanimously overturned for a variety of prejudicial errors that occurred during the trial. People v. Hoye, App. Div. No. 4961 (Super. Ct. No. 541279) (Alameda County, August 25, 2010)

The Hoye Criminal Case:

The Hoye Civil Case:

Hoye filed a federal lawsuit challenging the constitutionality of the Oakland bubble ordinance

The Court ruled that the law contained a viewpoint discriminatory provision

In January 2008, Hoye filed suit again raising several new grounds, most notably the fact that the City exempted clinic escorts from the reach of the law

The court upheld the law, Hoye appealed to the Ninth Circuit

The Hoye Civil Case:

Last July, the Ninth Circuit reversed.

The two most significant holdings were:

1) The City’s enforcement policy was unconstitutionally content-based

2) The escorts’ conduct of blocking Rev. Hoye from communicating his message from 8 feet away could be considered a special problem rendering the Ordinance unconstitutional as applied to Hoye.

Defending the Free Speech

Rights of

Pro-Life Advocates