Petition for Writ of Certiorari — Sabelko v. City of Phoenix
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' 981415 mR 41996
No. 95- __peeiee OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
KATHERINE SABELKO and NANCY BARTO,
Petitioners,
Vv.
THE Ciry OF PHOENIX, SKIP RIMSZA, in his official
capacity as Mayor of the City of Phoenix, and THELDA
WILLIAMS, FRANCES EMMA BARWOOD, CRAIG TRIBKEN,
JOHN NELSON, KATHY DuBS, SALOMON PF. LEUA, and
CALVIN C. GOODE, in their official capacity as members of
the City of Phoenix City Council,
Respondents.
Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Keith A. Fournier Jay Alan Sekulow
THE AMERICAN CENTER FOR (Counsel of Record)
LAW AND JUSTICE Walter M. Weber
1000 Regent University Dr. THE AMERICAN CENTER FOR
Virginia Beach, VA 23464 LAW AND JUSTICE
(804) 579-2489 1000 Thomas Jefferson St.,
N.W., Suite 304
Benjamin W. Bull Washington, DC 20007
THE AMERICAN CENTER FOR (202) 337-2273
LAW AND JUSTICE
11811 N. Tatum Blvd, #P184
Phoenix, AZ 85028
(602) 953-6100
Attorneys for Petitioners
i
QUESTIONS PRESENTED
The City of Phoenix enacted an ordinance requiring any
person engaging in "demonstration activity" within 100 feet of a
“health care facility" to withdraw, upon request, to a distance at
least eight feet away from the person making such a request. The
District Court declared this "Bubble" Ordinance unconstitutional,
but a divided panel of the Ninth Circuit reversed.
1. Does a “Bubble” Ordinance imposing an "audience
veto" on peaceful expression in a public forum
violate the First Amendment?
2 Did the Ninth Circuit err by holding that the
“captive audience” doctrine applies to people using
public sidewalks?
3. Is a "Bubble" Ordinance unconstitutiona) under this
Court’s decision in Madsen v. Women’s Health
Center, Inc., 512 U.S. __, 114 S.Ct. 2516
(1994), which struck down an_ injunction
forbidding "approaching" persons without their
consent, id. at 2529?
4. Does the Phoenix "Bubble" Ordinance violate the
right to free speech under the First Amendment?
ii
PARTIES
The caption of the case contains the names of all parties.
There are no parent companies or nonwholly owned subsidiaries.
TABLE OF CONTENTS
av ewen
a eee
TV. Pomding Related Cases... 1.2 eee ccees
REASONS FOR GRANTING THE WRIT ...........
I. THE DECISION OF THE NINTH
CIRCUIT DIRECTLY CONFLICTS
WITH THIS COURT’S DECISION IN
MADSEN v. WOMEN’S HEALTH
re ey ent ee ee ee
iv
Il. THE DECISION BELOW CREATES AN
UNPRECEDENTED EXPANSION OF
THE "CAPTIVE AUDIENCE"
EXCEPTION TO FREE SPEECH BY
APPLYING THAT EXCEPTION TO AN
AUDIENCE USING A_ PUBLIC
POI, 6 boc eee ce Rib eee wet 16
Il. THE DECISION OF THE NINTH
CIRCUIT DIRECTLY CONFLICTS
WITH A DECISION OF THE EIGHTH
| Pee ee eS. Ee eer ee 18
IV. THE DECISION OF THE NINTH
CIRCUIT CONFLICTS WITH A
DECISION OF THE NORTH DAKOTA
SUPE COARSE. 5 5 URGE Sie 19
V. IF ALLOWED TO STAND, THE
DECISION BELOW PRESENTS THE
PROSPECT OF OTHER SELECTIVE
"BUBBLE" ORDINANCES. .......... 20
COURS cnt ascot camaur i eee eae 21
APPENDICES:
A. Opinion, Sabelko v. City of Phoenix
Gta Ce. Ont. 10; TOR SS Fw la
B. Order, Sabelko v. City of Phoenix
Os Che. Thee. G TORR a 6 ca Slee cece 20a
A her
—e
Vv
Memorandum of Decision and Order
Sabelko v. City of Phoenix
GA Ahy eee sk base ate ns
Judgment in a Civil Case
Sabelko v. City of Phoenix
(D. Ariz. Feb. 11, 1994) 0.0... cc cee eeee
City of Phoenix, Ordinance No. G3705 .......
Order, Edwards v. City of Santa Barbara
(C.D. Cal. March 14, 1995) ..............
Memorandum, Edwards v. City of Sania Barbara
Cas Cat, Fees a, SPO) sw hee Se eS
Motion for Leave of Court to File Brief of
Amici Curiae, Sabelko v. City of Phoenix
U.S. Court of Appeals for the Ninth Circuit
a Sk See oa a ee
vi
TABLE OF AUTHORITIES
Cases
Board of Airport Commissioners v. |
Jews for Jesus, Inc.
a Se, 1, eee rete Le as Fire 11
Boos v. Barry |
405 U.3. HOG eri eae 12, 14 |
Coates v. City of Cincinnati |
GB US. GEE ea sk cc esce cet eee 12
Cohen v. California .
13.US. 19 GSI. vc eta cee erces ei bras 17 ;
Connally v. General Const. Co.
209 U.S... SS CGR ois le. SEINE Ses ek 12
Edwards v. City of Santa Barbara
883 F.Supp. 1379 (C.D. Cal. 1995) ............. 9, 13
Edwards v. City of Santa Barbara |
No. 95-55595 (9th Cir. Nov. 22, 1995) ............ 9
Fargo Women’s Health Organization, Inc. v. .
Lambs of Christ |
488 N.W.2d 401 (N.D. 1992) ............... 10, 19 .
Forsyth County, Ga. v. Nationalist Movement |
905 UB. Ga CORR o's on 0 Vi ees aes 12
Frisby v. Schultz )
SSF U.S. Gre (R0Gee + ok ccncus Geeea ees 11, 16, 17
)
Vii
Grayned v. City of Rockford
ee NOTE Sa ctv ash tween od pene el 12
Hustler Magazine v. Falwell
RS RT Pere ee riers ek kee 20
Kovacs v. Cooper
Ss ae EE Xe 0b e se 0a 6 eee: 14, 16, 17
Lehman v. City of Shaker Heights
UE SRG ES kek Wicd ok nd v8 2 eo oe ae 16, 17
Madsen v. Women’s Health Center, Inc.
512 U.S. __, 114 S.Ct. 2516 (1994) .. 4, 10, 11, 13-17, 21
NAACP vy. Claiborne Hardware Co.
Se ee 5 no wee die i CN Obed eee ees 18
Organization for a Better Austin v. Keefe
RS gs Se geri eee ene 18
Pro-Choice Network of Western New York v.
Schenck
opm Roya 8} my. Bria ae aero eee 17
Riley v. National Fed’n of the Blind of
North Carolina, Inc.
GEE Se ME ig 655 65-0 Vo 6 oe VES wees 12
Sabelko v. City of Phoenix
68 F.3d 1169 (Sth Cir. 1995) ......... 1, 4, 8, 9, 14, 16
Sabelko v. City of Phoenix
846 F.Supp. 810 (D. Ariz. 1994) ........... 2,4, 7,8
Viii
Sabelko v. City of Phoenix
No. 94-15495 (9th Cir. Dec. 8, 1995) ............. 1
Schenck v. Pro-Choice Network of Western
New York, et al.
64 USLW 3486 (U.S. Sup. Ct. Dec. 27, 1995)
Ce Ee Siok ee kee Mole wee hee eweek bis 10
Texas v. Johnson
SR AI. Bt 6 a ESR ee aH 12, 14
United Food and Commercial Workers Int’l
Union v. IBP
857 F.2d 422 (8th Cir. 1988) ................ 10, 18
United States v. Eichman
EUS. Sete. 6a ek pe 6 hn oe eR wd 12, 14
United States v. Grace
GS CEM. S78 Cee. x 66a ae he ee KA o's 2S 11
Constitutional and Statutory Provisions
18 U.S.C. § 248, Freedom of Access to
Clinic Entrances Act of 1994 ..............-0006. 9
ee ls SR a. hile bg 6 EA I RR 2
Re Seas OE 6b od Rs CK OER eo 6
Phoenix City Code § 23-10.1 ................. 3, 4, 6
Ws CANE, FRR Bo eo 0-08 6 RRS CC eS BOG 2
U.S. Const., Amend. XIV, § AP Ce Ieee ee Fok, 4,3
Dee Hh ARM ct RE ID
Fo SNR
hd aig ED em
No. 95-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
KATHERINE SABELKO and NANCY BARTO,
Petitioners,
Vv.
THE CiTy OF PHOENIX, SKIP RIMSZA, in his official
capacity as Mayor of the City of Phoenix, and THELDA
WILLIAMS, FRANCES EMMA BARWOOD, CRAIG TRIBKEN,
JOHN NELSON, KATHY DUBS, SALOMON F. LEIA, and
CALVIN C. GOODE, in their official capacity as members of
the City of Phoenix City Council,
Respondents.
Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
DECISIONS BELOW
The decision of the United States Court of Appeals for the
Ninth Circuit is reported as Sabelko v. City of Phoenix, 68 F.3d
1169 (9th Cir. 1995}. App. la. The order denying the petition for
rehearing with suggestion for rehearing en banc is not reported.
Sabelko v. City of Phoenix, No. 94-15495 (9th Cir. Dec. 8, 1995).
App. 20a. The decision of the United States District Court for the
2
District of Arizona is reported as Sabelko v. City of Phoenix, 846
F.Supp. 810 (D. Ariz. 1994). App. 22a.
JURISDICTION
The decision of the United States Court of Appeals for the
Ninth Circuit was entered on October 19, 1995. The Court of
Appeals entered its order denying the petition for rehearing and
rejecting the suggestion for rehearing en banc on December 8,
1995. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS AND ORDINANCE
I. United States Constitution
The First Amendment to the United States Constitution
provides as follows:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. Const., Amend. I.
The first section of the Fourteenth Amendment to the
United States Constitution provides as follows:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
ee ee eee tele et ee Oe TT 6 ee SR Oe ee ord
3
without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
U.S. Const., Amend. XIV, § 1.
II. Ordinance
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE
FACILITIES.
A. It is unlawful for any person, in the course of
demonstration activity within the access area of a health care
facility, to fail to withdraw upon a clearly communicated request
to do so to a distance of at least eight (8) feet away from any
person who has made the request.
B. For purposes of this section:
3 "Access area" means any portion of a
public street or other public place or any place open to the
public within one hundred (100) feet of an exterior wall or
entryway of a health care facility.
2. "Demonstration activity” includes but is not
limited to protesting, picketing, distributing literature,
attempting to impede access, or engaging in oral protest,
education or counseling activities.
3. "Health care facility" means any hospital,
clinic, office, building or other place used to provide
medical, psychological, nursing or other health care
services, including family planning counseling and
pregnancy-related services.
4
C. For purposes of this section, distance shall be
measured from that part of the closest demonstrator’s body that is
nearest to the closest part of the requesting person’s body. The
term “body” includes any natural or artificial extension of a
person’s body including but not limited to an outstretched arm or
a hand-held sign. See App. 56a.
STATEMENT OF THE CASE
In this case, a divided panel of the Ninth Circuit upheld the
constitutionality of a City of Phoenix “Bubble” Ordinance that
makes it a crime to do nothing more than engage in peaceful and
nonthreatening expression within eight feet of an audience or
bystander that does not wish to hear or see the message. Sabelko
v. City of Phoenix, 68 F.3d 1169 (9th Cir. 1995). This provision,
codified as an ordinance of general applicability, is substantially
similar to a provision held unconstitutional in Madsen v. Women’s
Health Center, Inc., 512 U.S. __, 114 §.Ct. 2516 (1994). The
District Court had held the "Bubble" Ordinance unconstitutional on
First Amendment grounds, Sabelko v. City of Phoenix, 846
F.Supp. 810 (D. Ariz. 1994), but the divided Ninth Circuit panel
reversed.
I. Petitioners
Petitioners engage in peaceful hand-to-hand leafletting and
one-on-one sidewalk counseling about abortion and abortion
alternatives. Petitioners have never been arrested or charged with
any criminal or civil violation or offense. They strongly oppose
violence, harassment, and lawlessness. They have no desire to
block or physically impede access to an abortion facility. In their
expressive activities, they have never intentionally touched or
harassed anyone or expressed themselves other than in a peaceful
and nonconfrontational manner. CR 4, 5.
tail eatin, te
ene eee eS
5
To be effective, Petitioners’ counseling must be conducted
in a quiet tone of voice on a one-on-one basis, with the
communication of empathy and supportive body language, and with
eye contact in close proximity to the person counseled. The eight
feet restriction requires Petitioners to raise their voices if they wish
to be heard over ambient street noise. Speaking in a loud voice
prevents empathy and sometimes even causes stress in the person
they are addressing. CR 4, 5, 36.
As a consequence of the enactment of the "Bubble"
Ordinance, the Petitioners curtailed their expressive activities
because of fear of prosecution under the Ordinance. CR 4, 5.
Phoenix abortion facilities employ “escorts” who attempt
to prevent the communication of anti-abortion literature and
information, by Petitioners and other pro-life activists, to persons
accessing the abortion facilities. The "escorts" place themselves
between anti-abortion leafletters and counselors and the persons to
whom they are attempting to communicate. CR 33.
Il. The "Bubble" Ordinance
In the fall of 1993, Planned Parenthood of Central and
Northern Arizona, Inc. ("Planned Parenthood") pressed ihe
Phoenix City Council for the enactment of the "Bubble" Ordinance.
Planned Parenthood complained that its abortion facilities are
"regularly the target of ‘right to life’ . . . demonstrators" that
"persist . . . in trying to badger . . . patients to listen to them or
to accept their graphic literature, even after the patient . . . stated
a desire to be left alone. ..." "In response" to Planned
Parenthood’s demands, “the Phoenix City Council passed the
Ordinance that is the subject of this litigation.” At the Phoenix
City Council Session held in connection with the enactment of the
Ordinance, the only issue raised by proponents of the Ordinance
was the allegedly offensive and emotionally unsettling anti-abortion
6
speech occurring on the public streets and sidewalks near abortion
facilities. CR 13.
On November 17, 1993, the City of Phoenix enacted the
"Bubble" Ordinance, codified as section 23-10.1 of the City Code.
The restriction applies to speech deemed “demonstration activity,"
which is undefined but includes all "protesting, picketing,
distributing literature” and all “education and counseling activities"
on any topic. The Ordinance requires any person engaging in
"demonstration activity" to withdraw to eight feet away from the
person who orders it, or to discontinue the expression. The
required separation of eight feet is measured from the end of any
“outstretched arm” or “artificial extension" held by either person.
The Ordinance operates on all public ways, including sidewalks,
within 100 feet of a defined “health care facility." “Health care
facility” is not limited to traditional medical facilities such as
hospitals or medical clinics. It includes nonmedical facilities, such
as any business, factory, or school, where one person (e.g., a nurse
or counselor) uses the "place" “te provide" “medical,
psychological, nursing, or other health care services, including
family planning counseling and pregnancy-related services." App.
57a-58a.
Ill. The Decisions Below
On November 23, 1993, five days after Phoenix enacted
the "Bubble" Ordinance, Petitioners filed this civil rights action
under 42 U.S.C. § 1983 alleging that the Ordinance was facially
unconstitutional. Petitioners requested a declaratory judgment, and
preliminary and permanent injunctive relief. Petitioners also
applied for a Temporary Restraining Order, which the District
Court granted. Pursuant to the stipulation of the parties, the TRO
remained in effect pending a determination of the Petitioners’
application for a preliminary injunction and declaratory relief. On
February 11, 1994, the District Court issued an order entitled
ze sia at
7
"Judgment in a Civil Case" and a "Memorandum of Decision and
Order" declaring the Ordinance unconstitutional and granting a
preliminary injunction. Sabelko v. City of Phoenix, 846 F.Supp.
810 (D. Ariz. 1994). App. 54a; App. 22a.
The District Court held the "Bubble" Ordinance
unconstitutional under the First Amendment on numerous grounds.
First, the Court held the Ordinance impermissibly content-
based. "“[T]he legislative history of the Ordinance demonstrates,
without qualification, that the Ordinance was enacted in direct
response to ‘anti-abortion’ speech outside medical clinics." App.
34a. Further, the Ordinance "targets ‘protest’ communications,”
while leaving nonprotest expression unrestricted. In addition, the
restrictions on speech turn on the basis of "[l]isteners reaction to
[the] speech.” App. 35a.
The District Court next held that the Ordinance was
unconstitutionally overbroad. While its “annunciated intent" was
to "prevent impeded access to health care facilities," the Ordinance
restricts "passive leafletting and handbilling," "the display of signs
. . . and even the mere voicing of statements which are of an
educational, counseling, or protesting nature." App. 38a.
Moreover, the Ordinance empowers individuals with unfettered and
standardiess authority, enforced by the City, to restrict expression.
App. 40a-41la.
The District Court then held the Ordinance
unconstitutionaily vague. The lawfulness of speech impermissibly
turns on the reactions of others. A speaker cannot know, with
constitutional certainty, what speech will be deemed
“demonstration” speech. App. 43a.
8
Last, the District Court held that by effectively banning
hand-to-hand leafletting, the Ordinance failed to provide alternative
channels of communication. App. 45a-46a.
On October 19, 1995, a panel of the Ninth Circuit, in a
divided decision (2-1), reversed the District Court and held that the
"Bubble" Ordinance passed constitutional muster. Sabelko v. City
of Phoenix, 68 F.3d 1169 (9th Cir. 1995). App. la. The majority
held that the Ordinance was content-neutral because, like the "36-
foot ‘buffer zone’" injunction in Madsen, the restriction "makes no
reference to the content of the speech it purports to regulate."
App. 6a. The Court ruled that the Ordinance is "‘narrowly tailored
to serve a significant governmental interest, and leaves open ample
alternative channels of communication’.". App. 7a. The Court
explicitly held that "persons approaching a health care facility
represent a ‘captive audience’" and that the “public area adjacent
to a health care facility" may not be "considered, for all purposes,
an open forum." App. 8a. The Court rejected the fear that clinic
“escorts or others . . . may create a [no speech] zone. . . larger
than the eight feet contemplated by the Ordinance." The Court
also reasoned that allowing "‘any person’,” such as a Clinic
"escort" or other third person, to silence a demonstrator serves to
preserve the privacy interests of the patient. App. 8a-9a. The
majority purported to distinguish the similar "consent" provision
struck down in Madsen, reasoning that, by contrast, the "Bubble"
Ordinance "permits any approach to any individual until the
individual requests a disengagement." App. 9a-10a.
In a strong dissenting opinion, Judge Beezer argued that the
Ordinance was unconstitutional "[bJecause . . . [i]t is not narrowly
drawn and overly burdens protected speech." App. 12a. He
reasoned that while the government has an interest in preserving
unimpeded patient access to medical clinics, the Ordinance places
a “‘substantial . . . burden on speech [that] does not serve to
we Sine all ——
9
advance its goals’." App. 16a. He argued that "[a]nybody in the
area of the facility," including nonpatients, “are free to effectively
silence any speech they find objectionable by invoking the
‘pubble’.” Thus, "peaceful communicator[s] . . . are chilled."
App. 16a. He also argued that the Ordinance can be used to
prevent ieafletting or handbilling on sidewalks by means of
"escorts" approaching leafletters and invoking the “bubble”
wherever the leafletter goes within "the 100-foot buffer zone."
Thus, "[s]trategic use of the ‘bubble’ could eviscerate" handbilling
and leaf “tting. App. 17a. He stressed that "[a] number of people
acting in concert can .. . effectively prevent all peaceful
communication [turning] [the] entire 100-foot buffer zone into a no
speech zone." App. 17a. He argued that, unlike the federal
Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18
U.S.C. § 248, the “ordinance broadly sweeps at peaceful
communication that lies at the core of the First Amendment."
App. 17a-18a. Last, he pointed out that “Madsen’s
[unconstitutional] consent provision is functionally indistinguishable
from" the “Bubble” Ordinance. “In Madsen, all uninvited
approaches were barred; here, all unwanted approaches are barred.
The effect is the same; more speech than necessary is effectively
silenced." App. 18a-19a.
IV. Pending Related Cases
On March 14, 1995, in a related case, Edwards v. City of
Santa Barbara, 883 F.Supp. 1379 (C.D. Cal. 1995), the United
States District Court for the Central District of California held an
identical Santa Barbara "Bubble" Ordinance provision to be
unconstitutional for reasons similar to those expressed by Judge
Beezer. App. 82a-89a. On November 22, 1995, subsequent to the
Ninth Circuit’s decision in the case at bar, the Ninth Circuit
vacated the Edwards decision and remanded that case back to the
10
District Court in light of its Sabelko opinion. App. 97a. Edwards
is now in the District Court for further proceedings.
This Court has pending for determination a Petition for
Certiorari in Schenck v. Pro-Choice Network of Western New York,
et al., 64 USLW 3486 (Dec. 27, 1995) (No. 95-1065), involving
a similar "bubble" provision. In Schenck, a divided en banc
Second Circuit upheld a similar "bubble" provision contained in an
injunction.
REASONS FOR GRANTING THE WRIT
The decision of the court below works a revolution in First
Amendment jurisprudence. First, the Ninth Circuit approved an
"audience veto” restriction on speech in a public forum, contrary
to many cases condemning the “heckler’s veto." Second, the Ninth
Circuit explicitly expanded the "captive audience" doctrine into the
public forum, jettisoning prior limitation on that narrow exception
to the First Amendment.
En route to its decision, the court below ran into a head-on
conflict with this Court’s decision in Madsen v. Women’s Health
Center, invalidating a substantially similar "audience consent"
provision. 114 S.Ct. at 2529. The Ninth Circuit’s decision also
conflicts directly with the Eighth Circuit’s decision in United Food
and Commercial Workers Int'l Union v. IBP, 857 F.2d 422 (8th
Cir. 1988), which held unconstitutional a statute that made it a
crime to persist in communicating with another person about
employment when the listener requested the speaker to desist. The
Ninth Circuit’s decision also directly conflicts with the decision of
the Supreme Court of North Dakota in Fargo Women’s Health
Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.
1992), striking down an injunction provision containing a
11
restriction substantially identical to the Phoenix “Bubble"
Ordinance.
The Phoenix "Bubble" Ordinance restricts peaceful and
nonthreatening expression of all persons, including persons who
have never harassed anyone or engaged in any misconduct, in all
public fora near places used for any sort of medically related
counseling or nursing. Most significantly, unlike a site-specific
injunction that narrowly restricts only the conduct of particular
troublemakers, this restriction on speech is codified as a law of
general applicability, limiting the expressive rights of all persons.
This draconian ordinance is absolutely without precedent.
The decision below approves an ordinance which creates
100-foot zones within which abortion facilities can ban all
unwanted speech. Abortion clinic "escorts" need only “shadow"
leafletters, continuously invoking the “bubble."' Furthermore, the
Ordinance may be used to ban unwanted speech within 100 feet of
any business, factory, school, or other place where a single nurse
or counselor is brought in and "provides" some health related
service on the premises. This is in direct conflict with this Court’s
repeated admoniticns against total bans on expression in a public
forum. Madsen, 114 S.Ct. at 2527; Frisby v. Schultz, 487 U.S.
474, 486 (1988); Board of Airport Commissioners v. Jews for
Jesus, Inc. , 482 U.S. 569, 575 (1987); United States v. Grace, 461
U.S. 171, 181 (1983).
‘Indeed, at the hearing on the motion for preliminary
injunction, the City’s counsel agreed with Petitioners’ attorney that
under the Ordinance, clinic employees or volunteers could invoke
the “bubble” even if the patients they were escorting affirmatively
indicated that they wanted to talk to the sidewalk counselor or
receive pro-life literature. CR 29.
12
The "Bubble" Ordinance essentially creates an "audience
veto." The Ninth Circuit’s decision, therefore, directly conflicts
with numerous decisions of this Court holding that statutes
restricting speech on the basis of listener reaction or the
communicative impact of speech are unconstitutional content-based
restrictions. Forsyth County, Ga. v. Nationalist Movement, 505
U.S. 123, 134 (1992); United States v. Eichman, 496 U.S. 310,
317-18 (1990); Texas v. Johnson, 491 U.S. 397, 411-12 (1987);
Boos v. Barry, 485 U.S. 312, 321 (1988).
The decision below also conflicts with the vagueness
doctrine this Court has recognized under the First Amendment.
Where the lawfulness of speech turns on the reactions of others, the
restriction is unconstitutionally vague. Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971); also see Johnson, 491 U.S.
at 407-410. Also, because persons cannot know with any degree
of reasonable certainty what speech will be deemed "protest,"
"education," or "counseling," speakers, such as Petitioners, are
forced to censor their speech out of fear of prosecution. Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972); Riley v.
National Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781,
801 (1988); Connally v. General Const. Co., 269 U.S. 385, 391
(1926).
The issues this case presents have profound national
significance well beyond the interests of the two Petitioners. While
claiming only to serve its interest in preserving unimpeded access
to health care facilities, Phoenix has restricted nonthreatening and
peaceful expression that does not impede or interfere with access.
Most significantly, dozens of other cities have already begun to
enact copycat "bubble" ordinances. For example, at least 35
California cities have "enacted or would like to enact ordinances
:
aw
en
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: >
13
similar" to the Phoenix “Bubbie" Ordinance.* The Ninth Circuit’s
decision validating this unprecedented municipal restriction of free
speech rights has far-reaching and transcendent implications.
I, THE DECISION OF THE NINTH CIRCUIT
DIRECTLY CONFLICTS WITH THIS COURT’S
DECISION IN MADSEN v. WOMEN’S HEALTH
CENTER.
In Madsen v. Women’s Heaith Center, this Court struck
down a substantially similar “audience veto" or "consent"
provision. In Madsen, an injunction prohibited named
demonstrators from “approaching any person seeking the services
of the Clinic unless such person indicates a desire to
communicate." 114 S.Ct. at 2529. While recognizing that
protecting patients from being "stalked" or "shadowed" was a
legitimate goal, this Court had little difficulty invalidating the
provision, concluding that "[t]he ‘consent’ requirement alone
invalidates the provision; it burdens more speech than necessary to
prevent intimidation and to ensure access to the clinic." Jd. at
2529.
The Phoenix “Bubble" Ordinance is constitutionally
indistinguishable and suffers from the same deficiency. As Judge
Beezer stated below, in dissent:
*E.g., see Edwards v. City of Santa Barbara, 883 F.Supp.
1379 (C.D. Cal. 1995) (Santa Barbara’s “bubble” ordinance).
App. 60a-6la. Thirty-four different California cities appeared
jointly as amici curiae in the case at bar. They stated below:
"Amici are thirty-four cities throughout the State of California who
have enacted or would like to enact ordinances similar to the
ordinance adopted by the City of Phoenix, Arizona, at issue in this
case." App. 98a-99a.
4
Madsen’s consent provision is functionally indistinguishable
from the one at issue here. In Madsen, all uninvited
approaches were barred; here, all unwanted approaches are
barred. The effect is the same; more speech than
necessary is effectively silenced.
Sabelko, 68 F.3d at 1177 (Beezer, J., dissenting) (emphasis added)
(App. 19a). Like the Madsen "consent" provision, the Phoenix
"bubble" prohibits approaches, "regardless of how peaceful the
contact may be." Madsen, 114 S.Ct. at 2529. "Absent evidence
that the protestors’ speech is independently proscribable (i.e.,
‘fighting words’ or threats), or is so infused with violence as to be
indistinguishable from a threat of physical harm, . . . this provision
cannot stand." /d.
The Phoenix "bubble" does operate in a somewhat different
manner than the provision invalidated in Madsen. However,
nothing in the Madsen decision suggests that this distinction has
constitutional significance. Both restrictions subject the would-be
speaker to an "audience veto." Both provisions restrict speech, no
matter how nonthreatening and peaceful, simply because the
intended audience, or even a passerby, wishes to restrict it.
Although the First Amendment does not guarantee to every speaker
willing listeners, it does protect the "opportunity to win their
attention." Kovacs v. Cooper, 336 U.S. 77, 87 (1949). The First
Amendment protects the right to engage in expression even though
directed at unfriendly or unsympathetic audiences. Eichman, 496
U.S. at 318-19; Johnson, 491 U.S. at 414. And see Boos, 485
U.S. at 323. "As a general matter, we have indicated that in
public debate our own citizens must tolerate insulting, and even
outrageous, speech in order to provide adequate breathing space to
the freedoms protected by the First Amendment." Madsen, 114
S.Ct. at 2529 (quoting Boos v. Barry, 485 U.S. at 322).
Stat eee OR Ee Be aE 1 NO ES TR Re oh ers ae v ala,
15
As noted above, the Ordinance even goes beyond the
unconstitutional "consent" provision in Madsen. It restricts
expression at places having nothing at all to do with the delivery of
medical care. The definition of "health care facility" is so broad
that any "place" -- e.g., a shipyard or large plant -- can have one
"nurse" or "counselor" on premises during a lz’ >r strike and
thereby trigger the restrictions on unwanted speech within 100 feet
of the company’s "premises." Similarly, where a defined “health
- care facility" is located within an office building with other tenants,
the Ordinance will operate to restrict expression on public issues
having nothing at all to do with health services or abortion within
100 feet of the building.
Further, as Judge Beezer stressed in his dissent below, the
Ordinance permits the creation of a 100-foot ban on all unwanted
speech. Abortion facility "escorts" can simply shadow pro-life
leafletters, such as Petitioners, and invoke the “bubble” as the
leafletter approaches potential recipients. Worse yet, a clinic
employee could approach a demojistrator doing no more than
peacefully holding an anti-abortion sign, and with a series of
commands to withdraw, back the demonstrator outside the 100 foot
perimeter.
The Ninth Circuit hinged its holding on the portion of
Madsen in which this Court upheld a limited 36-foot buffer zone.
Madsen, 114 S.Ct. at 2527. In doing so, the divided panel mixed
apples with onions and effectively turned Madsen on its head. The
Phoenix "Bubble" Ordinance is plainly closer in substance to the
"consent" provision which Madsen overturned, than to the "buffer
zone" which Madsen upheld in part. Furthermore, the Ninth
Circuit’s decision completely ignores the critical basis for the
injunction in Madsen. This Court explained in Madsen that "the
state court imposed restrictions on petitioners . . . because they
repeatedly violated the court’s original order." Jd. at 2524
16
(emphasis added). The Court emphasized “the fact that the state
court originally issued a much narrower injunction, providing no
buffer, [but] this order did not succeed in protecting access to the
clinic.” Jd. at 2527. Repeated lawbreaking and violations of the
narrower order by the defendants in Madsen convinced this Court
to uphold the injunction against the defendants. Here, unlike the
lawbreakers in Madsen, it is undisputed that Petitioners and many
others have never engaged in any misconduct or disorder at an
abortion facility. Furthermore, as an ordinance of general
applicability, the Phoenix "Bubble" Ordinance restricts everyone,
not just particular troublemakers.
Il. THE DECISION BELOW CREATES AN
UNPRECEDENTED EXPANSION OF THE "CAPTIVE
AUDIENCE" EXCEPTION TO FREE SPEECH BY
APPLYING THAT EXCEPTION TO AN AUDIENCE
USING A PUBLIC FORUM.
The court below declared that “persons approaching a
health care facility represent a ‘captive audience’” and that,
therefore, public sidewalks adjacent to such a facility need not be
“considered, for all purposes, an open forum." App. 8a. This
holding guts the First Amendment and flies in the face of this
Court’s "captive audience” decisions.
This Court has upheld restrictions on speech in a handful
of cases where an unwilling listener would be unable to escape
from the speech. Examples of "captive audiences" include the
resident trapped in his home, Frisby v. Schultz, 487 U.S. 474;
listeners unable to escape sound trucks broadcasting “in a loud and
raucous manner," Kovacs v. Cooper, 336 U.S. 77; and riders on
public transportation, Lehman v. City of Shaker Heights, 418 U.S.
298 (1974).
dan
-- ”
17
No case has ever held that persons were “captive
audiences" because of a momentary encounter with speech in a
public forum. On the contrary, each of the above cases, as well as
many others, explic‘tly distinguish the “captive audience” situation
from that of a person in a public place making momentary contact
with speakers. See, e.g., Kovacs, 336 U.S. at 86-87 ("The
unwilling listener is not like the passerby who may be offered a
pamphlet in the street but cannot be made to take it"); Lehman, 418
U.S. at 303 ("Here we have no open spaces, no meeting hall, park,
street corner, or public thoroughfare"); Frisby, 487 U.S. at 484
("Although in many locations, we expect individuals simply to
avoid speech they do not want to hear [citations omitted], the home
is different").
In short, ir public places, the burden is on the unwilling
listener or viewer to “avoid further bombardment of their
sensibilities simply by averting their eyes." Cohen v. California,
403 U.S. 15, 21 (1971). In the case at hand, this avoidance would
take the form of simply walking past the picketers and counselors
and into the building.
The Ninth Circuit claims to find support in Madsen for its
novel and dramatic expansion of the “captive audience" doctrine.
In so doing, the court below badly misread this Court’s Madsen
decision. Madsen upheld an injunctive restriction on noise audible
to patients “inside the [abortion] clinic," where doctors and patients
are presumably "captives" similar to the occupant of a home.
Madsen, 114 S.Ct. at 2526, 2528. Madsen, however, never
applied the “captive audience" doctrine to the public sidewalks
outside. See Pro-Choice Network of Western New York v. Schenck,
67 F.3d 377, 406 n.5 (2nd Cir. 1995) (en banc) (Meskill, J.,
dissenting):
18
The Madsen Court simply recognized that women in the
clinic were “held ‘captive’ by medical circumstance,"
Madsen, 114 S. Ct. at 2526, thus supporting some of the
injunction’s restrictions, for example, those on banning
loud noise levels or prohibiting the use of sound
amplification equipment. This, however, does not mean
that the women approaching the clinic are captive, and
nothing in Madsen can be read as so holding.
People approaching an abortion facility, therefore, cannot be
deemed a “captive audience" anymore than could people
approaching any place of employment, any government building,
any courthouse, any school, any airport or bus terminal -- in short,
virtually any place one "has to" go. The Ninth Circuit’s rationale
is a formula for revoking the First Amendment.
Ill. THE DECISION OF THE NINTH CIRCUIT
DIRECTLY CONFLICTS WITH A DECISION OF
THE EIGHTH CIRCUIT. :
The Ninth Circuit’s decision upholding the “Bubble”
Ordinance squarely conflicts with the Eighth Circuit’s decision in
United Food and Commercial Worker's Int’l Union v. IBP, 857
F.2d 422 (8th Cir. 1988), holding that statutory restrictions on
unwanted labor speech are unconstitutional. The /BP case involved
a Nebraska statute that, in relevant part, made it unlawful to
“persist{] in talking to or communicating in any manner with
[another] person or members of the person’s family against their
will" about matters related to employment. /d. at 432. In words
equally applicable to the Phoenix Ordinance, the Eighth Circuit
stated: "That the speech is unwelcome does not deprive it of
protection.” Jd. (citing NAACP v. Claiborne Hardware Co., 458
U.S. 886, 910 (1982); Cohen, 403 U.S. at 26; Organization for a
Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).
19
Under the Phoenix "Bubble" Ordinance, any business,
company, or factory -- having no other connection with the
delivery of general heaith care services -- can have a single "nurse"
or “counselor” on its premises and thereby invoke the Ordinance’s
speech restrictions on all public property within 100 feet of the
premises. For instance, in a labor dispute, a company or factory
can, under the Ordinance, trigger the restriction on labor speech by
means of bringing a “nurse” or “counselor” on the premises
ostensibly to “provide” some sort of “health care service" or
“counseling.” In short, the "Bubble" Ordinance -- and the decision
sustaining it -- cannot be reconciled with /BP.
IV. THE DECISION OF THE NINTH CIRCUIT
CONFLICTS WITH A DECISION OF THE NORTH
DAKOTA SUPREME COURT.
In addition to the JBP decision of the Eighth Circuit, the
Ninth Circuit’s decision also directly conflicts with the North
Dakota Supreme Court’s decision in Fargo Women's Health
Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.
1992). Lambs of Christ involved an injunction against anti-abortion
demonstrators that, inter alia, prohibited then: from “speaking to
staff and patients . . . who indicate that they do not wish to be
spoken to" and from “‘distributing leaflets or brochures to any
person who has indicated orally or by gesture that such person does
not wish to receive such literature’." /d. at 407 n.1. The court
invalidated these restrictions, stressing the constitutionally protected
nature of speaking and leafletting, and holding that other measures
were available to ensure “protection from those protestors who
physically force literature on passers-by." /d. at 411. This
analysis is equally applicable to the Phoenix "Bubble" Ordinance.
20
V. IF ALLOWED TO STAND, THE DECISION BELOW
PRESENTS THE PROSPECT OF OTHER
SELECTIVE "BUBBLE" ORDINANCES.
The undisputed selectivity of the City of Phoenix in
protecting the interests of Phoenix abortion facilities from unwanted
expression presents the glaring prospect of other selective "bubble"
ordinances being enacted at the behest of others upset by
demonstrations at their places of business. For instance, in
response to animal rights demonstrators earnestly engaging
potential purchasers of fur coats, a municipality, at the insistence
of furriers and department store owners, might impose a “bubble”
ordinance aimed at demonstrations in front of clothing stores.
Similarly, during an acrimonious lettuce boycott in which there has
been documentation of some instances of shoppers being verbally
accosted by farm workers, the city might, at the urging of the
lettuce growers and operators of supermarkets, impose a "bubble"
ordinance applicable only to demonstrations at grocery stores. Or
the federal government might impose a “bubble” applicable to the
areas abutting recruiting centers to protect potential military
recruits from being “harassed” by anti-military protestors.
A truly general law that requires demonstrators to withdraw
upon request would obviously be unconstitutional. But specialized
legislation designed to protect only certain persons or businesses
from face-to-face confrontations with demonstrators, while other
less influential people similarly vexed by zealous demonstrators are
forced to rely on general criminal laws, raises core First
Amendment concerns. "For it is a central tenet of the First
Amendment that the government must remain neutral in the
marketplace of ideas." Hustler Magazine v. Falwell, 485 U.S. 46,
56 (1988). This equality principle is so basic that this Court has
ruled that it extends even to the regulation of expression not
protected by the First Amendment. See R.A.V. v. City of St. Paul,
Minnesota, 505 U.S. 377, 391-94 (1992).
a ae ee ee —
21
In Madsen, this Court explained that injunctions “carry
greater risks of censorship and discriminatory application than do
general ordinances." See Madsen, 114 S.Ct. at 2524. But an
ordinance limited to protecting certain industries -- such as abortion
businesses -- raises the same spectre of discrimination. Such an
ordinance, moreover, does not even enjoy the advantage of limiting
itself -- like an injunction -- to particular, proven malefactors. The
Phoenix "Bubble" Ordinance thus partakes of the worst of both
worlds. For while any business plagued by disruptive
demonstrations is eligible for an injunction, only politically
influentia! interests will be able to obtain specialized legislation.
CONCLUSION
The First Amendment has no value if it protects only
welcome speech. The Ninth Circuit has nevertheless upheld an
ordinance imposing an “audience veto" in a public forum. The
Petition for Writ of Certiorari should be granted.
Respectfully submitted,
Keith A. Fournier Jay Alan Sekulow
THE AMERICAN CENTER FOR (Counsel of Record)
LAW AND JUSTICE Walter M. Weber
1000 Regent University Dr. THE AMERICAN CENTER FOR
Virginia Beach, VA 23464 LAW AND JUSTICE
(804) 579-2489 1000 Thomas Jefferson St.,
N.W., Suite 304
Benjamin W. Bull Washington, DC 20007
THE AMERICAN CENTER FOR (202) 337-2273
LAW AND JUSTICE
11811 N. Tatum Blvd, #P184
Phoenix, AZ 85028
(602) 953-6100
Attorneys for Petitioners
22
March 4, 1996
APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 94-15495
KATHERINE SABELKO and NANCY BARTO,
Plaintiffs-Appellees ,
Vv.
THE Crry OF PHOENIX, SKIP RIMSZA,°2 in his official
capacity as Mayor of the City of Phoenix, and THELDA
WILLIAMS, FRANCES EMMA BARWOOD, CRAIG TRIBKEN, JOHN
NELSON, KATHY DUBS, SALOMON F. LEUA, and CALVIN C.
GOODE, in their official capacity as members of the City
of Phoenix City Council,
Defendants-Appellants.
OPINION
October 19, 1995
Before: SCHROEDER, BEEZER, and THOMPSON,
Circuit Judges.
“Skip Rimsza, current Mayor of Phoenix, is substituted for
former Mayor Paul Johnson.
2a
SCHROEDER, Circuit Judge:
In response to rising protest around abortion clinics in
Phoenix, Arizona, the City Council in November of 1993 passed
an ordinance regulating the conduct of demonstrators in public
areas within 100 feet of health care facilities. Known as the
Phoenix "bubble" ordinance, the law makes illegal a demonstrator’s
failure to honor a person's "clearly communicated request" to
withdraw to a distance of eight feet from the person if the
demonstrator is in a public area within 100 feet of a health care facility.’
'The ordinance provides:
ORDINANCE NO. G3705
AN ORDINANCE AMENDING CHAPTER 23,
ARTICLE 1 OF THE PHOENIX CITY CODE, BY
ADDING SECTION 23-10.1, RELATING TO
UNIMPEDED ACCESS TO HEALTH CARE
FACILITIES; AND DECLARING AN EMERGENCY.
WHEREAS, unimpeded access to health care services is
critically and uniquely important to the public health, safety and
welfare; and
WHEREAS, persons attempting to access health care
facilities are subject to harassing or intimidating activity tending to
impede their access to those facilities by demonstrators approaching
within extremely close proximity; and
WHEREAS, such activity near health care facilities creates
a "captive audience" situation where persons seeking services
cannot avoid the area outside the facilities, and their physical and
emotional conditions may make them especially vulnerable to the
(continued. ..)
3a
'(,. continued)
adverse physiological and emotional effects of such harassing or
intimidating activities directed at them from extremely close
proximity; and
WHEREAS, such activity in extremely close proximity
tends to undermine a person’s right to privacy and interfere with
a person’s right to seek legitimate health care treatment and
counseling; and
WHEREAS, this ordinance does not preclude all protesting,
picketing, demonstrating, leafleting or educational activities near a
health care facility but is a necessary time, place and manner
restriction intended to reconcile and protect the First Amendment
rights of demonstrators and the rights of persons using health care
facilities to be free from direct confrontation, hindrance,
harassment, intimidation and harm; and
WHEREAS, existing law does not adequately protect such
access to health care facilities; NOW THEREFORE,
BE IT ORDAINED by the Council of the City of Phoenix
as follows:
SECTION 1. Chapter 23, Article 1, Phoenix City Code,
is amended by adding section 23-10.1 to read:
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE
FACILITIES.
A. It is unlawful for any person, in the course of
demonstration activity within the access area of a health care
facility, to fail to withdraw upon a clearly communicated request
to do so to a distance of at least eight (8) feet away from any
person who has made the request.
B. For purposes of this section:
1. "Access area" means any portion of a public
street or other public place or any place open to the public
within one hundred (100) feet of an exterior wall or
entryway of a health care facility.
4a
Six days after Phoenix enacted the ordinance, plaintiffs
Katherine Sabelko and Nancy Barto filed suit in federal court
pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive
relief against the City on the ground that the ordinance violated
their First Amendment rights. The plaintiffs describe themselves
as antiabortion sidewalk counselors who distribute literature in front
of Phoenix clinics and attempt to engage others in peaceful
conversation about alternatives to abortion.
The district court granted the injunction and the city now
appeals. Appearing amici curiae in this action in support of the
City are Planned Parenthood of Central and Northern Arizona, Inc.
and the City of San Jose writing on behalf of 32 other California
cities. In support of the plaintiffs-appellees is amicus Arizona Civil
Liberties Union (AzCLU).
The District Court Decision
The district court’s preliminary injunction preventing
enforcement of the ordinance rested upon no disputed issues of
fact. The district court ruled as a matter of law that the ordinance
violates the First Amendment, and all issues on appeal to this court
are presented for our de novo review.
The district court ruled the ordinance unconstitutional on
four principal grounds which we summarize as follows:
a Because the ordinance regulates “protest,” but not
supportive speech, and because it gives private citizens the
Sa
authority to silence speech, the district court ruled that it was
viewpoint discriminatory.’
2. The court ruled the ordinance overbroad because,
in the district court’s view, it effectively bans handbilling within
the 100-foot area.
3, Ruling the ordinance vague, the district court found
insufficiently clear meaning in the phrases "clearly communicated
request" to withdraw and "demonstration activity."
4. Finally, the district court rejected any analogy
between the privacy interest infringed by demonstration activity
targeting a home, as recognized in Frisby v. Schultz, 487 U.S. 474
(1988), and that affected by activity targeting a health care facility.
The district court held that the principles applicable to free speech
in a public forum as enunciated in Perry Education Ass'n. v. Perry
Local Educators’ Ass'n., 460 U.S. 37, 45 (1983), control
demonstration activity outside health care facilities.
The Madsen Decision
The district court’s injunction was entered on February 11,
1994. The Supreme Court’s subsequent decision in Madsen v.
Women's Health Center, Inc., 114 S.Ct. 2516 (1994), guides our
review and controls our opinion today.
?The plain terms of the ordinance contradict the district court’s
assertion that it restricts only certain kinds of speech. The
ordinance does not limit its reach to "oral protest, education [and]
counseling;" it merely lists them among the activities it regulates
under the rubric of "demonstration activity," and it states explicitly
that "[{flor purposes of this section . . . demonstration activity . .
. is not limited to” these activities.
6a
In Madsen, the Supreme Court considered the validity
under the First Amendment of a Florida state court injunction
against named individual antiabortion protesters and persons acting
in concert with them. The Court upheld the establishment of a
36-foot “buffer zone" around an abortion clinic in Melbourne,
Florida. Within the buffer zone, the defendants were prohibited
from demonstration activity of virtually any kind. The Supreme
Court ruled that the injunction was content neutral despite the fact
that it targeted only abortion protesters.
We can find no basis for holding the Phoenix ordinance
less content neutral than the Florida injunction. That injunction
prohibited the defendants from "congregating, picketing, patrolling,
demonstrating or entering" within 36 feet of the cliniz. Quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), tive
Court held that the “principal inquiry in determining content
neutrality is whether the government has adopted a regulation of
speech ‘without reference to the content of the regulated speech.’
" Madsen 114 S.Ct. at 2523. The Florida injunction passed this
test, the Supreme Court said, because "none of the restrictions . . .
were directed to the contents of th[e] petitioner’s message.” /d.
The Phoenix ordinance, like the Florida injunction, makes no
reference to the content of the speech it purports to regulate. The
Supreme Court’s ruling in Madsen thus forecloses the plaintiffs’
contention that the Phoenix ordinance is viewpoint based.’
‘Plaintiffs’ contention that the ordinance improperly vests
discretion in private citizens to curtail speech is likewise
insupportable. The cases they cite are concerned only with
discretion vested in agents of the government. Like the Colorado
Court of Appeals, which recently considered an even stricter
ordinance, we know of no authority “that would extend this
doctrine to limit the right of a private citizen to determine whether
(continued...)
7a
In Madsen, the Court announced that an injunction is
subject to more rigorous scrutiny than is a generally applicable
ordinance. To survive appellate review, the injunction must burden
"no more speech than necessary to serve a significant government
interest." Madsen, 114 S.Ct. at 2525 (citing NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 916 (1982)). The Court explained
that the standard is more lenient in cases such as this where we
review an ordinance of general applicability. See Madsen 114
S.Ct. at 2524-25. In contrast to an injunction, a content neutral,
time, place and manner restriction in an ordinance survives First
Amendment scrutiny if it is "narrowly tailored to serve a significant
governmental interest, and leave[s] open ample alternative channels
of communication." Perry, 460 U.S. at 45 (citations omitted).
The dissent urges a more stringent standard for an ordinance than
an injunction. In Madsen, Justice Stevens propounded the same
view but the majority expressly rejected it. Madsen 114 S.Ct. at
2525. We are bound by the majority.
The Court held in Madsen that the injunction survived
scrutiny under the more rigorous standard because it burdened no
more speech than necessary to serve significant government
interests. The Court focused on several such interests that the
Phoenix ordinance likewise serves. These include a woman’s right
to abortion and other pregnancy-related treatment, see Roe v.
Wade, 410 U.S. 113 (1973), as well as the siate’s interest in public
safety and order, including street and sidewalk traffic control, see
Madsen, 114 S.Ct. at 2526. The Madsen Court agreed with the
*(...continued)
to permit others to confront [her] concerning medical .. .
treatment." Hill v. City of Lakewood, No. 94CA0856, 1995 WL
411983, *4 (Colo. App.) (upholding ordinance forbidding uninvited
approaches to within eight feet of a person less than 100 feet away
from entrance to a health care facility).
8a
Florida Supreme Court that "the state’s strong interest in residential
privacy, acknowledged in Frisby v. Schultz, 487 U.S. 474 (1988),
applied by analogy to medical privacy," Madsen 114 S.Ct. at 2526.
The Court approved the Florida court’s view that just as targeted
picketing of the home threatens the psychological well-being of a
“captive” resident, targeted picketing of a hospital or clinic
threatens the physical and psychological well-being of a patient held
“captive” by medical circumstance. See id. (citing Operation
Rescue v. Women’s Health Center, Inc., 626 So.2d 664, 673 (Fla.
1993)).
The Supreme Court’s decision in Madsen thus undermines
the pillars supporting the district court’s ruling that the ordinance
is unconstitutional. Under the standard announced in Madsen, the
ordinance is not viewpoint discriminatory, but is content neutral.
It is a time, place and manner restriction that serves several
significant state interests. Under Madsen, it is not violative of the
First Amendment if it is narrowly tailored to serve those interests
and leaves open ample alternative means of communication. See
Perry, 460 U.S. at 45. The provisions of the ordinance challenged
in this case are no more vague than those of the injunction in
Madsen. Finally, the Supreme Court in Madsen expressly
recognized that persons approaching a health care facility represent
a "captive audience,” thus rejecting the position of the district court
in this case that a public area adjacent to a health care facility must
be considered, for all purposes, an open forum.
Appellees’ principal contention on appeal is that the
ordinance is overbroad and not sufficiently narrowly tailored.
They contend that by permitting “any person" to ward off a
demonstrator, the ordinance curtails too much speech. They argue
that to survive scrutiny, the ordinance must permit only patients
seeking health care services to terminate unwanted confrontations
and face-to-face communication.
4
f
4
.
ete gPARPE A ace aN ee LAA ct a cen PC EY ER Nn I RENN aE IN
9a
The problem the city faces is that such narrowing would
compromise the very privacy interests the ordinance was meant to
protect. The approach appellees suggest would require a woman
to identify herself as a patient seeking pregnancy-related services
in order to terminate an unwanted confrontation. Moreover, by
preventing the parent or partner of a young or sick patient from
invoking protection on her behalf, the narrowing that appellees
advocate would tend to leave exposed to the most persistent
demonstrators those least capable of declining to receive their
message.
The appellees, amicus AzCLU and the dissent express
concern about the possibility that under this ordinance, escorts or
others who may have no relationship whatever to the patients may
create a zone around a patient even larger than the eight feet
contemplated by the ordinance. They suggest, for example, that an
escort might repeatedly invoke the "bubble" while advancing
toward a counselor beyond eight feet from the patient. The parties
provide little basis for assessing how likely such a scenario may be.
We nevertheless observe that as the Jistance between the escort and
the patient increases, so does the ability of other counselors to
approach the patient. Appellees offer no alternative provision that
would adequately protect the city’s concerns and avoid the
theoretical possibility that escorts might inflate the “bubble” zone
the city contemplated.
In support of their overbreadth position, appellees and our
dissenting colleague point us to another portion of the Madsen
disposition which they incorrectly assert is dispositive of the issues
before us. The Court in Madsen struck down as overbroad a
provision of the injunction that drew a line of 300 feet from the
facility and barred “all uninvited approaches of persons seeking the
services of the clinic regardless of how peaceful the contact may
be" within that area. Madsen, 114 S.Ct. at 2529. This injunctive
ban the Supreme Court termed a “consent” requirement. The Court
10a
held it burdened more speech than necessary to prevent intimidation
and ensure access.
The ordinance in question here has no such bar against
uninvited approaches. It permits any approach to any individual
until the individual affirmatively requests a disengagement.
Moreover, there is no limitation on approaches beyond a 100-foot
line, whereas the Madsen line was 300 feet. Finally, once the
“pubble" is invoked, communication is not prohibited or
interrupted, but simply distanced to eight feet. For these reasons
we hold that the ordinance is narrowly tailored to serve significant
interests. For similar reasons, we conclude that it also allows
ample alternative means of communication. Contrary to the claims
of appellees and the dissent, there is no bar to signs, placards, or
pictures. Counselors can handbill and approach anyone outside the
100-foot barrier, and anyone within the 100 feet until and unless
that person objects. The First Amendment protects the right of a
prospective recipient of a handbill to refuse the communication as
well as the right of the prospective communicant to offer it.
Martin v. Struthers, 319 U.S. 141 (1943); Schneider v. State, 308
U.S. 147 (1939).
The JUDGMENT OF THE DiSTRICT COURT IS
REVERSED AND THE MATTER REMANDED WITH
INSTRUCTIONS TO VACATE THE INJUNCTION.
BEEZER, Circuit Judge, dissenting.
By voice, pamphlet or placard some citizens of the United
States are actively engaged in a vigorous debate on the sidewalks,
streets and other public places adjacent to health care facilities
lla
located in cities and towns across the country. The debate is also
heard in the nation’s capitol.'
Unlike the Senators who are given a privilege on the floor
of the Senate, the citizen demonstrators in this case claim a right
to free speech protected by the First Amendment. So it is that I
address the question whether speech incident to demonstration
‘Protected by the privilege of the Speech or Debate Clause,
U.S. Const. art. I, § 6, the remarks of several Senators are
reported in the Congressional Record, 141 Cong.Rec. $8862-63
(daily ed. June 22, 1995).
Mr. SMITH.
- *” ~
In illustration No. 4, the abortionist takes a pair of scissors
and inserts the scissors into the back of the skull and then opens the
scissors up to make a gap in the back of tue skull in order to insert
a catheter to literally suck the brains from the back of that child’s
head.
That is what happens in the so-called partial-birth abortion.
* ~ ~
Ms. MOSELEY-BRAUN.
« *” .
The extreme agenda, I think, is pretty evident. I have
never seen anything as horrific, as horrendous, as awful, as ugly
and graphic as the posters and the doll figure I saw on the floor a
few minutes ago. It is outrageous to bring something like that on
the floor of the U.S. Senate to make whatever point. Whether you
are for or against choice, to bring that kind of graphic depiction of
ugliness on this floor, I think, only serves the purpose of inflaming
people around an issue that really inflames and divides the
American people, and that does go to the heart of the opposition’s
extreme agenda here.
\2a
activity in the vicinity of health care facilities may be proscribed by
city ordinance.
The City of Phoenix enacted Ordinance No. G3705
requiring any person engaged in demonstration activity within 100
feet of a health care facility to withdraw at least eight feet away
from any person who requests it. Because I believe the ordinance
is not narrowly tailored and overly burdens protected speech, |
respectfully dissent.
In 1993, due to concerns about harassment outside health
care facilities, the City of Phoenix enacted an ordinance limiting
"demonstration activity” near such clinics. The ordinance in effect
allowed individuals within 100 feet of all designated facilities to
create a “bubble” around themselves.. The ordinance requires all
persons engaging in "demonstration activity" to withdraw a distance
of eight feet when requested to do so. Specifically, the ordinance
provides:
ORDINANCE NO. G3705
AN ORDINANCE AMENDING CHAPTER 23,
ARTICLE | OF THE PHOENIX CITY CODE,
BY ADDING SECTION 23-10.1, RELATING TO
UNIMPEDED ACCESS TO HEALTH CARE
FACILITIES; AND DECLARING AN EMERGENCY.
WHEREAS, unimpeded access to health care
services is critically and uniquely important to the public
health, safety and welfare; and
WHEREAS, persons attempting to access health
care facilities are subject to harassing or intimidating
activity tending to impede their access to those facilities by
——
Re Pe ee ee ee ee ee ee Te ee
13a
demonstrators approaching within extremely close
proximity; and
WHEREAS, such activity near health care facilities
creates a “captive audience” situation where persons
seeking services cannot avoid the area outside the facilities,
and their physical and emotional conditions may make them
especially vulnerable to the adverse physiological and
emotional effects of such harassing or intimidating
activities directed at them from extremely close proximity;
and
WHEREAS, such activity in extremely close
proximity tends to undermine a person’s right to privacy
and interference with a person’s right to seek legitimate
health care treatment and counseling; and
WHEREAS, this ordinance does not preclude all
protesting, picketing, demonstrating, leafleting [sic] or
educational activities near a health care facility but is a
necessary time, place and manner restriction intended to
reconcile and protect the First .smendment rights of
demonstrators and the rights of persons using health care
facilities to be free from direct confrontation, hindrance,
harassment, intimidation and harm; and
WHEREAS, existing law does not adequately
protect such access to health care facilities; NOW
THEREFORE,
BE IT ORDAINED by the Council of the City of
Phoenix as follows:
SECTION 1. Chapter 23, Article 1, Phoenix City
Code, is amended by adding section 23-10.1 to read:
4a
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH
CARE FACILITIES.
A.
It is unlawful for any person, in the course
of demonstration activity within the access area of a health
care facility, to fail to withdraw upon a clearly
communicated request to do so to a distance of at least
eight (8) feet away from any person who has made the
request.
Cc.
For purposes of this section:
i “Access area” means any portion
of a public street or other public place or
any place open to the public within one
hundred (100) feet of an exterior wall or
entryway of a health care facility.
2. "Demonstration activity” includes
but is not limited to protesting, picketing,
distributing literature, attempting to impede
access, or engaging in oral protest,
education or counseling activities.
3. "Health care facility” means any
hospital, clinic, office, building or other
place used to provide medical,
psychological, nursing or other health care
services, including family planning
counseling and pregnancy- related services.
For purposes of this section, distance shall
be measured from that part of the closest demonstrator’s
body that is nearest to the closest part of the requesting
person’s body. The term “body” includes any natural or
15a
artificial extension of a person’s body including but not
limited to an outstretched arm or a hand-held sign.
SECTION 2. WHEREAS, the immediate operation
of the provisions of this ordinance is necessary for the
preservation of the public peace, health and safety, an
EMERGENCY is hereby declared to exist, and this
ordinance shall be in full force and effect from and after its
passage by the Council as required by the City Charter and
is hereby exempted from the referendum clause of said
Charter.
PASSED by the Council of the City of Phoenix this
17th day of November, 1993.
Katherine Sabelko and Nancy Barto (collectively "Sabelko")
are pro-life leafletters and “sidewalk counselors" who engage in
activity outside abortion clinics in Phoenix. As sidewalk
counselors they distribute literature and attempt to orally
communicate the alternatives to abortion. After the passage of the
ordinance, Sabelko curtailed her activities and speech because of
fear of prosecution under the ordinance. Viewing the ordinance as
an unconstitutional infringement of speech, Sabelko filed this action
pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive
relief. The district court granted the injunction and declared the
ordinance unconstitutional. The City of Phoenix timely appealed.
The first step in any First Amendment inquiry is to
determine whether the ordinance is content or viewpoint neutral.
I agree with the court’s opinion that the ordinance is content-neutral
and I will not repeat that analysis. A content-neutral restriction on
speech must be " ‘narrowly tailored to serve a significant
governmental interest, and ... leave open ample alternative
l6a
channels for communication of the information.’ "| Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Community for Creative Non- Violence, 468 U.S. 288, 293 (1984)).
Narrow tailoring requires that the means chosen do not "burden
substantially more speech than is necessary to further the
government’s legitimate interests." /d. at 799. More precisely,
"[a] statute is narrowly tailored if it targets and eliminates no more
than the exact source of the ‘evil’ it sees to remedy." Frisby v.
Schultz, 487 U.S. 474, 485 (1987).
It is undeniable that the City of Phoenix’s interest in
protecting access to health care facilities is substantial. The
government "has a strong interest in protecting a woman’s freedom
to scek lawful medical or counseling services in connection with
her pregnancy." Madsen v. Women’s Health Center, Inc., 114
S.Ct. 2516, 2526 (1994). On its face the ordinance appropriately
seeks to protect the users of the facilities from “harassing or
intimidating activity tending to impede . . . access to those
facilities," and the "adverse physiological and emotional effects" of
the harassment. Although the City of Phoenix’s interests are
sufficiently substantial to support an appropriately tailored
ordinance, Ordinance No. G3705 lacks such tailoring.
It is a touchstone of First Amendment jurisprudence that
"[g]overnment may not regulate expression in such a manner that
a substantial portion of the burden on speech does not serve to
advance its goals." Ward, 491 U.S. at 799. The ordinance’s
consent provision does just that. Anybody in the area around the
facility, whether they be a patient or otherwise, are free to
effectively silence any speech they find objectionable by invoking
the “bubble.” The aims of the ordinance -- to allow access,
eliminate harassment and prevent intimidating activity -- are served.
But in so doing, the peaceful communicator expressing a protected
viewpoint is also chilled.
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17a
Especially disturbing is the fact that the eight-foot bubble
would prevent leafletting or handbilling. Once the bubble is
invoked, it would be nearly impossible for any written
communication to be distributed at any time. For example, an
individual could immediately invoke the “bubble” once in the
100-foot buffer zone and prevent any handbilling on the sidewalks
or streets that provide public access to the health care facility.
Patient escorts acting in support of the facility could invoke the
"bubble" preventing access to patients who may otherwise have at
least glanced at the written materials before themselves invoking
the “bubble.” Although the First Amendment does not guarantee
a willing listener or recipient, it does protect the “opportunity to
win their attention." Kovacs v. Cooper, 336 U.S. 77, 87 (1948).
Strategic use of the "bubbie" could eviscerate that opportunity.
Even more disturbing, the ordinance allows any person to
invoke the “bubble.” A number of people acting in concert can
create a buffer around the facility exceeding eight feet and that
would effectively prevent all peaceful communication. The entire
100-foot buffer zone could be turned into a no speech zone if a
sufficient number of escorts occupied the zone and invoked the
"pubble.". The Supreme Court teaches that "[p]recision of
regulation must be the touchstone" of any restriction on speech.
The ordinance’s broad sweep goes too far. NAACP v. Button, 371
U.S. 415, 438 (1963) (citations omitted).
The City of San Jose in its amicus curiae brief focuses our
attention on the threatening and harassing activity that the ordinance
is designed to prevent. Harassment, threats and physical
obstruction of clinics has long been subject to injunctive relief and
Congress has now made such behavior criminal. Congress,
addressing such concerns, passed the Freedom of Access to Clinic
Entrances Act of 1994 (hereinafter "FACE"), 18 U.S.C. § 248.
The intentional use of force or physical obstruction to block clinic
entrances is a crime. At least one circuit has concluded that FACE
18a
does not impede peaceful protesting traditionally protected by the
First Amendment. See American Life League v. Reno, 47 F.3d 642
(4th Cir.) (upholding FACE as a content-neutral, narrowly tailored
restriction on protected speech), cert. denied, 63 U.S.L.W. 3834
(U.S. Oct. 2, 1995) (No. 94-1867). Unlike FACE, the Phoenix
ordinance broadly sweeps at peaceful communication that lies at the
core of the First Amendment.
I end my discussion with Madsen. In Madsen, the Supreme
Court considered an injunction imposed by a Florida court to
prevent protesters from impeding access to a clinic. Concluding
that an injunction is subject to a more stringent level of scrutiny
then a content-neutral, generally applicable statute, the Court
examined “each contested provision of the injunction to see if it
burdens more speech than necessary to accomplish iis goal." 114
S.Ct. at 2526. The injunction contained a variety of provisions
restricting expressive activity by protesters outside the clinic. The
City of Phoenix relies heavily on Madsen’s conclusion that a
36-foot buffer zone established in the injunction burdened no more
speech than necessary. The City of Phoenix argues that because
the more burdensome 36-foot buffer zone was upheld under an
even more stringent standard, Ordinance No. G3705 does not
improperly infringe on speech. What the City fails to acknowledge
is that the buffer zone was imposed in Madsen after the protesters
continued to ignore court orders and impeded access to the clinic.
Id. at 2524. After repeated failures to protect the entrance to the
clinic, the state court was left with no choice but to enforce a
broader injunction to protect the government interests at stake.
Also included in the Madsen injunction was a provision that
prohibited protesters from “approaching any person seeking the
services of the Clinic unless such person indicates a desire to
19a
communicate." Jd. at 2516. Despite recognizing that protecting
patients from being "stalked" or "shadowed" was a legiimate goal,
the Court had little difficulty invalidating the provision, concluding
that "[t}he ‘consent’ requirement alone invalidates this provision;
it burdens more speech than is necessary to prevent intimidation
and to ensure access to the clinic." Jd. at 2529. Madsen’s consent
provision is functionally indistinguishable from the one at issue
here. In Madsen, all uninvited approaches were barred; here, all
unwanted approaches are barred. The effect is the same; more
speech than necessary is effectively silenced.
As the Court has often stated, and recently repeated in
Madsen, " ‘[a]s a general matter, we have indicated that in public
debate our own citizens must tolerate insulting, and even
outrageous, speech in order to provide adequate breathing space to
the freedoms protected by the First Amendment.’ " Madsen, 114
S.Ct. at 2529 (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)).
I believe that Phoenix Ordinance No. G3705 impermissibly
encroaches on First Amendment freedoms and its enforcement
should be enjoined.
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APPENDIX B
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 94-15495
KATHERINE SABELKO and NANCY BARTO,
Plaintiffs-Appellees ,
v.
THE Crry OF PHOENIX, SKIP RIMSZA," in his official
capacity as Mayor of the City of Phoenix, and THELDA
WILLIAMS, FRANCES EMMA BARWOOD, CRAIG TRIBKEN, JOHN
NELSON, KATHY DuBS, SALOMON F. LEUA, and CALVIN C.
GOODE, in their official capacity as members of the City
of Phoenix City Council,
Defendants-Appellants.
December 8, 1995
“Skip Rimsza, current Mayor of Phoenix, is substituted for
former Mayor Paul Johnson.
ee
2la
Before: SCHROEDER, BEEZER, and THOMPSON,
Circuit Judges.
A majority of the panel as constituted above has voted to
deny the petition for rehearing and to reject the suggestion for
rehearing en banc. Judge Beezer would grant the petition for
rehearing and accept the suggestion for rehearing en banc.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a vote
on the suggestion for rehearing en banc. Fed. R. App. P. 35.
The petition for rehearing is denied and the suggestion for
rehearing en banc is rejected.
22a
APPENDIX C
IN THE UNITED STATES DISTRICi COURT
FOR THE DISTRICT OF ARIZONA
No. CIV 93-2229-PHX-SMM
KATHERINE SABELKO and NANCY BARTO,
Plaintiffs ,
THE City OF PHOENIX, ef al.,
Defendants.
MEMORANDUM OF DECISION AND ORDER
February 11, 1994
INTRODUCTION
On November 17, 1993 Phoenix City Ordinance No.
G3705 was enacted and made immediately effective. The
Ordinance, codified as Phoenix City Code § 23-10.1, provides:
WHEREAS unimpeded access to health care
services is critically and uniquely important to the public
health, safety, and welfare; and
23a
WHEREAS persons attempting to access health
care facilities are subject to harassing or intimidating
activity tending to impede their access to those facilities by
demonstrators approaching within extremely close
proximity; and
WHEREAS such activity near health care facilities
creates a "captive audience” situation where persons
seeking services cannot avoid the area outside the facilities,
and their physical and emotional conditions may make them
especially vulnerable to the adverse physiological and
emotional effects of such harassing or intimidating
activities directed at them from extremely close proximity;
and
WHEREAS such activity in extremely ciose
proximity tends to undermine a person’s right to privacy
and interfere with a person’s right to seek legitimate health
care treatment and counseling; and
WHEREAS this ordinance does not preclude all
protesting, picketing, demonstrating, leafletting, or
educational activities near a health care facility but is a
necessary time, place, and manner restriction intended to
reconcile and protect the First Amendment rights of
demonstrators and the rights of persons using health care
facilities to be free from direct confrontation, hindrance,
harassment, intimidation, and harm; and
WHEREAS existing law does not adequately
protect such access to health care facilities; NOW
THEREFORE,
BE IT ORDAINED by the Council of the City of
Phoenix as follows:
24a
SECTION 1. Chapter 23, Article 1, Phoenix City
Code is amended by adding section 23-10.1 to read:
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH
CARE FACILITIES
A.
It is unlawful for any person, in the course
of demonstration activity within the access
area of a health care facility, to fail to
withdraw upon a clearly communicated
request to do so to a distance of at least
eight (8) feet away from any person who
has made the request.
For the purposes of this section:
"Access area" means any portion
of a public street or other public
place or any place open to the
public within one hundred (100)
feet of an exterior wall or
entryway of a health care facility.
"Demonstration activity” includes
but is not limited to protesting,
picketing, distributing literature,
attempting to impede access, or
engaging in oral _ protest,
education, or counseling activities.
“Health care facility” means any
hospital, clinic, office, building or
other place used to provide
medical, psychological, nursing,
or other health care services,
25a
including family planning
counseling and pregnancy-related
services.
4. For purposes of this section,
distance shall be measured from
that part of the closest
demonstrator’s body that is nearest
to the closest part of the requesting
person’s body. The term “body”
includes any natural or artificial
extension of a person’s body
including an outstretched arm or
hand-held sign.
SECTION 2. WHEREAS the immediate operation
of the provisions of this ordinance is necessary for the
preservation of the public peace, health, and safety, an
EMERGENCY is hereby declared to exist, and this
ordinance shall be in full force and effect from and after its
passage by the Council as required by the City Charter and
is hereby exempted from the referendum clause of said
Charter.
On November 23, 1993, Plaintiffs Katherine Sabelko ad
Nancy Barto filed CIV 93-2229-PHX-SMM. The named
Defendants are the City of Phoenix, the Mayor of Phoenix, and all
members of the Phoenix City Council. The Complaint seeks
declaratory and injunctive relief from Phoenix City Code § 23-10. 1
{hereinafter, “the Ordinance"] which, according to Plaintiffs,
"restricts the exercise of pristine First Amendment rights in
traditional public fora.”
In their Complaint, Plaintiffs challenge the Ordinance as:
(1) Count One: a violation of the right to freedom of speech under
eee ene. ee ak
te ere
26a
the First Amendment to the U.S. Constitution; (2) Count Two: a
violation of the right to freedom of the press under the First
Amendment to the U.S. Constitution; (3) Count Thrce: a violation
of the right to peaceable assembly under the First Amendnient to
the U.S. Constitution; (4) a violation of ine Due Process Clause of
the Fourteenth Amendment to the U.S. Constitution; (5) Count
Five: a violation of the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution; and (6) Counts Six through
Nine: violations of applicable parallel sections of the Arizona State
Constitution.
Plaintiffs applied for a Temporary Restraining Order
("TRO") pursuant to Federal Rule of Civil Procedure 65. The
Court granted the TRO, thereby temporarily restraining and
enjoining the Defendants and any and all persons acting in concert
with them, including the Phoenix Police Department, from
enforcing the Ordinance. Pursuant to the stipulation of the parties,
the TRO has been continued pending a determination by the Court
on Plaintiffs’ application for a preliminary injunction.
On December 8, 1993, Planned Parenthood of Central and
Northern Arizona, Inc. [hereinafter "Petitioner" ] filed (1) a Motion
for Leave to Intervene in the above captioned matter, and (2) an ex
parte Motion for Order Expediting Hearing on its Motion to
Intervene. That same day, the Court granted the ex parte Motion
for Expedited Hearing and set oral argument on the Motion to
Intervene for 1:00 p.m. on Monday, December 13, 1993. The
Court denied the Motion to Intervene but granted Petitioner
permission to file a brief, amicus curiae.
The Court has reviewed the briefs submitted by the parties
and the amicus. Both an evidentiary hearing and oral argument on
the application for preliminary injunction were held on Friday,
December 17, 1993. After careful consideration of relevant
precedent, the evidence submitted, and the arguments presented,
27a
the Court herein rules on Plaintiffs’ application for a preliminary
injunction.
SCOPE OF FIRST AMENDMENT JUDICIAL REVIEW
"[T]he First Amendment reflects a ‘profound national
commitment’ to the principle that debate on public issues should be
uninhibited, robust, and wide-open . . . and [the Supreme Court]
ha[s}] consistently commented on the central importance of
protecting speech on public issues." Boos v. Barry, 485 U.S. 312,
318 (1988) (citations omitted).
Judicially defining the parameters of free speech is difficult.
The United States Supreme Court and the lower federal courts have
wrestled with this issue since the adoption of the First Amendment.
The analysis is even more difficult when, as in this case, First
Amendment rights clash with other competing constitutional rights.
While the case law is replete with scholarly analyses of the issue
concerning conflicting constitutional rights, the courts that attempt
to synthesize and harmonize the conflicting viewpoints expressed
in literally hundreds of pages of precedent are faced with a
formidable task. More importantly, though, the citizens who must
apply the holdings of these cases to the exercise of their rights in
everyday life must be overwhelmed by the legal resolution of these
conflicts that sometimes seem to provide conflicting practical
guidance.
At this juncture, it should be noted that on January 21,
1994, the Supreme Court granted certiorari in Madsen v. Women’s
Health Center, Inc., 1193 WL 514541, 62 U.S.L.W. 341 (Jan. 21,
1994). By granting this review, the Supreme Court will hear
arguments stemming from the Florida Supreme Court's decision in
Operation Rescue v. Women’s Health Center, Inc., 626 So.2d 664
(Fla. 1993), which upheld the provisions of an injunction that the
eet hn cathe | te Ma te re Nr Ce a hace ROD DiC A Yay A Maa
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28a
Eleventh Circuit Court of Appeals declared unconstitutional in
Cheffer v. McGregor, 6 F.3d 705 (1ith Cir. 1993).' While this
Court anticipates the decision in Madsen will address some of the
issues raised in this case, it is important to note that the procedural
development of the cases is quite different. This case involves an
ordinance of general applicability which imposes criminal penalties
for violations. In contrast, the Florida case involves the provisions
of a court-ordered injunction with limited applicability to the parties
in the case, the provisions of which are only civilly enforceable.’
Thus, the Court issues this opinion rather staying the case pending
the decision in Madsen.
‘In Cheffer, an individual brought a judicial action seeking to
preliminarily enjoin enforcement of a state court injunction that
created a “buffer zone” which restricted anti-abortion speech in the
vicinity of an abortion clinic. The district court refused to grant
the preliminary injunction. On appeal, the Eleventh Circuit vacated
the district court’s order denying the preliminary injunction and
remanded the case for further consideration not inconsistent with
the constitutional analysis contained in its opinion, indicating the
injunction should be granted.
*Some of the difficulty the Court experienced in grappling with
the issues presented by this case stems from the fact that several of
the cases upon which the parties rely are, like Cheffer, based on the
interpretation of court-ordered injunctions rather than
constitutionally based challenges to provisions of criminal or
quasi-criminal law. The distinction is not merely one of semantics,
but rather, as discussed later in the Court’s opinion, is one of
consequence.
29a
ft ’
STANDARD OF REVIEW
The purpose of a preliminary injunction is to preserve the
status quo among the parties pending the outcome of the action.
Regents of the University of California v. A.B.C., Inc., 747 F.2d
511, 515 (9th Cir. 1974). Under the Ninth Circuit’s traditional test
for determining whether to issue a preliminary injunction, the
moving party must demonstrate the following:
1. The moving party will suffer irreparable injury if
the injunctive relief is not granted;
2. The moving party has a substantial likelihood of
succeeding on the merits;
3. An injunction will not harm the non-moving party
more than it helps the moving party; and
4. Granting injunctive relief is in the public interest.
City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir.
1985); Martin v. Int’l Olympic Comm., 740 F.2d 670, 674-75 (9th
Cir. 1984).
In recent years, an alternative test has been articulated.
Under the alternative test, the moving party must demonstrate
either:
1. Probable success on the merits and the possibility
of irreparable harm; or
2. The lawsuit raises serious questions and the
balance of hardship tips sharply in the movant’s
favor.
aes Aes:
30a
Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991);
City of Tenakee Springs, 778 F.2d at 1407; Martin, 740 F.2d at
675; Wilson v. Watt, 703 F.2d 395, 399 (9th Cir. 1983); Beltran
v. Meyers, 677 F.2d 1317, 1320 (9th Cir. 1982).
DISCUSSION
I. IRREPARABLE HARM
"It is undisputed that the loss of First Amendment freedoms
for even minimal periods of time unquestionably constitutes
irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
Thus, the irreparable harm part of the preliminary injunction test
is satisfied and tips in favor of the Plaintiffs. See also Memphis
Comm. School Dist. v. Stachura, 477 U.S. 299 (1986) (holding
monetary recovery cannot compensate for injury to intangible rights
guaranteed by the Constitution).
ll. LIKELIHOOD OF SUCCESS ON THE MERITS
A. First Amendment Rights Are Clearly Implicated
Plaintiffs declare that the "sidewalk counseling" in which
they engage consists of "efforts to educate, counsel, persuade, or
inform passer[s]by about abortion and abortion alternatives by
means of verbal and written speech. . . .". Sabelko Declaration at
4 7; Barto Declaration at ¢ 6. There is no question that such
conduct implicates First Amendment rights. See, e.g., City of
Houston v. Hill, 482 U.S. 451 (1987) (oral protest rests at the very
heart of the right to free speech); United States v. Grace, 461 U.S.
171 (1983) (distribution of literature via leafletting is a form speech
which is an “expressive activity protected by the First
Amendment”).
3la
Amicus Planned Parenthood argues that First Amendment
rights are not the central issue in the case. Instead, Amicus asserts
that whatever impact the Ordinance may have on First Amendment
rights is secondary and incidental to the fact that the Ordinance
permissibly regulates conduct. As such, the Ordinance should not
be reviewed under the traditional time, place, and manner
restriction on free speech test, but rather should be reviewed under
the regulation of conduct test as set forth in United States v.
O’Brien, 391 U.S. 367, 377 (1968). The Court disagrees with
Amicus’ characterization of this issue for several reasons.
First, the scope of the holding in O’Brien case as originally
set forth in 1968 has been narrowed by subsequent cases. See,
e.g., Church of Scientology Flag Serv. Org., Inc. v. City of
Clearwater, 2 F.3d 1514 (11th Cir. 1993); Abney v. United States,
616 A.2d 856 (D.C. 1992). Moreover, the Supreme Court's
decisions regarding expressive conduct as speech in Texas v.
Johnson, 491 U.S. 397, 414 (1990) (holding flag burning to be
expressive speech protected by the First Amendment), and United
States v. Eichman, 496 U.S. 310, 319 (1990) (holding same as
Texas v. Johnson), further limit O’Brien ’s applicability.
Second, in Ward v. Rock Against Racism, 491 U.S. 781
(1989), the Supreme Court has made clear that the O’Brien test "is
little, if any, different from the standard applied to time, place,
and/or manner restrictions." Ward, 491 U.S. at 798.
Finally, Defendants conceded in their Response in
Opposition to the Application for Preliminary Injunction and again
at oral argument that they cannot argue that the Ordinance regulates
conduct since it restricts the ability to distribute leafiets which has
repeatedly been held to be tantamount to speech. See, e.g., United
States v. Grace, 461 U.S. 171 (1983). The very face of the
Ordinance in question in this case claims its legitimacy as a “time,
se MS nae Ws
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32a
place, and manner restriction." Thus, the Ordinance must be
reviewed under the time, place, and manner test.
B. he Public Forum is Clearly Implicated
The degree of judicial scrutiny of the government
regulation frequently turns on the nature of the place being
regulated. The fora in which Plaintiffs exercise their First
Amendment rights include public streets and public sidewalks.
These streets and sidewalks are often within 100 feet of the
entrances to medical facilities, the area regulated by the Ordinance
in question n the present case. These areas constitute the
"quintessential" public fora for free speech which “have been
immemorially held in trust for the use of the public, and, time out
of mind, have been used for purposes of assembly, communication
of thoughts between citizens, and discussion of public questions."
Id. (quoting Hague v. Committee for Indus. Org., 307 U.S. 496
(1939)); see also Frisby v. Schultz, 487 U.S. 474, 480 (1988)
(quoting Hague).
All of the parties agree that the communications in which
Plaintiffs wish to engage are protected by the First Amendment via
the Fourteenth Amendment. See Plaintiffs’ Brief at 10;
Defendants’ Brief at 3; Gitlow v. New York, 268 U.S. 652 (1925)
(holding the Fourteenth Amendment Due Process Clause protects
freedom of expression against state infringement). With all parties
in agreement that the Ordinance seeks to regulate activity protected
by the First Amendment in a public forum, the issue is whether the
Ordinance does so within the limits prescribed by the Constitution.
33a
C. Permissible Restrict )
First Amendment Generally
There is no doubt that the First Amendment right to free
speech does not grant an unfettered right to all types of speech.
See, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscene
speech); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
(fighting words). What is clear, though, is that “above all else the
First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or
its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92
(1972).
The exercise of First Amendment rights in the public forum
may be limited by regulations that are valid time, place, and
manner restrictions. Frisby v. Schultz, 487 U.S. 474, 480 (1988).
The Defendants contend that the Ordinance in this case meets the
"time, place, and manner restriction" test. For a time, place, and
manner restriction to withstand constitutional scrutiny, the
restrictions must:
l. be content neutral;
2 be narrowly tailored to serve a_ significant
governmental interest; and
3. leave open ample alternative channels of
communication.
Frisby, 487 U.S. at 481. The appropriate standard under which
this three-prong test is applied to review the propriety of a time,
place, and manner restriction is strict scrutiny. United States v.
Kokinda, 497 U.S. 720, 726 (1990). Applying this test, Phoenix
City Ordinance No. G3705 does not meet constitutional standards.
eee a
34a
D. Content Neutrality
In the context of the traditional public forum, the
distinction between a content-based regulation and a content neutral
time, place, and manner regulation is a crucial one. Any law
which regulates the time, place, and manner of protected speech
must not be based on the content of the message. E.g. Forsyth
County v. Nationalist Movement, 112 S.Ct. 2395 (1992).
Plaintiffs claim the Ordinance in question is not content
neutral because is applies to the category of speech termed
“demonstration activity,” defined in subsection (1)(B)(2) of the
Ordinance as including protesting, picketing, distributing literature,
or engaging in oral protest, education, or counseling activities.
While the Ordinance seemingly applies to all non-oral protesting
such as picketing or distributing literature, it applies only to those
spoken exercises of the right to freedom of speech which
constitutes “oral protest, education, or counseling.” The
Defendants argue the Ordinance makes no distinctions regarding the
content of communication and, ipso facto, is thus content neutral.
In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the
Supreme Court stated that "the principle inquiry in determining
content neutrality . . . is whether the government has adopted a
regulation of speech because of disagreement with the message it
conveys.” /d. at 789.
The evidence submitted by the parties regarding the
legislative history of the Ordinance demonstrates, without
_ qualification, that the Ordinance was enacted in direct response to
“anti-abortion” speech outside medical clinics. See Transcript of
Discussion on Item 4, Phoenix City Council Policy Session on
November 16, 1993; Transcript of Discussion on Item 28, Phoenix
City Council Meeting on November 17, 1993.
35a
In Portland Feminist Women’s Health Center v. Advocates
for Life, Inc., 859 F.2d 681 (9th Cir. 1988) [hereinafter
Portland"), an injunction against "demonstrating or distributing
literature . . .; shouting, screaming, chanting, or yelling" by
anti-abortion organizations and those acting in concert was deemed
to be both content-neutral and a reasonable time, place, and manner
restriction on speech. /d. at 686. The court found the preliminary
injunction was not a content-based restriction of expression because
it did not refer to specific viewpoints that advocates raised at
demonstrations. Rather, the injunction focused on the location and
manner of expression, protecting the clinic from loudness and
physical intimidation, not from content of speech.’
Unlike the injunction in Portland, the Ordinance in question
in this case specifically targets “protest” communications. The
very fact that protest communications are targeted by the Ordinance
indicates that the law will turn on either the content of the speech
or the viewpoint expressed. If the speaker "protests," the speech
is prohibited by the Ordinance. On the other hand, if the speaker
“supports,” the speech may or may not be violative of the
Ordinance. Thus, the Ordinance imposes criminal liability
depending on the content and viewpoint of speech. Viewpoint
discrimination is unconstitutional. R.A.V. v. City of St. Paul,
Minn., 112 S.Ct. 2538 (1992).*
*The Court recognizes that the Eleventh Circuit’s decision in
Cheffer differs from this reasoning. Cheffer, 6 t-.3d at 710 n. 10.
“Tie Court notes that (1) the decision in Portland predated the
Supreme Court’s pronouncement regarding content neutrality in
R.A.V. v. City of St. Paul; (2) Portland reviewed the terms of an
injunction under the standards annunciated in Rule 65(d). a
different standard than is applicable in this case, as the Court is
(continued...)
36a
Defendants assert this is an improper characterization of the
Ordinance. They claim the Ordinance does not "target" any type
of speech, but rather would provide for criminal liability of any
speaker who failed to withdraw to the eight-foot minimum distance,
even if the speaker is demonstrating "support." The Court finds
this argument unpersuasive since the invocation of the “bubble
zone" will likely depend upon whether the listener agrees with or
disagrees with the content of the speaker’s communication.
"Listeners’ reaction to speech is not a content neutral basis for
regulation." Forsyth, 112 S.Ct. at 2403.
However, even if, arguendo, the Ordinance were deemed
to be content neutral, the Ordinance still fails as a time, place, and
manner restriction because it is not narrowly tailored to achieve the
governmental interest specified.
E. Narrowly Tailored
The First Amendment requires that a regulation on free
speech be narrow and precise. City of Houston v. Hill, 482 U.S.
451, 464-67 (1987). A law is "narrowly tailored if it targets and
eliminates no more than the exact source of the ‘evi!’ it seeks to
remedy." Frisby, 487 U.S. at 485 (citations omitted).
The City of Phoenix claims it has a _ significant
governmental interest in protecting "the right of persons using
health care facilities to be free from direct confrontation,
*(.. continued)
reviewing a legislative ordinance; and (3) the Portland court
specifically said that its analysis would differ if the injunction
applied to all persons, rather than just the parties to that lawsuit,
thereby precluding any “chilling effect" on the exercise of First
Amendment rights in the public at large.
37a
hindrance, harassment, intimidation, and harm." Plaintiffs asserted
at oral argument that the government is seeking to protect people
from "the impact of words." The Court need not decide whether
the City’s articulated interest is a valid, significant governmental
interest within the meaning of a reasonable time, place, and manner
restriction. For the purposes of this analysis, the Court presumes,
for the sake of argument, that there is a valid, legitimate
governmental interest at stake. Yet, even with this presumption,
the Court finds the Ordinance is not narrowly tailored to achieve
this interest.
The Defendants claim "this Ordinance is very narrowly
tailored to serve the identified government{al] interest. The harms
to persons approaching health care facilities flow from the close
proximity efforts of others to force their message on unwilling
listeners. The Ordinance has no application away from health
care facilities." Defendants’ Brief at 7 (footnote added). Once
again, the Court disagrees.
1. Overbreadth
The doctrine of overbreadth concerns the precision of a
law, and an analysis of whether the law in question sweeps too
broadly by indiscriminately reaching both protected and unprotected
expression. See, e.g., Gooding v. Wilson, 405 U.S. 518 (1972).
The fact that Defendants argue the Ordinance seeks to ptiect
the “unwilling listener" demonstrates that the Ordinance is not
content neutral since "listeners’ reaction to speech is not a content
neutral basis for regulation." Forsyth, 112 S.Ct. at 2403. It is the
very fact that some are offended by the content of the speech that
affords it First Amendment protection. Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 55 (1988).
38a
The Ordinance in this case restricts such activities as the
display of signs, the distribution of literature, and even the mere
voicing of statements which are of an educational, counseling, or
protesting nature. Yet, the Supreme Court has affirmed the
constitutionally protected status of such activities. See Boos v.
Barry, 485 U.S. 312, 318 (1988) (public demonstration, including
display of signs and placards, lies “at the core" of the "First
Amendment"); City of Houston v. Hill, 482 U.S. 451 (1987) (oral
protest rests at the very heart of the right to free speech); United
States v. Grace, 461 U.S. 171 (1983) (distribution of literature via
leafletting is a form speech which is an “expressive activity
protected by the First Amendment"); Carey v. Brown, 447 U.S.
455, 466-67 (1980) (picketing is an exercise of “basic constitutional
rights in their most pristine form").
The annunciated intent of this Ordinance is to prevent
impeded access to health care facilities. The overbreadth of the
Ordinance is most evident insofar as it restricts passive leafletting
and handbilling even though the Supreme Court has warned against
time, place, and manner restrictions on such conduct in the public
forum. See, e.g., Ward, 491 U.S. at 799 n. 7 ("a ban on
handbilling, of course, would suppress a great quantity of speech
that does not cause evils that its seeks to eliminate"); see also
Martin v. Struthers, 319 U.S. 141 (1943).
Defendants argue the Ordinance is not overbroad because
its allows an individual to ban certain activities only within eight
feet of his or her person.® Citing Frisby v. Schultz, 487 U.S. 474
*The fact that an individual has the power to effectuate this ban,
once again, demonstrates that the Ordinance is not content neutral
because its application turns on the subjective reaction of the
recipient of the speech at issue. Forsyth, 112 S.Ct. at 2403; Boos,
485 U.S. at 321 (O’Connor, J., concurring).
39a
(1988), Defendants assert that Plaintiffs only have a right to
distribute literature to a person willing to receive it. Frisby,
however, upheld a municipal ordinance which prohibited picketing
around a private residence. /d. at 483-85. The Court made it clear
that the First Amendment does not permit a speaker to force an
unwilling listener to be subject to the exercise of free speech in his
home. The Ordinance in this case, unlike the one in Frisby, does
not regulate speech in and around private homes but attempts to do
so on public streets and sidewalks.
Defendants correctly state there is no First Amendment
right to block a public street or sidewalk or to block ingress and
egress to a public or private building in an effort to exercise the
rights of free speech and expression. See, e.g., Cox v. Louisiana,
379 U.S. 536 (1965). From this proposition, and the holding in
Frisby, Defendants mistakenly extrapolate the legitimacy of the
"free zone" or “bubble zone" created by the Ordinance.
Specifically, Defendants assert:
The Phoenix City Council found that the eight foot
restriction was necessary to counteract specific abuses that
impede ingress to medical facilities. Plaintiffs would have
this Court second-guess whether the Phoenix City Council
could have achieved its goals with a narrower free zone.
Faced with similar challenges, other courts have declined
to entertain quibbling over a few feet.
Defendants’ Response at 11.
In essence, the Ordinance’s distance requirement effectively
prevents handbilling and leafletting based upon the subjective
reaction of the person to whom the literature is offered. It is
physically impossible to hand a leaflet or handbill to someone from
eight feet away. Moreover, those persons who are unwilling to
40a
accept it are free to refuse. If the people distributing the literature
attempt to force a handbill or leaflet on an unwilling recipient,
other provisions of the Arizona Criminal Code protect those
interests, including the provisions governing assauit and battery,
criminal trespass, stalking, disorderly conduct, disturbing the
peace, rioting, criminal nuisance, and, in the worst case scenario,
even murder.
The Court also notes that the present Ordinance is much
broader than the injunction upheld in Portland Feminist Women’s
Health Center v. Advocates for Life, 859 F.2d 681 (9th Cir. 1988).
First, Portland dealt with a civil preliminary injunction that was of
limited duration. The Phoenix Ordinance is both criminal and
permanent. Second, the injunction in that case was binding only
on the parties to the action and no one else. In contrast, the
Ordinance in this case restricts speech of all persons. Finally, the
Ninth Circuit narrowed the scope of the injunction to include only
"shouting, screaming, . . . [and] yelling that substantially
interfere[d] with the provision of medical services within the
{medical facilities at issue], including counseling." Jd. at 686.
Thus the volume of communications was reasonably restricted in
time, place, and manner, but the content of these communications
was not restricted. The alternative of quiet oral communication
was not enjoined. The scope of the Ordinance in the present case
is much broader as it restricts all types of First Amendment
activities that may fall under the umbrella of “demonstration
activities" whether they be peaceful or boisterous, quiet or loud, or
whether they interfere with the operation of the medical facility or
not. The Ordinance is therefore unconstitutionally overbroad.
2. Vesting of Power in Private Citizens
One of the most constitutionally troublesome aspects of this
Ordinance is the fact that what is subject to criminal punishment
4la
under the terms of the Ordinance is not objectively defined. The
Ordinance empowers private citizens with unrestrained discretion
to restrict or permit First Amendment expression. Where the
criminalization of protected First Amendment expression turns on
unfettered discretion, there is a substantial risk that the discretion
can be used in the suppression of ideas and is therefore
unconstitutional. Thornhill v. Alabama, 310 U.S. 88 (1940).
Defendants and Amicus argue the unfettered discretion
issue was resolved by the Supreme Court in Rowan v. United States
Post Office Dep’t, 397 U.S. 728, 736 (1970). Rowan upheld a
statute under which the recipient of a mailed advertisement could
require the mailer to remove the recipient’s name from its mailing
lists if the advertisement offered to sell "matter which the addressee
in his sole discretion believes to be erotically arousing or sexually
provocative." /d. at 736-37. Thus, Rowan involved a reasonable
regulation designed to protect the privacy of homeowners. As
discussed below, the Supreme Court has upheld a number of
restrictions on First Amendment rights when the exercise of these
rights forces someone in the privacy of their own home to be an
unwilling recipient of communications. See also Frisby, 487 U.S.
at 487; Kovacs v. Cooper, 336 U.S. 77 (1949). Since this
Ordinance in the present case regulates in the public forum away
from the home the Court is not persuaded that the rationale of
Rowan is applicable to this case.
In Gooding v. Wilson, 405 U.S. 518 (1972), a Georgia
breach of the peace statute was held unconstitutionally overbroad.
The statute made it "a breach of the peace merely to speak words
offensive to some who hear them, and so [swept] too broadly." /d.
at 527. Unlike Gooding, the Ordinance in this case does not, on
its face, claim to impose criminal liability based on whether the
listener finds the expression “offensive.” However, the Ordinance
does so sub silentio. Thus, like Gooding, the application of the
: 42a
Ordinance would turn on the content of the message being
expressed. The fact that some listeners might be disturbed or feel
harassed by the content of the speech does not diminish its
constitutionally protected status. If it is the speaker's opinion that
gives rise to the offense, that consequence is a reason for according
it constitutional protection. Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd., 112 S.Ct. 501, 509 (1991). In other
words, it is the very fact that members of society might find the
idea expressed to be offensive or disagreeable that is the basis for
the First Amendment protection of the message in the first place.
See Texas v. Johnson, 491 U.S. at 414; United States v. Eichman,
496 U.S. at 319.
Because a valid time, place, and manner restriction on First
Amendment freedoms must be narrowly tailored, the Ordinance
which fails to put objective criteria for its enforcement in place
cannot stand. See Forsyth County, 112 S.Ct. at 2403.
3. Vagueness
The vagueness doctrine is based on due process principles
that require fair notice and warning. It incorporates a requirement
that a law be sufficiently specific to avoid arbitrary and
discriminatory enforcement by police and courts. Connally v.
General Constr. Co., 269 U.S. 385, 391 (1926). An
unconstitutionally vague law delegates basic policy matters to
policemen, judges, and juries for resolution ou an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application. Grayned v. City of Rockford, 408 U.S.
104, 108-09 (1972).
The most stringent of scrutiny is applied to the examination
of a statute for vagueness when the statute induces a chill on free
speech. See, e.g., Hynes v. Mayor & Council of Oradell, 425 U.S.
43a
610, 620 (1976) (stating the general test for vagueness applies with
particular force in review of laws dealing with speech); Smith v.
California, 361 U.S. 147, 149 (1959). The requirement of
specificity in legislation that impacts on First Amendment rights
seeks to preclude a chill on free speech that results from vague
laws: "“[uJjncertain meanings inevitably lead citizens to steer far
wider of the unlawful zone . . . than if the boundaries of the
forbidden areas were clearly marked." Grayned, 408 U.S. at 109
(citations omitted). Applying this test to the Ordinance in question,
it is clear that it cannot withstand constitutional scrutiny for
vagueness.
The Ordinance by its own terms is intended to protect
persons in a “captive audience"? who find certain speech
“harassing or intimidating." Where the lawfuiness of speech turns
on the reactions of others, the restriction is unconstitutional.
Coates v. Cincinnati, 402 U.S. 611, 611-14 (1971). In Coates, the
Court struck down an ordinance that made it illegal for "three or
more persons to assemble . . . on any of the sidewalks . . . and
there conduct themselves in a manner annoying to persons passing
by ...." dd. at 611. The Court held that a city cannot enact an
ordinance whose violation depends on the subjective reactions of
others. /d. at 614.
Defendants argue that unlike the situation in Coates, the
present Ordinance sets a specific standard for conduct: persons
engaged in demonstration activity must withdraw at least eight feet
from the person making the request to do so. Defendants fail to
recognize, however, that there are two distinct areas of uncertainty
"The significance of a "captive audience” is discussed below at
pages 28-32. Even if the captive audience doctrine were applicable
in this case, that would not save the Ordinance from being
unconstitutionally vague.
44a
that are at the very crux of the vagueness problem presented by this
Ordinance: (1) what is “demonstration activity"; and (2) what
constitutes a "clearly communicated request" to withdraw.
The Ordinance declares that "demonstration activity"
includes, but is not limited to, "protesting, picketing, distributing
literature, attempting to impede access, or engaging in oral protest,
education, or counseling activities." A speaker cannot, from this
definition, know with constitutional certainty when speech will be
deemed criminal under the terms of the Ordinance. For exampie,
what does the term “oral protest" include? Songs? Speeches?
Prayer? Because the resolution of such questions will turn on the
subjective and ad hoc determinations of police, judges, and juries,
the Ordinance is void for vagueness. Grayned, 408 U.S. at
108-09.
Moreover, what constitutes a clearly communicated request
to withdraw? "I do not wish to hear from you, please withdraw to
the minimum eight feet distance to allow me to pass unimpeded to
the clinic" would be a clearly articulated request under the
Ordinance, the failure with which to comply would subject the
speaker to criminal liability. More realistically, however, the
communication might be "get lost" or “buzz off." What about
"shut up!"? A grunt? A push? A roll of the eyes with a mumbled
swear word? The fact that the reactions and expressions of a
private individual can cause the speaker to be subject to criminal
liability and the fact that the speaker must interpret whether there
has been a clearly communicated request to withdraw both
demonstrate the lack of objective criteria that ordinary, reasonable
people would have to determine whether they are subject to the
provisions of the Ordinance. See Connally v. Generai Constr. Co.,
269 U.S. 385, 391 (1926).
Defendants and Amicus have pointed the Court to some
authority that suggests whether there has been a clearly articulated
45a
request to withdraw is a question of fact that would provide a
defense to someone charged under the Ordinance. This begs the
point. The very fact that someone will not know if they are subject
to criminal liability under the Ordinance until after they are
arrested and tried demonstrates why the Ordinance is vague.
Judges and juries could easily differ on whether “shut up" or a
similar comment clearly communicated a request to withdraw.
Such subjective and ad hoc determinations show the vagueness of
the Ordinance. Grayned, 408 U.S. at 108-09.
In short, the Ordinance uses terms which are so indefinite
that persons of common intelligence must guess at their meaning
and differ a to their application. The Ordinance is therefore
unconstitutionally vague. Connally, 269 U.S. at 391.
4. Alternative Channels of Communication
The Supreme Court has held that a restriction on free
speech that claims to be a valid time, place, and manner restriction
must leave open alternative channels of communication. Forsyth
County, 112 S.Ct. at 2401; Frisby, 487 U.S. at 481. Under this
test, a regulation is invalid if the restricted forum constitutes a
“uniquely valuable or important mode of communication.”
Taxpayers for Vincent, 466 U.S. at 812.
In Taxpayers for Vincent, the Court upheld a ban on the
posting of signs on pubiic property because the ban did not affect
any individual's freedom to exercise the right to speak in the same
place where the posting of signs was prohibited. Taxpayers for
Vincent, 466 U.S. at 812. Unlike in that case, the Phoenix
Ordinance reaches all types of communication that may fall within
the vague and overbroad definition of “demonstration activities.”
46a
As stated above, the Supreme Court has recognized
hand-to-hand leafletting as a uniquely valuable mode of
communication protected under the First Amendment. See, ¢.g.,
Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971). If a leafletter is required to move more than eight feet
away from the intended recipient, there is no equally valuable or
effective means of communication tantamount to leafletting that are
left open.
The Ordinance sought to alleviate some of the “harassing
or intimidating" types of confrontations that have unfortunately
beleaguered the persons whom this Ordinance seeks to protect.
Ironically, by preventing leafletting and handbilling, the Ordinance
leaves no mode of communication open other than withdrawing to
a certain distance and orally communicating with a raised voice.
The Ordinance thereby forces those who wish to exercise their First
Amendment rights to resort to shouting from a distance, which
inevitably leads to a more hostile and confrontory environment than
does peaceful handbilling and leafletting. Moreover, by forcing
“demonstration activities" to occur at distances that require
amplified volume for the messages to be received by the target
audience, the Ordinance may be subjecting those seeking to engage
in free speech activities to be subject to other criminal sanctions,
such as public nuisance, disorderly conduct, and disturbing the
peace. Clearly, the Ordinance therefore does not leave open ample
alternative channels of communication.
Ill. THE BALANCING OF EQUITIES
As illustrated by the analysis above, the balancing of
hardships clearly tips in favor of the Plaintiffs. Balancing the
equities in this case is most difficult, though, since First
Amendment rights are at issue on one hand and, in the most basic
of terms, the right to be left alone is on the other. See, e.g. Rowan
47a
v. United States Post Office Dep't, 397 U.S. 728, 736 (1970) ("no
one has the right to press even good ideas on an unwilling
recipient"). In describing this part of the preliminary injuncti6n
analysis, the Court in Cheffer stated:
It is difficult indeed to weigh the relative value of different
constitutional rights. Our sister circuit described a similar
abortion protest case as a "clash . . . between constitutional
rights defined by the Supreme Court: an old one tracing
its roots to the speech clause of the First Amendment and
before, and a new one stemming from Roe v. Wade."
+_ * **
The clash here is between an actual prohibition of speech
and a potential hinderance to the free exercise of abortion
rights. Should the district court issue an injunction barring
the state court from enforcing its injunction as a criminal
statute, it would promote only speech and expressive
conduct, not assault, trespass, or destruction of property.
Cheffer v. McGregor, 6 F.3d 705, 711 (11th Cir.1993).
Part of this analysis involves the application of the so-called
“captive audience” doctrine. When a case presents, as this one
does, a conflict between the right to speak and the right to be left
alone, the right of the listener is entitled to considerable weight
when the listener is a member of a captive audience. See, e.g.,
Frisby, 487 U.S. at 487; Cohen v. California, 403 U.S. 15 (1971).
In general, the captive audience doctrine does not apply
when the unwilling audience is located on a public street or
sidewalk because they can avoid the unwanted message simply by
walking away or averting their eyes. Erznoznik v. Jacksonville,
48a
422 U.S. 205, 211 (1975); Cohen v. California, 403 U.S. at 21.
It is an inevitable byproduct of life in modern day society,
especially in an urban setting, that “we are often captives outside
the sanctuary of the home and [thus] subject to objectionable
speech.” Rowan v. United States Post Office Dep't, 397 U.S. 728,
738 (1970). Due to this fact, the Supreme Court has consistently
rejected application of the captive audience docirine in cases
involving free speech that occurs outside the home or its environs.
For example, in Erznoznik v. Jacksonville, 422 U.S. 205
(1975), the Court invalidated a city ordinance prohibiting drive-in
movie theaters from showing films containing nudity where the
screen was visible from a public street. The Court specifically
found (1) the ordinance was not content neutral, and (2) the public
was not a captive audience. Similarly in Hess v. Indiana, 414 U.S.
105 (1973), the fact that persons on a public street could not shield
themselves from the use of a particularly offensive swear word in
a loud voice on a public street did not give rise to a situation where
the captive audience doctrine could apply. These cases illustrate
that the balance between the offensive speaker and the unwilling
audience may sometimes tip in favor of the speaker; the offended
listener is required to turn away. FCC v. Pacifica Foundation, 438
U.S. 726, 749 n. 27 (1978)-
The captive audience doctrine is most often applied in cases
where the unwilling audience is subjected to the speaker's
expressive activity near the home. For example, in Frisby, 487
U.S. at 487, the Court upheld a local ordinance banning “focused”
picketing of a physician's private residence on the ground that the
speech at issue made the residents of the doctor’s house “captives”
in their own home. Similarly, in Kovacs v. Cooper, 336 U.S. 77
(1949), the Court upheld a ban on amplified sound trucks because
they were so intrusive that they made it impossible for people to
escape their message.
49a
Outside of the setting of the home, especially in the public
forum, the doctrine has limited application. It is clear, though, that
the captive audience doctrine can be used outside the residential
setting "when the degree of captivity makes it impractical for the
unwilling viewer or auditor to avoid exposure." Erznoznik, 422
U.S. at 209. When a situation rises to the level of making it
impractical for the unwilling viewer or auditor to avoid exposure
is a question of degree. The most clear cut example of a captive
audience are inmates in a prison. Slightly less captive are those in
the armed forces or children in public schools. While the public
on a street fails far short of these highly captive audiences, there
are situations when the Supreme Court has applied the doctrine in
the public forum.
The most practical application of the captive audience
doctrine in the public forum occurs when the unwilling audience is
physically constrained by their environment. For example, in
Lehman v. Shaker Heights, 418 U.S. 298 (1974), a plurality
opinion by the Supreme Court found the doctrine to apply to rapid
transit passengers on municipally-owned buses.
The Court finds that the captive audience rationale does not
apply under the facts and circumstances of this case. The types of
restrictions upheld in Frisby and Kovacs are far less restrictive than
those imposed by the Ordinance in this case since those cases left
open other alternative channels for communication. Unlike in
Lehman, the forum being regulated by the Phoenix Ordinance
includes public streets and sidewalks, not the enclosure of a bus,
streetcar, or subway train.
Given the overbreadth of the Ordinance, it cannot be said
that every person seeking access to every medical facility in the
City of Phoenix is a captive to whatever message a person may be
seeking to deliver in the public fora surrounding these facilities.
50a
For example, people are not forced to take and read literature
offered to them outside a medical facility. They have the choice
not to accept a leaflet or handbill. They also have the choice to
take what is offered and simply discard it without ever reading it
by "simply averting their eyes." Erznoznik, 422 U.S. at 211. The
- ability of an individual to effectuate a ban on handbilling under the
provisions of the Ordinance demonstrates that the Ordinance simply
goes too far in seeking to protect the right o be left alone.
Additionally, because the Ordinance is not narrowly
tailored to advance the governmental interest of providing
unimpeded access to medical facilities, the captive 2udience
doctrine cannot be used to salvage the Ordinance. In City of
Watseka v. lliinois Public Action Council, 796 F.2d 1547 (7th Cir.
1986), aff'd without opinion, 499 U.S. 1048 (1987), the court
declared an ordinance unconstitutional which regulated door-to-door
solicitation of private residences. The court found that the
ordinance was not narrowly tailored to meet even the captive
audience problem of the unwilling audience in the home. The
Supreme Court summarily affirmed the decision.
Given the multiplicity of constitutional problems with this
Ordinance and the extent of these constitutional infirmities, the
First and Fourteenth Amendment rights of those who may be the
subject of criminal prosecution under the Ordinance must outweigh
the rights of those who seek to be left alone, even if a captive
audience situation were to apply.
Enjoining the enforcement of the Ordinance promotes only
speech and expressive conduct protected by the First Amendment.
By issuing the injunction today, the Court does not condone
“assault, trespass, or destruction of property,” or any other forms
of violence. Cheffer, 6 F.3d at 711. The Constitution provides for
peaceable assembly, not riotous behavior or mayhem. The City
S5la
has at its disposal many laws to deal with those individuals who
cannot peaceably assemble to exercise their freedom of expression
to which the Constitution is no bar. The City may also choose to
revise the Ordinance in question within the boundaries prescribed
by the Constitution. See National Organization for Women v.
Operation Rescue, 914 F.2d 582 (4th Cir. 1990) (upholding
injunction prohibiting pro-life organization and its members from
trespassing on, blockading, impeding, or obstructing access to or
egress from medical clinics at which abortions were performed),
rev'd in part & vacated in part, sub nom. Bray v. Alexandria
Women’s Health Clinic, 113 §.Ct. 753 (1993) (holding the Klu
Klux Klan Act, 42 U.S.C. § 1985, could not be used to bring suit
for conspiracy to deprive constitutional rights against anti-abortion
protestors).*
IV. THE PUBLIC INTEREST
Freedom of expression is at the very core of our
constitutional liberties. The First Amendment continues to reflect
a “profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open .. . ."
Boos, 485 U.S. at 318. Such robust debate is always accompanied
by differences of opinion. Often these differences are profound
and spark intensity of feeling and emotion. Indeed, “vehement,
caustic, and sometimes unpleasantly sharp" speech is protected by
the Constitution. New York Times Co. v. Sullivan, 376 U.S. 254,
*The Supreme Court recently held in National Organization for
Women, Inc. v. Scheidler, 1994 WL 13716, 62 U.S.L.W. 4073
(U.S. Jan. 24, 1994), that RICO statutes could be used to prosecute
demonstrators who protest outside medical facilities which provide
abortion services. While worthy of mention, the Court does not
believe that the decision in that case impacts the Court’s analysis
in the present case.
52a
270, (1964). There are, no doubt, times when all of us wish that
we did not have to put up with another person’s exercise of these
protected rights. Such, however, is the price we pay for living in
a democracy. It serves the public interest to issue the injunction
since doing so thereby fosters our democratic ideals and freedoms.
CONCLUSION
The City of Phoenix passed the Ordinance in an attempt to
provide unimpeded access to health care services for its citizens.
While the Court understands the City’s motives in establishing a
neutral zone of passage around Phoenix medical facilities, the
Court cannot overlook the fact that the mechanism the City uses to
accomplish this end is an ordinance which fails to meet
constitutional standards under the First Amendment.
For the reasons set forth above, the Court finds:
1. The Plaintiffs will suffer irreparable injury if the
injunctive relief is not granted.
2. The Plaintiffs have demonstrated a substantial
likelihood of succeeding on the merits because the
Ordinance is not a valid time, place, and manner
regulation of free speech due to the fact that:
(a) the Ordinance is not a content neutral
regulation of free speech;
(b) the Ordirance is not narrowly tailored to
achieve the stated governmental interest;
(c) the Ordinance is unconstitutionally vague;
and
53a
(d) the Ordinance fails to leave open
alternative methods of communication in
the public forum in which the law
regulates.
3. The issuance of the injunction will not harm the
City of Phoenix more than it helps the Plaintiffs.
4. Granting injunctive relief is in the public interest,
as it fosters the core constitutional value of
freedom of expression.
IT IS ORDERED that Plaintiffs’ Application for a
Preliminary Injunction is hereby GRANTED.
IT IS FURTHER ORDERED that Phoenix City Ordinance
No. G3705, codified as Phoenix City Code § 23-10.1, is hereby
DECLARED UNCONSTITUTIONAL as violative of the First
and Fourteenth Amendments of the United States Constitution.
IT IS FURTHER ORDERED that the Defendants, and
any and all persons acting in concert with them, including, but not
limited to their agents, servants, employees, attorneys, and the
Phoenix Police Department, are hereby RESTRAINED AND
ENJOINED from enforcing Phoenix City Ordinance No. G3705,
codified as Phoenix City Code § 23-10.1, due to the
unconstitutionality of the Ordinance as described herein.
Dated this 11th day of February, 1994.
/s/ Stephen M. McNamee
United States District Judge
54a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CIV 93-2229-PHX-SMM
KATHERINE SABELKO and NANCY BARTO,
Plaintiffs,
Vv.
THE CiTy OF PHOENIX, ef al.,
Defendants.
JUDGMENT IN A CIVIL CASE
February 11, 1994
Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury : as
rendered its verdict.
Decision by Court. This action came to trial or hearing
before the Court. The Issues have been tried or heard and
a decision has been rendered.
IT IS ORDERED AND ADJUDGED plaintiffs’ Application
for a Preliminary Injunction is granted.
55a
FURTHER ADJUDGED that Phoenix City Ordinance No.
G3705, codified as Phoenix City Code § 23-10.1, is hereby
declared unconstitutional as violative of the First and Fourteenth
Amendments of the United States Constitution.
FURTHER ADJUDGED that the defendants, and any and
all persons acting in concert with them, including, but not limited
to their agents, servants, employees, attorneys, and the Phoenix
Police Department, are hereby restrained and enjoined from
enforcing Phoenix City Ordinance No. G3705, codified as Phoenix
City Code § 23-10.1, due to the unconstitutionality of the
Ordinance.
February 11, 1994 Richard H. Weare
Date Clerk
/s/ C. Evans
(By) C. Evans, Deputy Clerk
56a
APPENDIX E
ORDINANCE NO. G3705
AN ORDINANCE AMENDING CHAPTER 23,
ARTICLE 1 OF THE PHOENIX CITY CODE, BY
ADDING SECTION 23-10.1, RELATING TO
UNIMPEDED ACCESS TO HEALTH CARE
FACILITIES; AND DECLARING AN EMERGENCY.
WHEREAS, unimpeded access to health care services is
critically and uniquely important to the public health, safety and
welfare; and
WHEREAS, persons attempting to access health care
facilities are subject to harassing or intimidating activity tending to
impede their access to those facilities by demonstrators approaching
within extremely close proximity; and
WHEREAS, such activity near health care facilities creates
a “captive audience” situation where persons seeking services
cannot avoid the area outside the facilities, and their physical and
emotional conditions may make them especially vulnerable to the
adverse physiological and emotional effects of such harassing or
intimidating activities directed at them from extremely close
proximity; and
WHEREAS, such activity in extremely close proximity
tends to undermine a person’s right to privacy and interfere with
a person’s right to seek legitimate health care treatment and
counseling; and
WHEREAS, this ordinance does not preclude all protesting,
picketing, demonstrating, leafleting or educational activities near a
health care facility but is a necessary time, place and manner
57a
restriction intended to reconcile and protect the First Amendment
rights of demonstrators and the rights of persons using health care
facilities to be free from direct confrontation, hindrance,
harassment, intimidation and harm; and
WHEREAS, existing law does not adequately protect such
access to health care facilities; NOW THEREFORE,
BE IT ORDAINED by the Council of the City of Phoenix
as follows:
«-
SECTION 1. Chapter 23, Article 1, Phoenix City Code,
is amended by adding section 23-10.1 to read:
Sec. 23-10.1 IMPEDING ACCESS TO HEALTH CARE
FACILITIES.
A. It is unlawful for any person, in the course of
demonstration activity within the access area of a health
care facility, to fail to withdraw upon a clearly
communicated request to do so to a distance of at least
eight (8) feet away from any person who has made the
request.
B. For purposes of this section:
1. "Access area" means any portion of
a public street or other public place or any place
open to the public within one hundred (100) feet of
an exterior wall or entryway of a health care
facility.
2. "Demonstration activity" includes
but is not limited to prctesting, picketing,
distributing literature, attempting to impede access,
58a
or engaging in oral protest, education or
counseling activities.
3. "Health care facility" means any
hospital, clinic, office, building or other place used.
to provide medical, psychological, nursing or other
health care services, including family planning
counseling and pregnancy- related services.
Ce For purposes of this section, distance shall
be measured from that part of the closest demonstrator’s
body that is nearest to the closest part of the requesting
person’s body. The term "body" includes any natural or
artificial extension of a person’s body including but not
limited to an outstretched arm or a hand-held sign.
SECTION 2. WHEREAS, the immediate operation of the
provisions of this ordinance is necessary for the preservation of the
public peace, healti and safety, an EMERGENCY is hereby
declared to exist, and this ordinance shall be in full force and effect
from and after its passage by the Council as required by the City
Charter and is hereby exempted from the referendum clause of said
Charter.
PASSED by the Council of the City of Phoenix this 17th
day of November, 1993.
/s/ Paul Johnson
Mayor
ATTEST:
/s/ Vicky Miel City Clerk
APPROVED AS TO FORM:
/s/ Rod McDougall City Attorney
REVIEWED BY:
/s/ Frank Fairbanks City Manager
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59a
APPENDIX F
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 94-2243 RG (JRx)
VICKIE L. EDWARDS, ef al.,
Plaintiffs,
Vv.
THE City OF SANTA BARBARA, ef al.,
Defendants.
ORDER
Dated March 13, 1995
Filed March 14, 1995
Entered March 15, 1995
This matter came before the Court on Plaintiffs’ renewed
motion for a preliminary injunction and Defendants’ motion for
summary judgment. Plaintiffs’ motion is GRANTED and
Defendants’ is DENIED.
60a
I. BACKGROUND
In May of 1993, the City Council of defendant City of
Santa Barbara ("the City") adopted an ordinance limiting protest
activity outside medical clinics and places of worship ("the
Ordinance"). The Ordinance was passed in the wake of complaints
by individuals and organizations about the conduct of anti-abortion
protestors. For instance, a representative of a local Planned
Parenthood clinic complained that protestors were disrupting
traffic, impeding access to the clinic, and confronting patients and
staff members in a harassing fashion. See, e.g., Exhibits 103, 104
to Defendants’ Opposition to Preliminary Injunction (letters to City
Council members from Executive Director of Planned Parenthood
of Santa Barbara, detailing incidents and complaints and requesting
legislative response). There were also complaints that protestors
had confronted abortion providers at their churches.
A. T di
The Ordinance has two main provisions.' Section
9.99.030 ("the Driveway Provision") prohibits all "demonstration
activity” on or within eight feet of the driveway of a health care
facility or place of worship. "Demonstration activity" is defined
to include "all expressive or symbolic content, whether active or
'The full text of the Ordinance is set forth in the Appendix to
this Order.
*The second clause of Section 9.99.030 prohibits impeding
access to a clinic or place of worship: "No person shall impede
access to a driveway entrance of a health care facility or place of
worship by any conduct which delays or impedes the flow of
pedestrian or vehicular traffic in or out of such facility." Plaintiffs
do not challenge this provision.
6la
passive... ." Ordinance at 9.99.010(D). Section 9.99.020 ("the
Bubble Zone Provision") forbids a person from "impeding" or
"hampering" access to a health care facility or place of worship by
failing to withdraw to eight feet away from a person when the
person so requests. This provision is effective in the "access area",
which is the area within 100 feet of a health facility or place of
worship. Ordinance at 9.99.010(A). Obviously, both provisions
encompass activity on public sidewalks.
B._ The Instant Suit
This action was brought by two anti-abortion "sidewalk
counselors" who challenge the constitutionality of the Ordinance.
Plaintiffs Vickie Edwards ("Edwards") and Kathleen Rose
McCaulley ("McCaulley") claim that they seek, inter alia, to
“engage in peaceful hand-to-hand leafletting , one-on-one counseling
about abortion alternatives, and periodically hold signs with a pro-
life, anti-abortion message." McCaulley Declaration at { 4;
Edwards Declaration at ¢ 4. Edwards and McCaulley want to
conduct these activities outside of medical facilities providing
abortion services within the City.
Both Edwards and McCaulley claim that the Ordinance
chills and deters them from this planned expressive activity.
Specifically, they claim that they are afraid to engage in any
communicative activities within eight feet of a clinic driveway.
Edwards Declaration at 4 12-13; McCaulley Declaration at ¢{
12- 13. Edwards complains that the Bubble Zone Provision
prevents her from conducting effective one-on-one counseling or
leafletting, as the eight-foot zone makes it impossible to hand
‘Some of the cases on this subject use the term “bubble zone"
very broadly to encompass all limited-speech areas. This Court
uses it only to describe one specific provision of the Ordinance.
62a
leaflets to people and forces her to speak at a volume that "prevents
empathy and sometimes even causes stress." Second Edwards
Declaration at ¢ 9-11. Edwards has been arrested for violation of
the Driveway Provision, though the charges were dismissed.
Fourth Edwards Declaration at 444-10.*
Plaintiffs brought the instant suit for injunctive relief
against the City and members of the City Council, arguing that the
Driveway and Bubble Zone Provisions violate the First Amendment
to the United States Constitution. This Court denied a motion for
a preliminary injunction against the Driveway Provision in an order
dated May 24, 1994.°
Plaintiffs now move for a preliminary injunction against
both provisions, presenting evidence of legislative history for the
first time. Defendants move for summary judgment, arguing that
the undisputed facts show that the Ordinance is constitutional.
Il. THE LEGAL STANDARDS
A._The Standard for Summary Judgment
Under F.R.C.P. 56, summary judgment is proper if there
are no genuine issues of material fact and the moving party is
*Based <n these facts, there is no question that plaintiffs have
standing to make a facial, pre-enforcement challenge to the
Ordinance. See Virginia v. American Booksellers Ass'n, Inc. , 484
U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); Ripplinger
v. Collins, 868 F.2d 1043, 1046 (9th Cir.1989). Defendants do
not argue otherwise.
°*To the extent that this Court’s previous ruling is inconsistent
with this opinion, it is hereby VACATED.
63a
entitled to a judgment as a matter of law. F.R.C.P. 56(c). A
party resisting summary judgment has the affirmative obligation to
bring forward evidence "on which the jury could reasonably find
for [the nonmoving party]." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A mere
scintilla of evidence will not suffice. "Where the record taken as
a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial’.". Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B._ The Standard for a Prelimi —
The Ninth Circuit’s traditional test for determining whether
to issue a preliminary injunction requires the moving party to
demonstrate the following:
a The moving party will suffer irreparable injury if
the injunctive relief is not granted;
2. The moving party has a substantial likelihood of
succeeding on the merits;
3. An injunction will not harm the non-moving party
more than it helps the moving party; and
4. Granting injunctive relief is in the public interest.
City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir.
1985); Martin v. Int’l Olympic Comm. , 740 F.2d 670, 674-75 (9th
Cir. 1984).
64a
More recently, the Ninth Circuit has articulated an
alternative test. Under this test, the moving party must
demonstrate either:
i. Probable success on the merits and the possibility
of irreparable harm; or
R The lawsuit raises serious questions and the balance
of hardships tips sharply in the movant’s favor.
Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991).
Therefore, for the purpose of plaintiffs’ motion, this Court
must evaluate whether plaintiffs have shown probable success on
the merits and the possibility of irreparable harm.
Il, AN O Ww
This case presents a facial challenge to a time, place, and
manner restriction of speech in a public forum. Therefore, the
Court’s First Amendment analysis will proceed in discrete and
predictable stages. See, e.g., Ward v. Rock Against Racism, 491
U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
First, the Court must determine if the Ordinance is content
neutral. If the Ordinance is not content neutral, it is presumptively
invalid, and will only survive if the City can show that it is
necessary to serve a compelling state interest, and narrowly tailored
to meet that end. Simon & Schuster v. Crime Victims Bd., 502
U.S. 105, --, 112 S.Ct. 501, 116 L.Ed.2d 476, 486-488 (1991).
If the Ordinance is content neutral, then it will stand if it is
narrowly tailored to serve a significant government interest. Ward,
491 U.S. at 791, 109 S.Ct. at 2746, 105 L.Ed.2d 661.
65a
A restriction of First Amendment activity is narrowly
tailored if it "targets and eliminates no more than the exact source
of the ‘evil’ it seeks to remedy." Frisby v. Schultz, 487 U.S. 474,
108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). This Court’s
determination of whether the Ordinance is narrowly tailored entails
a constitutional overbreadth analysis of both the Bubble Zone and
the Driveway provisions.
"Only a statute that is substantially overbroad may be
invalidated on its face." New York v. Ferber, 458 U.S. 747, 102
S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413
U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Here, this
Court must first Getermine whether the enactment of the Ordinance
reaches a substantial amount of constitutionally protected conduct,
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at
494, 102 S.Ct. 1186, 71 L.Ed.2d 362. Special scrutiny is called
for in the case of a criminal ordinance such as this one. Winters
v. New York, 333 U.S. 507, 515, 68 S.Ct. 665 (1948).
IV. CONTENT NEUTRALITY
The first step in the First Amendment analysis of the
Ordinance is the question of content neutrality. If the Ordinance
is not content-neutral, the City must pass the nearly insurmountable
barrier of presumptive invalidity. See Simon & Schuster, 502 U.S.
-, 112 S.Ct. at 501, 116 L.Ed.2d at 486-487. If it is
content-neutral, then it will pass muster if it is “narrowly tailored
to serve a significant government interest." See Ward, 491 U.S.
at 791, 109 S.Ct. at 2746, 105 L.Ed.2d at 661; Clark v.
Community for Creative Nonviolence, 468 U.S. 288, 293, 104
S.Ct. 3065, 82 L.Ed.2d 221 (1984).
Plaintiffs’ arguments about content-neutrality may be
separated into four discrete areas: the face of the statute; the
66a
legislative intent; neutrality of enforcement; and reference to the
reaction of the audience.
A._ The Face of the Statute
As this Court found in its previous Order, the Ordinance
is facially neutral. It does not single out any viewpoint or subject,
but applies equally to all expressive activity within the proscribed
areas.°
*Plaintiffs point to Sabelko v. City of Phoenix, 846 F.Supp. 810
(D. Ariz. 1994), in which an Arizona district court found that a
similar statute was content-biased on its face. The Sabelko Court
based its decision on the fact that the statute before it focused on
“protest.” That statute read:
Demonstration activity includes but is not limited to
protesting, picketing, distributing literature, attempting to
impede access, or engaging in oral protest, education, or
counseling activities.
Id. at 814. According to the Sabelko Court, the emphasis on
“protest” meant that the statute turned on the content of the speech
or the viewpoint expressed:
If the speaker "protests," the speech is prohibited by the
Ordinance. On the other hand, if the speaker “supports,”
the speech may or may not be violative of the Ordinance.
Thus, the Ordinance imposes criminal liability depending
on the content and viewpoint of speech.
Id. at 819.
However, this case is distinguishable from Sabelko. In the
Ordinance before this Court, "demonstration activity” is defined as:
All expressive and symbolic conduct, whether active or
passive, which shall include, but not be limited to,
protesting, picketing, distributing literature, and engaging
(continued...)
67a
A facially neutral statute is still presumptively invalid if it
is designed to suppress a particular viewpoint. "The government
may not regulate [expression] based on hostility--or favoritism
--towards the underlying message expressed." R.A.V. v. St. Paul,
505 U.S. --, --, 112 S.Ct. 2538, 120 L.Ed.2d 305, 320 (1992).
However, it is important to distinguish an attempt to suppress a
viewpoint from an attempt to deal with the effects of particular
conduct or speech:
The principal inquiry in determining content neutrality, in
speech cases generally and in time, place, or manner cases
in particular, is whether the government has adopted a
regulation of the speech because of disagreement with the
message it conveys. The government’s purpose is the
controlling consideration. A_ regulation that serves
purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers
or messages but not others. Government regulation of
expressive activity is content-neutral so long as it is
justified without reference to the content of the regulated
speech.
°(_. continued)
in oral or silent protest, education or counseling activities.
Ordinance at 9.99.010(D) (emphasis added). Clearly, this
extraordinarily broad language does not exclude “support” while
targeting “protest,” but applies to all conceivable expression. The
phrase "all expressive and symbolic conduct” renders the Ordinance
facially neutral at the expense of gross overbreadth, as discussed
below.
68a
Ward, 491 U.S. at 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (cites
omitted, emphasis added). See also Renton v. Playtime Theatres,
475 U.S. 41, 47-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
Plaintiffs assert that the legislative history of the Ordinance
demonstrates that its drafters were motivated by hostility to the
anti-abortion viewpoint. In support of this theory, Plaintiffs have
submitted extensive legislative history, including letters to City
Council members, newspaper articles, and a transcript of the City
Council meeting at which the Ordinance was adopted.
However, as Ward makes clear, it is not enough to show
that the anti-abortion protests inspired the City Council to act, or
that the Ordinance has a disproportionate effect on people with
anti-abortion views. Plaintiffs must show that drafters acted out of
hostility towards the anti-abortion viewpoint, or in an effort to
suppress it. Ward, 491 U.S. at 791, 109 S.Ct. 2746, 105 L.Ed.2d
at 661.’
Plaintiffs fall short of this showing. The legislative history
demonstrates that the City Council was motivated by concern that
anti-abortion protests were preventing free access to medical clinics
and churches. The fact that Planned Parenthood requested the
Ordinance because of anti-abortion protests demonstrates nothing
more than concern with the effects of protest conduct. The flood of
letters concerned with access to abortion clinics on the one hand,
and the free speech rights of anti-abortion protestors on the other,
centered on this issue. Similarly, the extensive citizen statements
"Plaintiffs cite Sabelko for the opposite proposition. However,
as discussed above, the Sabelko Court based its finding of content
bias on the fact that the ordinance before it banned only “protest”
expression outside clinics, unlike the Ordinance here. Sabelko, 846
F.Supp. at 819.
69a
at the City Council hearing demonstrate concerns about the effects
of anti-abortion protests and the rights of the protestors. None of
this serves as evidence that the Council acted out of animus
towards the anti-abortion viewpoint.
Plaintiffs emphasize the comments of City Council member
Harold Fairly, who opined that the Ordinance "is content
motivated, and that’s been made very clear by the nature of today’s
discussion." Hearing Transcript at 54. However, Mr. Fairly is
not an arbiter of content neutrality. The rest of his comments
reveal that he shares plaintiffs’ incorrect conception of content
neutrality: he thinks that the Ordinance is content-biased because
it was motivated by the effects of anti-abortion protests. He also
thinks that the Ordinance would become content-neutral if it dealt
with protests at schools as well. Hearing Transcript at 56.
Finally, in later comments, he acknowledges:
For my own case ... 1 would not let my vote be
interpreted as either being for abortion or against abortion.
I am voting on this issue on the basis . . . that it is an
access issue.
Transcript at 60. Mr. Fairly’s comments do not demonstrate that
the City Council acted out of hostility towards a particular
viewpoint.
Plaintiffs compare this legislative process with that in
Church of Lukumi v. Hialeah, 508 U.S. --, 113 S.Ct. 2217, 124
L.Ed.2d 472 (1993), in which the Supreme Court struck down a
local ordinance because of the viewpoint bias reflected in the
legislative history. However, the facts of Hialeah are
distinguishable from this case. The Hialeah City Council acted not
only out of concern for the effects of animal sacrifice, but out of
a distinct and pervasive hostility towards the beliefs of the Santeria
religion. For instance, the president of the Hialeah City Council
70a
asked "What can we do to prevent the Church from opening?" 508
U.S. at --, 113 S.Ct. at 2127, 124 L.Ed.2d at 496. The Resolution
adopted by the Hialeah City Council included the statement, "This
community will not tolerate religious practices which are abhorrent
to its citizens...." Jd. The Supreme Court found that the
"pattern we have recited discloses animosity to Santeria adherents
and their religious practices.. .." Id. (emphasis added). By
contrast, plaintiffs have not demonstrated that the drafters of the
Ordinance here bore any hostility towards the anti-abortion
viewpoint.
Plaintiffs suggest that they have proved viewpoint animus
by showing that certain members of the Santa Barbara City Council
were affiliated with pro-choice groups. The Ordinance was
requested by the Executive Director of Planned Parenthood of
Santa Barbara, who wrote a letter to City Council members Harriet
Miller and Eleanor Langer. See Plaintiffs’ Exhibits Nos. 918-959.
Langer was a member of the Board of Directors of Planned
Parenthood when the Ordinance was enacted. Plaintiff's Exhibit
Nos. 1242. Council member Miller “has attended Planned
Parenthood meetings." Mayor Sheila Lodge, who is on the
Council, is also a member of Planned Parenthood and serves as a
volunteer "escort." Rollings Deposition at P51, L18. Plaintiffs
conclude that these affiliations prove viewpoint discrimination.
Plaintiffs’ Opposition to Summary Judgment at 23. They have
proved no such thing. Even though such membership permits an
inference that these individuals may disagree with the anti-abortion
viewpoint, plaintiffs have utterly failed to connect that disagreement
to the enactment of this Ordinance. As discussed above, plaintiffs’
evidence shows only that the Council members wanted to protect
free access to clinics and churches.
Plaintiffs have not shown that the Ordinance was motivated
by disagreement with the anti-abortion viewpoint; in fact, their
Tla
evidence shows that it was justified by reference to effects, not
content. Therefore, their argument about legislative intent must
fail. Ward, 491 U.S. at 791, 109 S.Ct. at 2746, 105 L.Ed.2d 661.
C. Neutrality of Enforcement
Plaintiffs assert that the history of enforcement of the
Ordinance demonstrates its viewpoint bias, and argue that a law is
not content-neutral when its enforcement turns on scrutiny of the
content of expression. See, e.g., Simon & Schuster, 502 U.S. at -
-, 112 S.Ct. 501, 116 L.Ed.2d at 487 (1991); Arkansas Writer’s
Project v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 95
L.Ed.2d 209 (1987); Hialeah, 508 U:S. at --, 113 S.Ct. 2127, 124
L.Ed.2d at 489-490 (1993).
Plaintiffs marshall two arguments in support of this point.
First, they show that the vast majority of those cited under the
Ordinance (97 out of 101, as of the time of the motion) were
anti-abortion protestors. Second, they cite the deposition of a
police officer for the proposition that enforcement is based on the
content of expression. See Deposition of Michael Foxen.
The evidence of arrests is inadequate to show biased
enforcement. Plaintiffs merely demonstrate that many anti-abortion
demonstrators have been cited under the Ordinance. They present
no evidence that protestors with different messages have violated
the Ordinance without being arrested. In other words, there is no
evidence to rebut the inference that anti-abortion protestors are
most often arrested because they are the ones most often in
violation of the Ordinance.
Plaintiffs’ second argument is more troubling. As they
point out, Officer Foxen testified that application of the Ordinance
depends on whether someone is expressing some type of an opinion
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in the prohibited zones. Foxen Deposition at 56. He gives many
damning examples; for instance, he says that someone playing a
country-western song in the zone would not be in violation, but
someone singing an anti-abortion song would be. /d. at 51.
Moreover, despite defendants’ arguments to the contrary, it appears
that Officer Foxen has put his views into practice. See, e.g.,
Foxen Deposition at 29 (person arrested for "expressing his opinion
within the zone"); /d. at 25 (person arrested because “his being in
the zone with the Bible constituted his attempting to express his
opinion within a demonstration-free zone."); /d. at 41 (arrest
because subject "was, by his presence, . . . attempting to express
his opinion").
However, based on this Court’s conclusion that the
Ordinance is overbroad, it need not resolve the difficult question of
whether this pattern of enforcement renders the Ordinance content-
based."
D. Depend Li 's React
Plaintiffs also assert that the Ordinance is not
content-neutral because it makes the legality of speech dependent
on the reaction of the audience. It is well established that a
"[lJistener’s reactions to speech is not a content neutral basis for
regulation." Forsyth County, Ga. v. Nationalist Movement, 505
U.S. --, -, 112 S.Ct. 2395, 120 L.Ed.2d 101, 114 (1992); Texas
v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342
(1989); Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d
333 (1988).
*The Court notes that Officer Foxen’s testimony provides many
practical examples of overbroad application of the Ordinance.
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Plaintiffs’ argument on this point must be divided into two
themes. First, they suggest that the entire Ordinance is
content-biased because it is motivated out of concern for the
psychological effects of protest on persons seeking access to the
clinics or churches. Second, they argue that the "Bubble zone"
provision is content biased because it makes the right to speak
within the 8-foot zone dependent on the listener’s willingness to
tolerate the speech.
with Ps ical Ef
It is true that the Ordinance is partially motivated by the
“adverse psychological and emotional effects of such harassing or
intimidating activities directed at them from extremely close
proximity." See Appendix A. However, this is not the sort of
government motivation that runs afoul "listener’s reaction” rule as
articulated by the Supreme Court. In Forsyth County, the Court
struck down an ordinance that set a variable for parade permits.
The fee was calculated depending on the probable cost of police
protection for the parade; thus, the vehemence of the opposition to
the parade’s message determined the cost of the expression.
Forsyth County, 505 U.S. at --, 112 $.Ct. 2395, 120 L.Ed.2d at
115. Similarly, the import of the Court’s ruling in Johnson was
that the strength of opposition to flag burning did not justify
banning it. Johnson, 491 U.S. at 408-409, 109 S.Ct. at 2553, 105
L.Ed.2d 342. In other words, this line of cases does not involve
statutes protecting listeners from emotional harm; rather, it dealt
with statutes limiting speech because of its tendency to inflame
listeners.
By contrast, the Supreme Court has upheld statutes whose
rationales include mitigation of harmful emotional and
psychological impact. Notably, in Madsen v. Women’s Health
Center, 512 U.S. --, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), the
74a
Supreme Court approved Florida’s argument that it had a legitimate
governmental interest in restricting protests around medical clinics
because "targeted picketing of a hospital or clinic threatens not only
the psychological, but the physical well-being of the patient held
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