Sometimes I think some in our society would rewrite the First Amendment to read, “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble—-unless you are a pro lifer.” Consider: Peaceful protesters are barred from engaging in activities—say handing a pro life pamphlet while on public property to a woman entering an abortion clinic—that would never be applied against a labor union picketer or petition signature gatherer.  Alas, the Supreme Court has upheld rigid bubble zones, places around clinics where peaceful protest is not allowed.  (I agree that govt. has the duty to prevent protestors from blocking entrances to legal establishments and people from being harassed/intimidated by any protestor about any cause on public property).

Then, there is the problem of biased enforcement in free-speech free zones. Oakland has just been nailed for doing just that against a pro life pastor, and has now been slapped down for it by the Ninth Circuit Court of Appeals (!!).

Pastor Walter B. Hoye was arrested in Oakland for peacefully passing out pro life literature and seeking to have quiet conversations to dissuade women from aborting.  Rather than pay a fine and promise never to do so again, he was jailed for 30 days.  His conviction was overturned on procedural grounds, but still he was threatened with further prosecution.

With the help of the splendid and courageous Life Legal Defense Foundation (which did so much to help save the life of Terri Schiavo), Hoye sued to regain his constitutional rights.  And he won. First, the Court gave a little tutorial on the importance of free speech—even for unpopular views, which pro life principles really are in the SF Bay area.  From Hoyer v. Oakland:

Throughout our nation’s history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle,  enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution’s protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert.

Hoye claimed that Oakland selectively enforced the “bubble” by permitting pro abortion rights “escorts” to operate freely inside it, including allowing them to shout down pro life speakers, while keeping pro lifeers at bay.  One pro choice volunteer admitted being inside the bubble and acting to prevent pro life messages from being heard.  More than that, an Oakland police official admitted the city’s policy was to enforce the bubble rules against pro lifers, but not escorts.

The court upheld the constitutionality of the ordinance as written, bound by a Supreme Court ruling to so do.  But it noted that Oakland acted unconstitutionally in the manner in which it selectively enforced the law—which I have no doubt is happens elsewhere, as these ordinances and laws are (in my view, not the Court’s) are designed to inhibit pro life speech and no other:
[B]eneath the doctrinal intricacies lie two simple principles: that government may not favor speakers on one side of a public debate, and that government must not substantially foreclose, as a practical matter, speakers’ ability to communicate their message.

And that’s precisely what Oakland did:
The City’s policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral. It is the epitome of a content-based speech restriction...The City’s enforcement policy does not meet this level of neutrality. To distinguish between speech facilitating access and speech that discourages access is necessarily to distinguish on the basis of substantive content. Asking a woman “May I help you into the clinic?” facilitates access; “May I talk to you about alternatives to abortion?” discourages it. Telling a woman, “It’s your right to have an abortion!” facilitates access; telling her, “If you have an abortion, you will regret it!” discourages it. Here, the City has conceded, both at oral argument and through Captain Toribio’s deposition, that its policy is to permit speech on one side of a controversial public debate, but not on the other. The City’s implementation and enforcement of the Ordinance is therefore indubitably content-based.

And that violated Hoye’s free speech rights.  The question becomes what to do about it:
Oakland has insisted that there is no distinction between the actual Ordinance and what it enforces. In other words, there is no question that, under Hill, the City can restrict the speech of anti-abortion protestors like Hoye, but it is only constitutional for it to restrict anti-abortion protestors’ speech under a rule that also restricts pro-abortion speech. The Ordinance, as written, is such a valid rule; the Ordinance as interpreted and enforced by Oakland is not. The question is how to ensure that the rule enforced by Oakland is a content-neutral one, i.e. the rule that we believe the Ordinance actually pronounces, and not a content-discriminatory rule, i.e., the rule that Oakland erroneously enforces.

Either Oakland finds a way to enforce the ordinance constitutionally, or the ordinance must be enjoined:
On remand, the District Court should enter declaratory judgment in favor of Hoye, declaring that (1) Oakland’s policy of exempting speech “facilitating access” to clinics from the coverage of the Ordinance violates the First Amendment and that (2) the Ordinance, as written, does not exempt such speech and so is facially constitutional. If the District Court concludes that declaratory relief alone will be inadequate to change the City’s enforcement policy (and that Hoye satisfies the standard criteria for injunctive relief), it should then consider enjoining the City from continuing to enforce the Ordinance.

The case isn’t over. Hoye is still going after the ordinance itself, and thus he must demonstrate:
Does the Ordinance as applied to the actual circumstances—including the attempts by others to stifle Hoye’s speech, as opposed to simply countering it with opposing messages—foreclose ample alternative channels of communication? In other words, Hoye will bear the burden of showing that it is the Ordinance’s requirement that he obtain consent to approach, not the activities of escorts alone, that deprives him of ample alternative means of communication.

Good for Hoye and LLDF.  Pro life speech has been terribly abridged throughout the country, in my view, based on disdain by the Establishment for pro life beliefs.  Ordinances may not be written that way, but selective enforcement is often the result.   Such infringement of liberty should be fought, as here, at every turn.

 

Articles by Wesley J. Smith

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