Defending the Free Speech

Rights of

Pro-Life AdvocatesSession II

Copyright © 2012. All rights reserved.

SECTION II: SPECIAL

SITUATIONS AND PROBLEMS

Residential PicketingPublic Forum Test AppliesGovernment has legitimate

interest in protecting a residence from unwanted intrusion.

Main issue: whether the ordinance is narrowly tailored.

Frisby v. Schultz, 487 U.S. 474 (1988): involved a ban on residential picketing “before or about any individual’s residence.”

Residential PicketingLower Courts vary in the distances they deem

“narrowly tailored” involved in “no picketing” ordinances

California cases tend to maximize restrictions on residential picketing.

Klein v. San Diego County, 463 F.3d 1029, 1036 (9th Cir. 2006)

City of San Jose v. Superior Court, 32 Cal. App. 4th 330 (1995)

Residential PicketingOther courts have been more accepting of the right to residential picketing

Thorburn v. Austin, 231 F.3d 1114 (8th Cir.2000)

Kirkeby v. Furness, 92 F.3d 655 (8th Cir.1996)

An attempt to ban all residential picketing except labor picketing violates the equal protection clause as well as the First Amendment’s content neutrality requirement Carey v. Brown, 447 U.S. 455 (1980)

Residential Picketing

Note: this discussion only touches on residential picketing laws.

Injunctions restricting residential picketing also pose a threat.

Free Speech Rights Under the California Constitution

California Constitution

California Constitution provides protections for speakers in some ways broader than U.S. Constitution.

Under the California Constitution, the “public forum” analysis is whether the communicative activity is basically incompatible with the normal activity of a particular place at a particular time.

Time, Place and Manner” restrictions are tested the same under California law as under Federal law.

California Caselaw: - Pruneyard Shopping

Ctr. v. Robins, 447 U.S. 74 (1980).

- Planned Parenthood v. Wilson, 234 Cal. App. 3d 1662 (1991).

- Snatchko v. Westfield LLC, 2010 Cal. App. LEXIS 1415 (August 2010).

California Constitution

Freedom of Access to Clinic Entrances Act(s)

Federal Freedom of Access to Clinic Entrances Act (FACE),

18 USC § 248

FACE Bans- Intentional injury, intimidation, interference, or attempts to injure by force, threat of force, or physical

obstruction persons who are, or have been “reproductive health

service” providers, or persons who wish to obtain “reproductive health

services”

FACE – Civil Remedies

Any person aggrieved can sue for relief available including- injunctive relief, compensatory and punitive damages (or statutory damages of $5,000 per violation), as well as costs and fees.

Authorizes civil suit by U.S. Attorney General seeking relief as indicated above, as well as a civil penalty (at discretion of the court) of $10,000 - $15,000*, and $15,000- $25,000* for subsequent violations.

Specifically states that FACE is not to be construed as to impinge expressive conduct, including picketing.

First conviction:

• Jail – 6 months - 1 year jail and/or• Fine – $10,000 - $15,000

Second or subsequent conviction:• Jail – 18 months - 3 years jail and/or• Fine – $25,000

If bodily injury results, not more than 10 yrs jail; If death results, any term of years or life in jail.

FACE – Criminal Penalties

California Freedom of Access to Clinic Entrances Act (FACE) California Penal Code § 423.2

CA FACE Bans -1) Intentional injury, intimidation or interference by

force, threat of force, physical obstruction, or nonviolent physical obstruction to any person* Because the person is a reproductive health

services client, provider, or assistant 2) Attempts to intimidate a person from becoming or

remaining a reproductive health services client, provider, or assistant

3) Intentional property damage*

CA FACE – Penalties & Remedies

First Conviction: • Jail – 6 months - 1 year and/or• Fine – $2,000 - $25,000

Second or Subsequent Convictions: • Jail – 6 months - 1 year and/or• Fine – $5,000 - $50,000

Civil remedies are also available and may be brought by the Attorney General or a city attorney. The statutory damages available under a civil action range from $1,000 to $25,000.

Information Collection and Statistic Publication

CA attorney general must collect information on incidents of anti-reproductive rights crimes and annually publish the findings on its website.

Between 2003-2009, a grand total of 65 incidents of anti-reproductive rights offenses were reported.

Note this includes all crimes reported by or at abortion clinics, of whatever nature, and whether or not the suspects were ever identified, charged, or convicted.

Injunctions

Injunctions Plaintiff (abortion provider) brings lawsuit

against Defendant (pro-life demonstrator)

Clinic alleges one or more tort claims

Clinic seeks an injunction against pro-life demonstrator

In the context of pro-life activity, injunctions are often used to restrict constitutionally protected speech, not to prevent any unlawful conduct

Madsen v. Women's Health Ctr., 512 U.S. 753 (1994) enunciated the test for injunctive restrictions on speech: each restriction must be –

1)evaluated individually and 2)may burden no more speech than necessary

to serve the asserted governmental interests.

What does this test mean?

What governmental interest is involved?

Injunctions

Litigation Tips

Think Fast: Abortion providers usually initiate these proceedings with minimal notice to the pro-lifers, frequently by filing an ex parte motion for a temporary restraining order.

No TRO without Notice: The Supreme Court has explicitly forbidden the issuance of TRO’s restricting speech without notice to the enjoined parties (Carroll v. President & Comm'Rs of Princess Anne, 393 U.S. 175 (1968)), and most state court rules discourage TRO’s without notice to opposing parties.

One Bite at the Apple: The issuance or denial of preliminary injunctive relief in abortion protest cases often is determinative of the outcome of the entire lawsuit.

When opposing an application for a temporary restraining order or preliminary injunction –1) Start with the traditional grounds to attack the

requested relief as a whole: no irreparable injury injunctions are supposed to preserve the status quo; the requested injunction will alter the status quo no continuing threat or threat of future harm (where clinic brings suit based on one-time or infrequent occurrence)

2) Use the Madsen test and analyze each provision of the injunction, focusing on the lack of proof that the restriction is necessary to serve the asserted interests.

Litigation Tips

Is a special motion to strike pursuant to California Code of Civil Procedure §425.16 appropriate?

But be mindful of the threat of attorney fees being awarded against the defendant as well.

You might consider offering to stipulate upfront to an injunction prohibiting any unlawful conduct included in the clinic’s prayer for relief (e.g., trespass, assault)*

Litigation Tips

Injunctions

•An injunction cannot be applied against non-parties by insertion of “actual notice” language. Planned Parenthood Golden Gate v. Garibaldi, 107 Cal. App. 4th 345 (2003).

•Some actual relationship with an enjoined party is required to bring a nonparty actor within the injunction’s scope. People v. Conrad, 55 Cal. App. 4th 896 (1997).

Injunctions

•Fed. Rules Civ. Proc. 65 (2) Persons Bound: The order [of injunction] binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;(B) the parties' officers, agents,

servants, employees, and attorneys; and(C) other persons who are in active

concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

Injunctions

Potential Constitutional Claims other than

Free Speech Claims

Equal Protection

If the regulation is not content-neutral, chances are there may be an argument based on equal protection.

For example, Chicago ordinance that prohibited all picketing near schools except peaceful labor picketing violated the equal protection clause because it made a distinction based on content between labor picketing and other picketing. Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972)

But note equal protection issues generally get subsumed under the First Amendment in speech cases.

If an individual has the right to engage in expressive activity, then a group of individuals may exercise their freedom of association to engage in that same activity. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461 (1958)

The Constitution protects the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends.

Freedom of Association

Vagueness may invalidate a criminal law in two ways. First, it may fail to provide notice that enables

ordinary people to understand what conduct it prohibits; Second, it may authorize and even encourage

arbitrary and discriminatory enforcement.Chicago ordinance prohibited

criminal street gang from congregating and loitering in public places. City of Chicago v. Morales, 527 U.S. 41 (1999)

It violated due process because no standard of conduct was specified and no guidelines were provided to law enforcement.

Due Process – Vagueness

Advising the Client

What can Pro-Life Advocates do to Protect Themselves?

Good tips for the Pro-Life Activist Client

Bring a friend with youTake pictures or video, carry a recording device Document the activities of the escorts and clinic workers Keep a journal or log with dates, names, details If you have questions about what conduct is permissible call your attorney or call or email LLDF 707-224-6675, info@lldf.org

Specific advice if dealing with a bubble zone law-

• Variety of types of bubble zone laws—whether it includes buffer zones, floating buffer zones, how far it extends, etc.

• No uniform approach to enforcement. Some police agencies only enforce if a mother complains, others if clinic workers or escorts complain.

• Err on the side of caution, advise clients to stay adequate distance away, remain stationary, but to know their rights and not be afraid to stand up to unlawful police orders and requests.

Conflict and Law Enforcement

Speak reasonably with the police. Be polite, courteous and respectful.

Try to accommodate reasonable requests Speak to a Supervisor or Watch CommanderCall attorney if situation is not quickly and favorably

resolved.

Advise Your Clients to Monitor Developing Laws

Clients could – keep an eye on City council agenda items watch the Local newspaper articles, letters to the editor get on anti-life websites, email lists check State Attorney General and Legislature websites

If an instance of speech-restricting legislation arises, Call LLDF for assistance To fight such laws, Attend City council meetings, speak

out, seek expert help Always document what occurs

Resources

Be Prepared! If you know where the client is planning to demonstrate, do the research first. This is especially helpful if it is a large demonstration or in a new area.

Call LLDF in advance and we can assist with research and preparation.

If clients are being told that they must comply with a certain code section (i.e. permit, signs, etc.), call LLDF and we will research the matter and communicate with government personnel to resolve the issue.

LLDF Resources

research has already been done for many of these topics research assistance is available model pleadings experienced lawyers to consult funding on a case-by-case basis

Never forget what you’re fighting for…

Questions, Comments, Concerns?

Defending the Free Speech

Rights of

Prolife Advocates Contact info - 707-224-6675, info@lldf.org