Petition for Writ of Certiorari — Edwards v. City of Santa Barbara

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Supremé Ceurt, U.S.

\ FILED

No. 98- 981025 DEC 231998

IN THE OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

VICKIE L. EDWARDS and KATHLEEN ROSE MCCAULLEY.

Petitioners,

THE CITY OF SANTA BARBARA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Jay Alan Sekulow*

Walter M. Weber

THE AMERICAN CENTER FOR

LAW AND JUSTICE

1000 Thomas Jefferson St.,

N.W., Suite 609

Washington, DC 20007

(202) 337-2273

Benjamin W. Bull

THE AMERICAN CENTER FOR

LAW AND JUSTICE

7819 E. Greenway Road,

Suite 6

Scottsdale, AZ 85260

(602) 596-0821

*Counsel of Record

Kevin H. Theriot

THE AMERICAN CENTER FOR

LAW AND JUSTICE

415 Beckrich Road,

Suite 210

Panama City, FL 32407

(850) 236-0098

Andrew W. Zepeda

Brendan Macaulay

9107 Wilshire Boulevard,

Suite 800

Beverly Hills, CA 90210

(310) 274-8700

Attorneys for Petitioners

Tere Ce

QUESTIONS PRESENTED

Did the court of appeals err by upholding, despite the

free speech, press, and assembly guarantees of the First

and Fourteenth Amendments, an ordinance which bans

“(all expressive and symbolic conduct, whether active

or passive, which shall include, but not be limited to,

protesting, picketing, distributing literature, and

engaging in oral or silent protest, education or

counseling activities” on portions of public sidewalks?

Did the court of appeals err by treating this Court’s

decision in Madsen v. Women’s Health Center, Inc., 512

U.S. 753 (1994), as justifying ordinances of general

application (not injunctions) creating “speech-free

zones” on public sidewalks?

PARTIES

The caption of the case contains the names of all of the

partics to the proceeding in the court below. Neither of the

petitioners 1s a corporation. See S. Ct. Rule 29.6.

ill

TABLE OF CONTENTS

PUMEEPRRGRINGE WIRES REED 666k cic ec cc cccesccces

eat rah ayes held'e kee es uekecwe voce i

Pe a bp 6. 6 | or Vi

8 Se l

ee 2

CONSTITUTIONAL PROVISIONS AND

I OTE 2

UWURMOIEEN ES GPE REE SOARS ic oc ce ec ee eee 2

REASONS FOR GRANTING THE WRIT ............. 9

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF BOTH THIS COURT AND

THE U.S. COURT OF APPEALS FOR THE

ay ig wk U kn eek Oa os 2 10

A. Overbreadth of Ban on “All Expressive

and Symbolic Conduct Whether Active

gg a 10

B. Overbreadth of Total Ban on Speech on

| 1]

II. THE DECISION BELOW DISTORTS THIS

COURT’S MADSEN DECISION INTO

AUTHORITY TO UPHOLD ORDINANCES

AND STATUTES OF GENERAL

APPLICATION IMPOSING FLAT BANS ON

SPEECH IN TRADITIONAL PUBLIC FORA. .. 13

CAPR 54 whores we net ee eee I ee eee 14

APPENDICES:

A. Decision of U.S. Court of Appeals for the Ninth

Circuit (Aug. 11, 1998) (reversing preliminary

injunction against pertinent—portion—of————

chmblemged GIGiMNCe) 6 ok oe ee eee cess la

B. Order of U.S. District Court for the Central

District of California (May 24, 1994) (denying

preliminary injunction against challenged

OOD ap hbo oo ces tae ane en Sa kee es 8a

C. Order of U.S. District Court for the Central

District of California (March 15, 1995) (grant-

ing renewed motion for preliminary injunction

against challenged ordinance) ............... 20a

D. Order of U.S. Court of Appeals for the Ninth

Circuit (Nov. 22, 1995) (vacating preliminary

injunction and remanding) .................. 56a

E. Order of U.S. District Court for the Central

District of California (July 16, 1996) (reissuing

preliminary injunction against pertinent portion

of challenged ordimance) ...... 22.6 csccsccee 58a

Order of U.S. Court of Appeals for the Ninth

Circuit (Oct. 26, 1998) (staying mandate

pending petition for writ of certiorari) ......... 77a

Order of U.S. Court of Appeals for the Ninth

Circuit (Oct. 27, 1998) (ordering suspension of

enforcement of pertinent portion of challenged

ordinance pending Supreme Court disposition) .. 79a

Order of U.S. Court of Appeals for the Ninth

Circuit (Oct. 6, 1998) (denying rehearing)...... 82a

U.S. Const. amends. I, XIV ................. 84a

Santa Barbara Ordinance No. 4812 (challenged

| ar ancy) 86a

TABLE OF AUTHORITIES

Cases

Board of Airport Comm'rs v. Jews for Jesus, Inc.

OBE A POP CAPPED oc eee eA nee ee

City of Houston v. Hill

ee A eS IPED eke bx chee eee ee ened 6

Community for Creative Non-Violence v. Turner

Sos 00 oo! CA, CB. TORO 6 ke ob iva es cawen eas 1]

Edwards v. City of Santa Barbara

No. CV 94-2243 RG (JRx) (C.D. Cal. May 24, 1994) 1,4

Edwards y. City of Santa Barbara

$83 F. Supp. 1379 (C.D. Cal. 1995) ........ 1,4, 6, 7, 11

Edwards v. City of Santa Barbara

FOE .26 1271 CO, FS) hve sist cseteceen ee 1,7

Edwards v. City of Santa Barbara

No. CV 94-2243 RSWL (C.D. Cal. July 16, 1996) ... 2,7

Edwards v. City of Santa Barbara

150 F.3G 1213 OG Ce. 1996) wks kc een eee

Edwards v. City of Santa Barbara

No. 95-56790 (9th Cir. Oct. 6, 1998) ............. 2,8

Edwards v. City of Santa Barbara

No. 95-56790 (9th Cir. Oct. 26, 1998) ............... 8

Vii

Edwards v. City of Santa Barbara

No. 95-56790 (9th Cir. Oct. 27,1998) ............... 8

Madsen v. Women’s Health Center. Inc.

PE Bi FAR NUD oe cas ho lc cee i, 8, 13, 14

Sabelko v. City of Phoenix

68 F.3d 1169 (9th Cir. 1995)

vacated, 519 U.S. 1144 (1997)

on remand, 120 F.3d 161 (9th Cir. 1997) ............. 7

Schenck v. Pro-Choice Network of Western New York

nt OP ps. San 8,14

Schneider v. State

TR Ned. keene eR ua soy 12

Thornhill v. Alabama

Fe Te oe, ah eee ee 14

United States v. Grace

Rr Ee ig teh eee eee 12, 14

Ward v. Rock Against Racism

OP PEE CEE es Fo oe Oe ee ee ee 5

Constitutional Provisions

AE, WON ook ocak cece ee l, passim

i SA MO SREY 3 oe ec ee ee i, 2

Vill

Statutory Provisions

Be Ee SRP ON ees ee eee 2

MIB GAG i Generis ee ee 4 |

EUR. SIS 2c ree 4

Rules ‘

U.S. Supreme Court Rule 29.6 . oc ccc haces sswees i !

Ordinance

City of Santa Barbara Ordinance No. 4812 ............. Y.

Santa Barbara Municipal Code § 9.99.010 ... 3,4,9,11, 12

Santa Barbara Municipal Code § 9.99.030 ........... 3,4

Miscellaneous

D. Avila, “Abortion ‘squelch zone’ too broadly drawn,”

The Boston Globe (July 22, 1998), p.23. ............ 13

No. 98-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

VICKIE L. EDWARDS and KATHLEEN ROSE MCCAULLEY.

Petitioners,

THE City OF SANTA BARBARA.

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Vickie L. Edwards and Kathleen Rose

McCaulley, plaintiffs-appellees in the court below. respectfully

petition this Court for a writ of certiorari to the United States

Court of Appeals for the Ninth Circuit in the case at bar.

DECISIONS BELOW

All decisions in this case to date are entitled Edwards v

City of Santa Barbara. The decision of the district court

initially denying a preliminary injunction is unreported. App. B.

The decision of the district court granting the renewed motion

for preliminary injunction is reported at 883 F. Supp. 1379

(C.D. Cal. 1995). App. C. The order of the Ninth Circuit

vacating and remanding is noted at 70 F.3d 1277 (9th Cir.

1995). App. D. The decision of the district court reissuing the

preliminary injunction in pertinent part is unreported. App. E.

The decision of the Ninth Circuit reversing in pertinent part is

reported at 150 F.3d 1213 (9th Cir. 1998). App. A. The order

of the Ninth Circuit denying rehearing is unreported. App. H.

JURISDICTION

The United States Court of Appeals for the Ninth Circuit

issued the decision for which petitioners seek review on August

11, 1998. The Ninth Circuit denied rehearing on October 6,

1998. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND ORDINANCE

The text of the First and Fourteenth Amendments to the

United States Constitution are set forth in Appendix I. The text

of Ordinance No. 4812 of the City of Santa Barbara is set forth

in Appendix J.

STATEMENT OF THE CASE

Petitioners Vickie L. Edwards and Kathleen Rose

McCaulley engage in a variety of expressive activities --

distributing leaflets, one-on-one verbal counseling, carrying

signs -- on public sidewalks in the vicinity of abortion facilities

in Santa Barbara, California. Petitioners have at all times

conducted themselves in a peaceful and law-abiding manner.

On May 18, 1993, the respondent City of Santa Barbara

(“City”) adopted the ordinance challenged in the case at bar.

The ordinance (“Ord.”) which the City enacted contains the

following “demonstration ban” provision (or “driveway

provision’’), which petitioners challenge:

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No person shall conduct any demonstration activity

within the driveway area or within eight (8) feet of the

driveway area of a health care facility or place of

worship, provided however that it shall be lawful for a

person to use a public sidewalk or street right-of-way

adjacent to a health care facility or place of worship in

order to traverse a driveway area.

Ord. § 9.99.030 (emphasis added).' The ordinance defines

'“Driveway area” is defined as:

DRIVEWAY AREA. That portion of a street right-of-way

(including a sidewalk) generally improved for the purposes of

providing vehicular access to adjacent private property. At the

request of a health care facility or place of worship, the City of

Santa Barbara will indicate (such as through the use of painted

lines) the perimeter boundaries of a driveway area.

Ord. § 9.99.010(E). “Health care facility” is defined as:

HEALTH CARE FACILITY. Any medical or health facility,

hospital or clinic within the City which is licensed under State law

or any building, office or other place within the City regularly used

by any health care provider licensed under State law to provide

medical, nursing, or health care or advice to patients. A heaith care

facility includes but is not limited to any buildings, appurtenances

and grounds, entrances, parking facilities, and driveways.

Ord. § 9.99.010(B). “Place of worship” is defined as:

Ord. § 9.99.010(C).

PLACE OF WORSHIP. A place of worship includes but is not

limited to any buildings, appurtenances and grounds, entrances.

parking facilities, and driveways where persons gather to worship

when the same are used solely and exclusively for religious

worship.

“demonstration activity” as:

DEMONSTRATION ACTIVITY. Ali expressive and

symbolic conduct, whether active or passive, which shall

include, but not be limited to, protesting, picketing,

distributing literature, and engaging in oral or silent

protest, education or counseling activities.

Ord. § 9.99.010(D) (emphasis added). The “driveway area”

where the demonstration ban applies includes the public

sidewalk crossing a driveway. Ord. § 9.99.010(E). By its terms,

the demonstration ban covers the “driveway area” itself, plus the

public sidewalk within eight feet of that driveway in any

direction. Ord. § 9.99.030. Hence, the ordinance bans

“demonstration activity” along stretches of sidewalk extending

some twenty-five to thirty feet or more in length, depending

upon the width of the “driveway area.”

Petitioners filed suit in the United States District Court

for the Central District of California, challenging the

constitutionality of the demonstration ban’ and alleging that the

ban chilled and restricted their expressive activities. The district

court had jurisdiction under 28 U.S.C. §§ 1331, 1343.

The district court initially denied petitioners’ motion for

a preliminary injunction. App. B. Upon consideration of

petitioners’ renewed motion, the district court enjoined

enforcement of the demonstration ban. App. C.

*Petitioners also brought a constitutional challenge to another part of the

Santa Barbara Ordinance imposing a “floating buffer zone” restriction.

Petitioners prevailed on that issue in both the district court and the Ninth

Circuit. See App. A, C, E. Thus, that aspect of petitioners’ lawsuit is not

pertinent here.

In its analysis, the district court explained that, under the

demonstration ban (which the district court called the

“Driveway Provision”),

all expressive activity, whether peaceful or harassing.

vocal or silent, is prohibited within the eight-foot zone

on either side of the driveway leading to the clinic. [The

city has] thus banned all forms of expressive activity,

even silent prayer or expressive t-shirts, from the

driveway areas of every medical facility and place of

worship in Santa Barbara.

It is axiomatic in American constitutional

jurisprudence that the state cannot prohibit al! protected

forms of expressive activity ina public forum. See, e.g.,

Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569,

575 (1987) (“We think it obvious that such a ban cannot

be justified even if LAX were a nonpublic forum

because no conceivable governmental interest would

justify such an absolute prohibition of speech”)... .

The Driveway Provision effectively creates a First

Amendment “free zone” in which no one may engage in

expressive activity of any kind. See Jews for Jesus, 482

U.S. 569, 574. Such a blanket ban necessarily prohibits

more expressive conduct than is necessary to achieve the

purpose of the Ordinance. Like the resolution at issue in

Jews for Jesus, the Driveway Provision “prohibits even

talking and reading, or the wearing of campaign buttons

or symbolic clothing” within eight feet of every

driveway leading up to every medical tucility and place

of worship in Santa Barbara. /d It also prevents

traditionally favored activities such as leafletting and

handbilling. See Ward [v. Rock Against Racism], 491

U.S. [781,] 799, n. 7 [(1989)] (“[A] ban on handbilling,

of course, would suppress a great quantity of speech that

does not cause evils that it seeks to eliminate”)... .

Edwards v. City of Santa Barbara, 883 F. Supp. 1379, 1389

(C.D. Cal. 1995) (additional citations and footnote omitted).

The district court also pointed out that

the Driveway Provision . . . criminalizes expressive

activity gua expressive activity, without relating such

expression to its effect on impeding access to the clinic.

Such a sweeping ban on protected First Amendment

activity cannot withstand constitutional scrutiny. It is

simply not narrowly tailored to achieve its averred

purpose, the protection of ingress to and egress from

clinics and churches.

Id. at 1390 (footnotes omitted). Finally, the district court

rejected the argument that either a narrow construction or a

selective enforcement of the ordinance could somehow rescue

its overbroad provisions:

It is axiomatic . . . that Santa Barbara cannot avoid the

overbreadth problem by narrowing the problematic

provision through selective enforcement:

It would certainly be dangerous if the legislature

could set a net large enough to catch all possible

offenders, and leave it to the courts to step inside

and say who could be rightfully detained, and

who should be set at large.

[City of Houston v.} Hill, 482 U.S. [451,] 466 [(1987)]

.... According the policy “unconstitutional discretion

in enforcement” does not save an overbroad ordinance.

Id...

In this case, the Driveway Provision fails to pass

muster under the First Amendment because it

incorporates the constitutional infirmity of the

Ordinance’s overbroad definition of demonstration

activity and thereby criminalizes the entire universe of

expressive activity. Such overbreadth cannot be saved

by selective enforcement, no matter how well

intentioned.

Edwards, 883 F. Supp. at 1390 (additional citations omitted).

The City appealed, and the Ninth Circuit vacated and

remanded in light of its own erroneous -- but at the time, not yet

corrected -- decision in another case.’ See Edwards v. City of

Santa Barbara, 70 F.3d 1277 (9th Cir. 1995). App. D.

On remand, the district court again enjoined enforcement

of the ban on “demonstration activity.” App. E. The City

appealed once more. This time, the Ninth Circuit -- in the

decision from which petitioners now seek review in this Court --

reversed on the merits and upheld the demonstration ban.

Edwards v. City of Santa Barbara, 150 F.3d 1213 (9th Cir.

1998). App. A.

In a short per curiam opinion, the Ninth Circuit gave

only cursory analysis to the issues. With a three-sentence

paragraph, the court of appeals brushed aside constitutional

objections to the demonstration ban. 150 F.3d at 1216. The

court of appeals relied upon this Court’s recent decisions

*In that other case, the Ninth Circuit, after remand from this Court,

ultimately reversed itself. See Sabelko v. City of Phoenix, 68 F.3d 1169 (9th

Cir. 1995), vacated, 519 U.S. 1144 (1997), on remand, 120 F.3d 161 (9th

Cir. 1997).

involving speech-restrictive injunctions, not ordinances, in

Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994),

and Schenck v. Pro-Choice Network of Western New York, 519

U.S. 357 (1997). Observing that this Court “has upheld much

larger fixed buffer zones using the more rigorous standard for

content-neutral injunctions,” the Ninth Circuit concluded that

“{ajlgainst this background, the driveway provision [i.e.,

demonstration ban] does not sweep too broadly.” Edwards, 150

F.3d at-1216 (emphasis added).

The Ninth Circuit did not explain why the standard this

Court fashioned for analyzing injunctions against proven

malefactors had any relevance to an ordinance restricting the

free speech of the public at large. The Ninth Circuit likewise

did not state whether it believed that Madsen and Schenck had

overruled sub silentio this Court’s precedents invalidating

ordinances and statutes imposing bans on peaceful expressive

activity along public sidewalks. Indeed, the court below simply

ignored these precedents regarding ordinances and statutes.

Finally, the court of appeals made no attempt to reconcile the

ban on the universe of expressive activity contained in the Santa

Barbara ordinance with this Court’s decision in Jews for Jesus

invalidating a ban of similar overbreadth.

Petitioners filed a timely petition for rehearing, which

the Ninth Circuit denied on October 6, 1998. App. H.

Petitioners filed in the }Jinth Circuit a timely motion to

stay the mandate pending the filing of a petition for certiorari.

The Ninth Circuit granted that motion on October 26, 1998.

App. F. Pursuant to the stipulation of the parties, the Ninth

Circuit then specifically ordered that the City suspend

enforcement of the demonstration ban (a.k.a. “driveway

provision”) until “a final determination by the United States

Supreme Court is made.” App. G.

REASONS FOR GRANTING THE WRIT

This case presents a constitutional challenge, based upon

the First Amendment right to free speech, to a bizarre anti-

speech ordinance of the City of Santa Barbara. The challenged

provision forbids “demonstration activity,” defined to mean

“fajll expressive and symbolic conduct, whether active or

passive,” including “distributing literature” and “engaging in

oral or silent protest, education or counseling activities,” in

traditional public forum properties (viz., stretches of public

sidewalks). Ord. § 9.99.010(D). (The ordinance in its entirety

is attached as Appendix J.) The “demonstration ban” provision

of the challenged ordinance thus bans the universe of expressive

activity on traditional public forum property, namely,

sidewalks. The ordinance contains no exception for any speech

whatsoever, banning even consensual expression. No-

conceivable interest can justify this overbroad restriction on

pure speech.

The Ninth Circuit has set itself in conflict with the basic

premises of First Amendment adjudication. The decision below

is simply revolutionary; it upholds an ordinance imposing a flat

ban on the universe of expressive activity along public

sidewalks.

This startling decision merits review for numerous

reasons, including those set forth below.

iL. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF BOTH THIS COURT AND THE

U.S. COURT OF APPEALS FOR THE D.C.

CIRCUIT.

A. Overbreadth of Ban on “All Expressive and

Symbolic Conduct Whether Active or

Passive”

The incredibly overbroad definition of “demonstration

activity” in the Santa Barbara ordinance places the decision

below in direct conflict with this Court’s treatment ofa similarly

sweeping ban on speech:

On its face, the [restriction] at issue in this case reaches

the universe of expressive activity, and, by prohibiting

all protected expression, purports to create a virtual

“First Amendment Free Zone” .... The [restriction]

does not merely regulate expressive activity . . . that

might create problems such as congestion or the

disruption of the activities of [others]. Instead, the

[restriction] . . . prohibits even talking and reading, or

the wearing of campaign buttons or symbolic clothing.

Under such a sweeping ban, virtually every individual

who enters [the area covered by the restriction] may be

found to violate the [restriction] by engaging in some

“First Amendment activity.” We think it obvious that

sucha ban cannot be justified even if [the relevant area]

were a nonpublic forum because no conceivable

governmental interest would justify such an absolute

prohibition of speech.

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569,

576-75 (1987) (emphasis added in part; some editing marks

omitted).

The decision below also conflicts with the decision of

the U.S. Court of Appeals for the D.C. Circuit in Community for

Creative Non-Violence v. Turner, 893 F.2d 1387 (D.C. Cir.

1990). In Turner, the D.C. Circuit reviewed a constitutional

challenge to a regulation imposing, inter alia, a permit

requirement and number restrictions on “free speech activities”

in the Washington, D.C. Metro system. /d. at 1389 (setting

forth regulation). The D.C. Circuit held that the regulation’s

“extremely broad definition of free speech activities,” id at

1394, rendered the regulation unconstitutional as not narrowly

tailored to any legitimate interests. Jd. at 1392, 1394; see also

id. at 1397 (Williams, J., concurring in judgment) (“Instead of

identifying problem conduct, [defendant in its regulation]

started with the entire universe of free speech activity and then

applied some limitations. As a result, it swept up far more

speech than posed any real concern’’).

In the present case, by contrast, the Ninth Circuit saw no

constitutional defect with a ban on “[aJll expressive and

symbolic conduct, whether active or passive, [including] oral or

silent protest, education or counseling activities.” Ord. §

9.99.010(D).

B. Overbreadth of Total Ban on Speech on

Public Sidewalk

By imposing a total ban on speech in segments of a

public sidewalk, the City has pro tanto repealed the public

forum status of those sidewalks. The district court did not miss

this point. In a well-reasoned discussion, Judge Richard A.

Gadbois, Jr., observed that it is “axiomatic in American

constitutional jurisprudence that the state cannot prohibit all

protected forms of expressive activity in a public forum.”

Edwards v. City of Santa Barbara, 883 F. Supp. 1379, 1389

(C.D. Cal. 1995) (citing cases). As this Court has explained,

Sidewalks, of course, are among those areas of public

property that traditionally have been held open to the

public for expressive activities and are clearly within

those areas of public property that may be considered,

generally without further inquiry, to be “public forum”

property. ... [Government] may not by its own ipse

dixit destroy the “public forum” status of streets and

parks which have historically been public forums.

United States v. Grace, 461 U.S. 171, 179-80 (1983) (editing

marks altered).

The statute overturned in Grace, while broad, was not so

broad as the Santa Barbara ordinance challenged herein. The

Grace statute did “not, for example, purport to prohibit any ora!

expression, on any subject.” /d. at 181 n.10. The Santa Barbara

ordinance, by contrast, bans even oral and silent expression. See

§ 9.99.010(D).

As Grace demonstrates, the abrogation of free speech

rights in a traditional public forum is no less unconstitutional

just because the restriction only abolishes a small segment of the

available public forum property. /d. at 179 (“small geographical

area”). ‘“[O]ne is not to have the exercise of his liberty of

expression in appropriate places abridged on the plea that it may

be exercised in some other place.” Schneider v. State, 308 U.S.

147, 163 (1939).

Il. THE DECISION BELOW DISTORTS THIS

COURT’S MADSEN DECISION INTO

AUTHORITY TO UPHOLD ORDINANCES AND

STATUTES OF GENERAL APPLICATION

IMPOSING FLAT BANS ON SPEECH IN

TRADITIONAL PUBLIC FORA.

Perhaps most distressing and dangerous was the legal

theory which the Ninth Circuit employed. By erroneously

transplanting precedents governing court injunctions into the

field of state and municipal legislation, the Ninth Circuit

opened the door to widespread enactment of statutes and

ordinances imposing flat bans on speech in traditional public

fora. The court below reasoned as follows: Madsen v. Women’s

Health Center, Inc., 512 U.S. 753 (1994), held injunctions to a

stricter standard than ordinances. Madsen upheld the

constitutionality of a /arge “fixed buffer zone,” on a public

sidewalk, under the stricter standard for injunctions. Therefore.

the court below concluded, the smaller zone at issue here a

fortiori passes the relatively Jower standard for reviewing the

constitutionality of ordinances. App. 5a-6a.

This syllogism is false and must be forcefully and

forthrightly rejected before it spawns a rash of similar

decisions.*

“These concerns are not purely hypothetical. In the court below. over

three dozen municipalities as amici stated that at least some of them already

“have enacted or would like to enact ordinances similar to the Santa Barbara

ordinance,” Br. of Amici Curiae the City and County of San Francisco, et al.

at 3, Edwards v. City of Santa Barbara, No. 95-56790 (9th Cir. filed Dec.

2, 1996). See also D. Avila, “Abortion ‘squelch zone’ too broadly drawn,”

The Boston Globe (July 22, 1998), p. 23 (Massachusetts state legislature

considering bill which would create statutory 25-foot buffer zones around

abortion facilities).

An injunction by its nature is limited to particular

malefactors and thus, while held to a stricter standard of review,

nonetheless can “sentence” adjudged wrongdoers to restrictions

that would simply be unthinkable if imposed upon the innocent

public at large. For example, courts sometimes impose “no

contact” injunctive orders in certain domestic disputes or cases

of “stalking.” Such fact-specific, defendant-specific, anti-

speech directives could never pass muster as general speech-

restrictive ordinances. Therefore, the constitutionality of an

injunctive provision issued in a particular case does not logically

dictate the constitutionality of a /egis/ative restriction of similar

-- or even more modest -- dimensions applied to the general

public.

Under the faulty reasoning of the court below, this

Court’s opinions in Madsen and in Schenck v. Pro-Choice

Network of Western New York, 519 U.S. 357 (1997), which

upheld speech-free “buffer zones” in injunctions issued against

those found to have engaged in repeated misconduct, justify a

fortiori the imposition of similar zones against the general

public by means of ordinances and statutes. This is flatly

inconsistent with Supreme Court precedent. E£.g., Grace;

Thornhill v. Alabama, 310 U.S. 88 (1940). This reasoning

would in effect sound the death knell for the rights to leaflet,

picket, and even speak, on public sidewalks.

CONCLUSION

The decision below squarely conflicts with established

precedents of this Court. Just as important, the decision below

dramatically distorts another whole line of precedent -- this

Court’s decisions regarding speech-restrictive injunctions --

thereby placing those precedents on a collision course with the

public forum doctrine.

Sa TALS es ceed aet koe pe jah

abe iccacite tated a cnt

This Court should grant the present petition for a writ of

certiorari.

Jay Alan Sekulow*

Walter M. Weber

THE AMERICAN CENTER FOR

LAW AND JUSTICE

1000 Thomas Jefferson St.,

N.W., Suite 609

Washington, DC 20007

(202) 537-2273

Benjamin W. Bull

THE AMERICAN CENTER FOR

LAW AND JUSTICE

7819 E. Greenway Road,

Suite 6

Scottsdale, AZ 85260

(602) 596-0821

*Counsel of Record

Respectfully submitted,

Kevin H. Theriot

THE AMERICAN CENTER FOR

LAW AND JUSTICE

415 Beckrich Road,

Suite 210

Panama City, FL 32407

(850) 236-0098

Andrew W. Zepeda

Brendan F. Macaulay

9107 Wilshire Boulevard,

Suite 800

Beverly Hills, CA 90210

(310) 274-8700

Attorneys for Petitioners

December 23, 1998

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APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-56790

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

Vv.

CITY OF SANTA BARBARA,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Richard A. Gadbois, Jr., District Judge, Presiding

No. 96-56262

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees.

Vv.

CITY OF SANTA BARBARA,

Defendant-Appellant.

No. 96-56558

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CiTyY OF SANTA BARBARA,

Defendant-Appellant.

Appeals from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

OPINION

Argued and Submitted November 3, 1997

Pasadena, California

Filed August 11, 1998

Before: JAMES R. BROWNING, MELVIN BRUNETTI and

FERDINAND F. FERNANDEZ, Circuit Judges.

PER CURIAM

Vickie Edwards and Kathleen McCaulley, two “sidewalk

counselors,” challenged an ordinance of the City of Santa

Barbara, California limiting demonstration activity near health

care facilities and places of worship, passed after a protracted

history of harassment by anti-abortion protestors. The ordinance

prohibits demonstration within eight feet of entrances to medical

facilities or places of worship, and permits a patient or

worshiper to create an eight foot “floating buffer zone” or

“bubble” within one hundred feet of such entrances by asking

the demonstrator to withdraw.' The district court preliminarily

enjoined enforcement of the ordinance. We remanded for

reconsideration in light of Sabelko v. City of Phoenix, 68 F.3d

'See Section 9.99.030 (“the driveway provision” or “fixed buffer

zone” prohibiting demonstration within eight feet of entrances to medica!

clinics or places of worship); see also Section 9.99.020 (the “bubble” or

“floating buffer zone” permits people within one hundred feet of such

entrances to request that anyone who approaches them “withdraw to a

distance of . . . eight feet”).

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1169 (9th Cir.1995). On remand, the district court enjoined

three of the four challenged provisions, upholding only the

floating buffer zone within one hundred feet of a health care

facility. The plaintiffs successfully moved for supplemental fees

and costs. The City appealed the grant of the injunction and the

award of fees and costs.

In the interim, the Supreme Court vacated our decision

in Sabelko and remanded in light of Schenck v. Pro-Choice

Network of Western New York, 117 S.Ct. 855 (1997). On

remand, we held the Phoenix floating buffer zone provision

unconstitutional and enjoined its enforcement. See Sabelko v.

City of Phoenix, 120 F.3d 161, 165 (9th Cir.1997).

Guided by Schenck and Sabelko, we affirm the district

court’s preliminary injunction enjoining enforcement of the

floating buffer zone provision. However, we conclude the fixed

driveway provisions are a reasonable time, place, and manner

restriction, and vacate the preliminary injunction of their

enforcement.

Ordinance 4812 prohibits all demonstration activity

within a specified distance of health care facilities and places of

worship without regard to the message conveyed.” Because it is

content neutral, the ordinance passes constitutional muster if it

is “narrowly tailored to serve a significant government interest

and . . . leave[s] open ample alternative channels of

communication.” Frisby v. Schultz, 487 U.S. 474, 482 (1988)

*It is undisputed that the ordinance prohibits speech in a traditional

public forum. See, e.g., Frisby v. Schultz, 487 U.S. 474, 479-82 (1988).

(internal quotations omitted).’ Although the regulation “must

be narrowly tailored to serve the government's legitimate,

content-neutral interests[,]. . . it need not be the least restrictive

or least intrusive means of doing so.” Ward v. Rock Against

Racism, 491 U.S. 781, 798-99 (1989).*

A single legitimate government interest may be

sufficient to sustain a content-neutral regulation. See, e.g,

Heffron v. Int'l Soc 'y for Krishna Consciousness, Inc.,452 U.S.

640, 650 n. 13 (1981) (declining to consider second and third

interests advanced by the state to justify a time, place, and

manner restriction because the first adequately supported the

regulation). The City contends three valid interests are served

by the ordinance: (1) protecting persons seeking medical

Plaintiffs argue the ordinance was designed to suppress their

viewpoint. See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) (local ordinance struck down because of viewpoint bias

reflected in the legislative history). However, an ordinance may be

motivated by a concern about the effects of speech without running afoul of

the First Amendment. See City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47-49 (1986). The fact that a majority of those prosecuted under

the ordinance have been anti-abortion protesters does not permit an

automatic inference of discriminatory purpose in its adoption.

The plaintiffs also argue that the ordinance has been selectively

enforced against them, citing the deposition responses of two police officers

to hypothetical questions. This argument lacks force, given the small

number of citations issued by these two officers and the fact that thirty-one

other officers issued the remaining citations. Moreover, the training video

clearly shows the Deputy City Attorney explaining that all demonstration

activity is prohibited regardless of the “side.”

“See also Madsen v. Women’s Health Center, Inc., 512 U.S. 753,

764-65 (1994) (announcing a newly heightened standard for content-neutral

injunctions, but restating the Ward test for legislative enactments of general

applicability).

services or engaging in worship from harassment or

intimidation; (2) ensuring access to medical facilities and places

of worship; and (3) ensuring traffic safety. The Supreme Court

has held these interests sufficient. See Schenck, 117 S.Ct. at 866

(government interests in “ensuring public safety and order,

promoting the free flow of traffic on streets and sidewalks.

protecting property rights, and protecting a woman’s freedom to

seek pregnancy-related services” are “certainly significant

enough to justify an appropriately tailored injunction to secure

unimpeded physical access to the clinics”). The City must also

demonstrate that the ordinance is “narrowly tailored” to serve

these valid interests and “leave[s] open ample alternative

channels of communication.” Ward, 491 U.S. at 791

I].

In district court, the plaintiffs-appellees successfull)

challenged the driveway provisions creating a fixed buffer zone

within eight feet of the entrances to medical facilities and places

of worship, as well as the floating buffer zone in connection

with places of worship.

1. Driveway provisions.

Recent Supreme Court precedent has upheld much larger

fixed buffer zones using the more rigorous standard for content-

neutral injunctions. See Madsen, 512 U.S. at 770; Schenck, 117

S.Ct. at 868. Against this background, the driveway provision

*The district court upheld the floating buffer zone within one

hundred feet of a health care facility and the plaintiffs have not appealed that

decision. On October 6, 1997, in light of our decision upon remand from the

Supreme Court in Sabelko, the district court granted plaintiffs’ renewed

motion for preliminary injunction barring enforcement of the floating buffer

zone as applied to health care facilities.

does not sweep too broadly. A distance of eight feet is not too

great to limit most forms of protest, and conversation is easily

possible at that distance. The provision is narrowly tailored tc

the City’s objectives: it ensures access to health care facilities

by providing a clear, easily enforced zone of protection for the

driveway entrances; facilitates the free flow of traffic by

preventing protesters from blocking entrances; and furthers the

City’s interest in public safety and prevents direct “face to face”

confrontations that could escalate into violence by physically

separating demonstrators from persons entering the driveway

areas. See Schenck, 117 S.Ct. at 866.

Although the driveway provision in connection with

places of worship is unrelated to the City’s interest in protecting

patients in need of medical care, it is narrowly tailored to the

City’s interest in ensuring access to religious worship. It

permits ample alternative avenues of communication, by placing

no limit on speech or expressive activity outside a narrow zone.

2. Floating buffer zone.

With respect to the floating buffer zone, our decision in

Sabelko, invalidating an eight-foot buffer zone on the grounds

that it was not narrowly tailored, is dispositive. Like the

provision challenged here, the invalidated buffer zone could be

invoked within one hundred feet of a clinic. Unlike the

ordinance challenged in Sabelko, Santa Barbara’s ordinance has

a severability clause. We, therefore, need not invalidate the

entire ordinance. See Sabelko, 120 F.3d at 165.

TI.

On appeal, the plaintiffs have prevailed on only one of

their challenges to the ordinance. We therefore vacate the

original award and the supplemental award of attorneys’ fees

and costs and remand for redetermination of the amount due.°

The district court should arrive at a reasonable fee award by

identifying the specific hours expended on the floating buffer

zone provision or by reducing the overall award to reflect the

plaintiffs’ limited success. See Texas State Teachers Ass'n v

Garland Indep. School Dist., 489 U.S. 782, 791-92 (1989).

Each party shall bear its own costs.

REVERSED IN PART; AFFIRMED IN PART:

ATTORNEYS’ FEES AND COSTS VACATED.

°The district court clearly stated the applicable standard for

evaluating Section 1988 awards in its October 24, 1995 order, granting the

plaintiffs’ motion for attorneys’ fees. The supplemental award of fees and

costs was also within the discretion of the district court. In each instance,

the request for fees was supported by billing statements.

APPENDIX B

DER RE PRELIMINARY INJUNCTIODS

AaN

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before this Court, on Monday, May 23, 1994, at ||

Lay] y ( idered the movi 9 and nr) itor sanerT

riaVin¥v Considered tne MOVINY anda O posit On Pape

uments oI counsel, the Ui t nerebdy rules as [It

wards and Kathleen R

{cCaulley bring this action to restrain enforcement of the

provision of Santa Barbara Code Section 9.99.030 that prohibit

emonstration activities’ within certain public sidewalk area

On May 18, 1993, the City of Santa Barbara adopted

Ordinance No. 4812 (also “Ordinance’’), amending

Municipal Code of Santa Barbara by adding a new Chapter 9.99

s .

pertaining to access to public sidewalks within eight feet of t

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driveway area” of a health care facility or place of wor

[he Ordinance provides, in relevant part

9.99.010 Definitions

D. DEMONSTRATION ACTIVITY.

expressive and symbolic conduct, whether active

passive, which shall include, but not be limited

protesting, picketing, distributing literatur

engaging in oral or silent protest, educat

counselling activitie

E. DRIVEWAY AREA. That portion

right-of-way (including a sidewalk) generally imp

for the purposes of providing vehicular ac

idjacent, private property

99.030 Access to Driveway Areas

No_person shall conduct any demonstration acti

within the driveway area or within eight (8) feet of

driveway area of a health care facility or place

worship

inta Barbara Ordinance No. 4812 (empha

P untill Edv ir¢ ind M Ca U

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“pro-life” anti-abortion sidewalk counselors. Declaration of

Vickie Edwards, § 4 (“Edwards Decl.”’); Declaration of Kathleen

Rose McCaulley, § 4 (“McCaulley Decl.”). They challenge the

constitutionality of the underlined portion of section 9.99.030.

alleging that the ordinance deters them from engaging in

expressive activities’ on the sidewalks within eight feet of the

“driveway area” of abortion clinics in Santa Barbara.

Defendants do not dispute plaintiffs’ standing to bring

this action. Although plaintiffs have not been arrested

themselves for violating the Ordinance, they have observed

other sim:larly situated “sidewalk counselors” being arrested for

violating the eight-foot buffer zone, and have been warned by

Santa Barbara police officers. See Edwards Decl., § 13:

McCaulley Decl., { 13. Defendants do not dispute that the

Santa Barbara Police Department has enforced Ordinance No.

4812, including section 9.99.030, since its enactment in 1993.

II. Analysis

As a preliminary matter, this Court notes it is not

necessary to stay this matter pending the Supreme Court’s

decision in Madsen v. Women’s Health Center. Inc.. No. 93-880

(Argued April 28, 1994).

While the opinion to be rendered in Madsen may address

some of the issues raised in this case, the procedural

development of the two cases is quite different. This case

involves an ordinance of general applicability which imposes

‘Among the expressive activities plaintiffs wish to engage in are:

distribution of literature about abortion and abortion alternatives in the form

of informational handbills and leaflets; sidewalk counseling: holding signs

that contain messages or pictures in opposition to human abortion: engaging

in religious prayer. See Edwards Decl., § 11; McCaulley Decl., § 11.

;

lla

criminal penalties for violations. The Madsen case. by contrast,

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.

A. Standard of Review for Preliminary injunction

[he Ninth Circuit’s traditional test for determining

iether to issue a preliminary injunction requires the moving

party to 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-moy Ing 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 ¢ ‘1

1985); Martin v. Int’l Olympic Comm.. 740 F.2d 670, 674-75

(9th Cir. 1984).

More recently, the Ninth Circuit has articulated an

alternative test. Under this test, the moving party must

demonstrate either:

|. Probable success on the merits and the possibility of

irreparable harm; or

The lawsuit raises serious questions and the balanc

“at hardships tips sharply in the movant’s favor.

[2a

Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991).

For the purposes of this motion, this Court evaluates

whether plaintiffs have shown probable success on the merits

and the possibility of irreparable harm.

B. Plaintiffs Have Not Demonstrated that They are

Entitled to Preliminary Relief.

1. 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). In the instant case, plaintiffs assert that Santa

Barbara Code Section 9.99.030 has restricted their First

Amendment liberties by preventing them from engaging in their

education, counseling, prayer and literature distribution

activities within the eight-foot safety zone around the abortion

clinics. Thus, this court is satisfied that they have demonstrated

the possibility of irreparable harm.

2. Likelihood of Success on the Merits.

Whereas plaintiffs have shown the possibility of

irreparable injury if their request for a preliminary injunction is

denied, this Court finds that plaintiffs have not met their second

burden.

The Ordinance is a Reasonable

Time. Place and Manner Restriction

By regulating political speech, Santa Barbara Ordinance

No. 4812 unquestionably implicates the First Amendment. See

City of Houston v. Hill, 482 U.S. 451 (1987) (oral protest rests

aeaieiaeateneitidiniataneeeieataiadel

l3a

at the heart of free speech); United States v. Grace, 461 U.S.

171 (1983) (distribution of literature via leafletting is an

“expressive activity protected by the First Amendment”). As

the Ninth Circuit noted in Portland Feminist Women’s Health

Center v. Advocates for Life. Inc., 859 F.2d 681, 685 (9th Cir.

1988), “[w]hether abortions should be legal is one of the most

hotly contested issues of our day.”

The face of the Ordinance at issue here proclaims it to be

a “necessary time, place and manner restriction,” Ordinance No.

4812, p. 1. The test for regulations that regulate speech in

public fora, such as public sidewalks, is well-established:

. . the government’s ability to permissibly restrict

expressive conduct is very limited: the government may

enforce reasonable time, place, and manner regulations

as long as the restrictions are content-neutral. are

narrowly tailored to serve a significant government

interest. and leave open ample alternative channels of

communication.

United States v. Grace, 461 U.S. 171, 177 (1983) (emphasis

added); Frisby v. Schultz, 487 U.S. 474, 480 (1988). Further,

“strict scrutiny” applies in a case such as this, where there is

regulation of speech activity on governmental property that has

been traditionally open to the public for expressive activity.

U.S. v. Kokinda, 497 U.S. 720, 726 (1990); Perry Educ. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

(1) Content Neutrality

Any law that 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, 120 L. Ed. 2d 101 (1992). In Ward v. Rock Against

l4a

Racism, 491 U.S. 781, 791 (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.”

Defendants assert that the disputed code section 1s

content- and viewpoint-neutral because it “applies to all

demonstration activity regardless of viewpoint or content,

without any room for subjective enforcement based on an

interpretation or normative evaluation of the ‘demonstration

activity’ or even the viewpoint of the target of the speech.”

Defendants Memo., p. 19. The asserted reason for its adoption

is that “existing law does not adequately protect . . . access to

health care facilities.” Ordinance No. 4812, p.2. At the hearing

on the motion, defendants’ counsel argued that among the

citizens cited for violation of the Ordinance was a Planned

Parenthood volunteer on the “pro-choice” side of the debate.

Plaintiffs argue that the challenged restriction is content-

based because it is intended to shield abortion-bound women

and abortion facility personnel from the impact of offensive and

emotionally upsetting anti-abortion speech. Plaintiff's Reply

Memo., p. 8. Plaintiffs contend that by its own terms, the Santa

Barbara Ordinance was adopted to protect persons from the

‘emotional effects created by such harassing activities .. .”

Ordinance No. 4812, p. 1, making it a content-based restriction.

See Forsyth County, 112 S. Ct. at 2403 (a “[l]istener’s reaction

to speech is not a content neutral basis for regulation”); R.A.V.

v. St. Paul, Minn., 112 S. Ct. 2538, 2549 (1992) (speech

restriction cannot be justified because of the “emotive impact on

its audience”’).

However, there is no evidence in the record before this

Court that the councilmembers of Santa Barbara adopted the

challenged restriction because of an anti-abortion animus.

lSa

Plaintiffs have not supplied this Court with any references to

legislative history supporting their assertion that the

government’s purpose was to chill anti-abortion expressive

activities. Moreover, the language of the ordinance indicates

that the City’s councilmembers were predominantly concerned

about safeguarding the rights of persons to enjoy unimpeded

ingress and egress from health care facilities, see Ordinance

4812, p. 1-2, a purpose this Court finds is unrelated to speech

content. Accord, Portland Feminist Women’s Health Center.

859 F.2d at 686. See, Ward v. Rock Against Racism, 491 U.S.

at 791 (“[a] regulation that serves purposes unrelated to the

content of the expression is deemed neutral, even if it has an

incidental effect on some speakers or messages but not others”’)

Given this language and the non-discriminatory enforcement of

the Ordinance, this Court finds that the ordinance is

content-neutral.

(2) Narrowly Tailored to Serve a

Significant Government Interest

Narrowly Tailored

The First Amendment requires that a time, place and

manner restriction be narrowly tailored -- that it “targets and

eliminates no more than the exact source of the ‘evil’ it seeks to

remedy.” Frisby, 487 U.S. at 485 (citation omitted). The

question before this Court is whether a total ban on al!

“demonstration activity” within an eight-foot zone of the

driveway of a health care facility is sufficiently narrow and

precise to survive First Amendment scrutiny.

Plaintiffs assert that the restriction is unconstitutionally

overbroad because “in addition to limiting activities which may

be constitutionally forbidden, it also sweeps within its coverage

speech which is protected by the guarantees of the First

l6a

Amendment.” Plaintiffs’ Memo., p. 11 (citing Gooding v.

Wilson, 405 U.S. 518 (1972); Thornhill v. Alabama, 310 U.S.

88 (1940)). Furthermore, plaintiffs argue, the fact that the

absolute ban of section 9.99.030 is limited to the sidewalk areas

(eight feet) adjacent to driveways is not sufficient to make it

narrowly tailored under the Ninth Circuit’s decision in Gerritsen

v. Los Angeles, 994 F.2d 570 (9th Cir.), cert. denied, 114 S. Ct.

306 (1993).

In Gerritsen, the city passed an ordinance banning all

handbill distribution in certain “blue line” areas of a public park.

The Court acknowledged that “{w]hile the ban is narrow in its

reach, in that it affects only those specific areas, courts rarely

have upheld complete bans on a category of First Amendment

expression.” Id. at 577. Finding that “the blue-line areas are

indistinguishable from other parts of the park,” and that the city

had produced no evidence “that Gerritsen’s handbill distribution

interfered with operation of these park areas,” the Court held

that a total ban on handbilling was unjustified and substantially

broader than necessary. Id.

Gerritsen is distinguishable from this case, however.

because defendants have identified an area which is obviously

different than other areas around the abortion clinic; they have

demarcated what is essentially an eight-foot safety zone around

the clinic’s driveway, with the aim of protecting “the rights of

persons seeking to use health care facilities . . . to be free from

direct confrontation, hindrance, harassment, intimidation and

harm.” Ordinance No. 4812, p. 2. Furthermore, defendants have

shown that “demonstration activities” within the eight-foot zone

interfere with the operation of abortion clinics, by e.g., blocking

patients’ access to the clinic and “shaking up” patients to a

degree that may hinder surgical and other medical procedures.

See Declaration of Margaret A. Connell, § 5-6, Defendants’

Exhs. 105, 106.

17a

Furthermore, this Court is persuaded by the Ninth

Circuit’s decision in Portland Feminist Women’s Health Center.

which held that a portion of an injunction setting up a “free

zone” that extends twelve-and-a-half feet to the right and the left

of the front door of a hospitai and from the front door to the

curb was sufficiently narrowly tailored to pass constitutional

muster. 859 F.2d at 686.

Significant Government Interest

This Court also finds that the City of Santa Parbara had

a significant government interest in enacting the disputed

restriction. The Ordinance itself states that “provision of and

access to health care services . . . are critically important to the

public health, safety and welfare . . . [and] persons attempting to

access or depart from health care facilities . . . have been

particularly subject to harassing or intimidating activity .. .”

Ordinance No. 4812, p. 1. The Ninth Circuit has recognized

that the government has a significant interest in ensuring

unimpeded access to needed medical services. See Portland

Feminist Women’s Health Center, 859 F.2d at 686 (“We also

find that the interest sought to be vindicated is a significant

government interest. . . . [The government has an] interest in

protecting the ability of the clinic to provide medical services

free from interference that may endanger the health and safety

of its patients’’).

Furthermore, defendants assert, and this Court agrees,

that the government has a substantial interest in protecting

patients’ right to privacy as guaranteed by the United States and

California Constitutions. See Roe v. Wade, 410 U.S. 113

(1973) (the nght of privacy includes the right to an abortion):

Feminist Women’s Health Center v. Blvthe, 17 Cal. App. 4th

1543, 22 Cal. Rptr. 2d 184, 192 (1993) (exclusion of

antiabortion activities within a “speech free zone” serves

18a

patients’ privacy interests); Chico Feminist Women’s Heath

Center v. Scully, 208 Cal. App. 3d 230, 244, 256 Cal. Rptr. 194

(1989) (“[a]rticle I, section I of the California Constitution

expressly makes the pursuit and obtaining of privacy an

‘inalienable right’).

In sum, this Court finds that the eight-foot “no

demonstration activity” zone is sufficiently narrowly tailored to

vindicate the City’s significant interests.

(3) Ample Alternative Channels for

Communication

Lastly, plaintiffs assert that the total ban on the use of the

sidewalks adjacent to an abortion facility’s “driveway area” fails

to allow for ample alternative-avenues of communication.

Forsyth County, 112 S.Ct. at 2401; Frisby, 487 U.S. at 481.

Under the Supreme Court's test, a restriction is invalid if the

restricted forum constitutes a “uniquely valuable or important

mode of communication.” Members of City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 (1989).

Plaintiffs argue that it is “self-evident that the sidewalks

within proximity to the persons sought to be accessed are

‘uniquely valuable.’” Plaintiffs’ Memo., p. 16. Plaintiffs

complain that the eight-foot distance restriction requires them to

yell or hold up signs, thereby diminishing the persuasive impact

of their expression. See Meyer v. Grant, 486 U.S. 414, 424

(1988) (the Ordinance “restricts access to the most effective,

fundamental, and perhaps economical avenue of political

discourse, direct one-on-one communication . . .”)

While it is true that demonstrators cannot hand leaflets

to patients and others within the eight foot zone, they may

nonetheless engage in all types of oral and visual

19a

communication outside the eight foot perimeter. Moreover, as

defendants amply demonstrate via several photographs,

plaintiffs have numerous opportunities to leaflet and handbill

and in all other ways to engage in expressive activities with

clinic visitors once the visitors step outside the eight foot

perimeter around the driveway. See Defendants’ Exhibits

108-110. In sum, this Court is not persuaded that plaintiffs are

severely hampered in their ability to convey their message by

the challenged restriction.

[II. Conclusion

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that plaintiffs’ Motion for a Preliminary Injunction

is DENIED. This Court finds as a matter of law that the

restriction at issue, Santa Barbara Ordinance No. 4812. section

9.99.030, is content neutral because it bans all demonstration

activities without regard to viewpoint expressed; that it is

narrowly tailored because it restricts speech within only an

eight-foot zone around the driveway of health facilities and

piaces of worship; that it serves a significant government

interest by protecting the rights of patients to enjoy unimpeded

access to medical care and privacy as guaranteed by the United

States and California Constitutions; and that it leaves open

ample alternative channels of communication because it does

not regulate any type of speech activity outside the eight-foot

boundary. Thus, plaintiffs have not demonstrated probable

success on the merits in this case.

iT ISSO ORDERED.

RICHARD A. GADBOIS, JR.

United States District Judge

DATED: May 24, 1994

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APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

s1ytatt

ORDER

Dated March 13, 1995

Filed March 14, 1995

Entered March 15, 1995

[his matter came before the Court on Plaintiffs’ renewed

motion for a preliminary injunction and Defendants’ motion fo1

summary judgment. Plaintiffs’ motion is GRANTED and

Defendants’ is DENIED

2la

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 3

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. The Ordinance

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 passive. . . .” Ordinance at

‘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.

22a

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 §§ 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.

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 §§ 4-10 4

Plaintiffs brought the instant suit for injunctive relief

against the City and members of the Cj ity 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 fora 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.

li. 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

entitled to a judgment as a matter of law. F.R.CP S6(c). A

“Based on these facts, there is no question that plaintiffs hay

standing to make a facial, pre-enforcement challenge to the Ordinance. Se

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 wit!

this opinion, it is hereby VACATED

24a

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. 9] 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 Preliminary Injunction

The Ninth Circuit’s traditional test for determining

whether to issue a preliminary injunction requires the moving

party to demonstrate the following:

l. The moving party will suffer irreparable injury

if the injunctive relief is not granted;

rs The moving party has a substantial likelihood of

succeeding on the merits;

x 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).

More recently, the Ninth Circuit has articulated an

alternative test. Under this test, the moving party must

demonstrate either:

25a

l. Probable success on the merits and the

possibility of irreparable harm: or

: BOF Oe ,

re 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 OVERVIEW OF FIRST AMENDMENT

ANALYSIS

This case presents a facial challenge to atime. 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. &., Ward v. Rock Against Racism. 49]

U.S. 781, 791, 109 S.Ct. 2746. 105 L.Ed.2d 661 (1989).

First, the Court must determine if the Ordinance js

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, 114-18. 112 S.Ct. 501, 116 L-Ed.2d

476, 486-488 (199] ). 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.

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

26a

U.S. 474, 108 S.Ct. 2495, 101 L.Ed2d 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 1 1113 (1982): Broadrick v. Oklahoma.

413 U.S. 601, 93 S.Ct. 2908. 37 L.Ed.2d 830 (1973). Here, this

Court must first determine whether the enactment of the

Ordinance reaches a substantial amount of constitutionally

protected conduct, Hoffman Estates y. 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, 670, 92 L.Ed.2d 840 (1948).

IV. CONTENT NEUTRALITY

Che 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 inv alidity. See Simon &

Schuster, 502 U.S. at 507-09, 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 er 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

legislative intent; neutrality of enforcement: and reference to the

reaction of the audience.

27a

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.°

B. The Legislative Intent

A facially neutral statute is stil] presumptively invalid if

*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 view point

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 Jimited to, protesting, picketing.

distributing literature, and engaging 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.

28a

it is designed to suppress a particular viewpoint. ‘‘The

government may not regulate [expression] based on hostility--or

lavoritism--towards the underlying message expressed.” R.A.V

v. St. Paul, 505 U.S. 377, ---, 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 ifit 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.

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 shov

29a

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 79]. 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 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 i

Plaintiffs cite Sabelko for the Opposite proposition. However. a

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

30a

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 .. . I 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. 520, 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 asked “What can we do to prevent the Church from

opening?” 508 US. 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

[he Supreme Court found that the “pattern we have recited

discloses animosity to Santeria adherents and their religious

practices. ...” Jd. (emphasis added). By contrast, plaintiffs

have not demonstrated that the drafters of the Ordinance here

bore any hostility towards the anti-abortion viewpoint.

3la

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 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.

it 115-1 77 a S01. L16L Ed.2d al 487 (1991) {rkansas

Writer 's Project v. Ragland, 48} U.S. 221.230. 107 S.Ct. 1722.

95 L.Ed.2d 209 (1987): Hialeah, 508 U.S. at ---, 113 S.Ct. 2127

4 L.Ed.2d at 489-490 (1993)

Plaintiffs marshall two arguments in Support of thi

point. First, they show that the vast majority of those cited

er the Ordinance (97 out of 101, as of the time of the

— were anti-abortion protestors. Second. they cite the

eposition of a police officer for the proposition that

eniorcement 1s based on the content of expression. Se:

sition Of Michael Foxen

[he evidence of arrests is inadequate to show biased

enforcement Plaintiffs merely demonstrate that man,

inti-abortion demonstrators have been cited under the

Ordinance. They present no evidence that protestors with

different messages have violated the Ordinance without bein:

urested. In other words, there is no evidence to rebut the

inference that ant u-abor t10N protestors are most often arrested

I 1] tn iT | Sle nost often I) lolation ¢

ira

ID] — . 7 / rant 1 , “a ¢ ce |B — A ;

Plaintiffs second argument IS more troubling. A

out, Officer Foxen testified that application of the

rdinance depends on whether someone jis expressing some

ype Of an opinion in the prohibited zones. Foxen ay canara at

He gives many dz umning examples; for instance, he Says th:

meone playing a country-western song in the zone would not

In violation, but someone singing an anti-abortion sone

uld be. /d. at 51. Moreover, despite defendants’ aroumen

) the contrary, 1t appears that Officer Foxen has put his view

into practice. See, e.g., Foxen Deposition at 29 | person arrested

r “expressing his opinion within the zone”): /d._ at 25 (pers

because “his being in the zone with the Bit

33a

constituted his attempting to express his opinion within a

demonstration-free zone”): /d at 4] (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.°

Plaintiffs also assert that the Ordinance js not

content-neutral because it makes the legality of speech

dependent on the reaction of the audience. It is wel] established

that a “[IJistener’s reactions to speech is not a content neutral

basis for regulation.” Forsyth County, Ga. v. Nationalist

Movement, 505 U.S. 123, ---, 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 garry, 485 U.S. 312,108 S.Ct

1157, 99 L.Ed.2d 333 (1988).

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 w illingness to

tolerate the speech.

"The Court notes that Officer Foxen’s testimony provides many

practical examples of overbroad application of the Ordinance

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protecting the privacy of a “captive audience.” 487 US. at

484-485, 108 S.Ct. 2495, 101 L.Ed.2d 420. This precedent

establishes that the Ordinance’s concern with emotional impact

on listeners does not signify content bias.

Based on these conclusions about content neutrality, this

Court must next determine whether the Ordinance is narrowly

tailored to serve a significant government interest. Ward. 49]

U.S. at 791, 109 S.Ct. at 2746, 105 L.Ed.2d 661.

2. The Bubble Zone Provision

Plaintiffs also argue that the Bubble Zone Provision runs

afoul of the Forsyth County rule on listener reaction because it

makes their right to speak dependent on the listener’s

willingness to hear. This was the rationale of the Sahelko Court,

which found that a nearly identical “bubble zone” was content

biased because it depended on listener reaction. 846 F.Supp at

819.

Faced with a similar “bubble zone” injunction that

prohibited protestors from approaching patients without

consent, the Supreme Court struck down the injunction as

overbroad and declined to engage in content neutrality analysis.

Madsen, 512 U.S. at ---, 114 S.Ct. 2516, 129 L.Ed.2d at 613 n.

6. This Court elects to take the same approach. Because this

Court finds that the Bubble Zone Provision is overbroad. it need

not resolve the difficult issue of its content neutrality.

V. 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, 464-7, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). A law

is narrowly tailored “if it targets and eliminates no more than the

36a

exact source of the ‘evil’ it seeks to remedy.” ’ Frisby, 487 U.S.

at 485, 108 S.Ct. at --- 101 L.Ed.2d 420. quoting Members of

the City Council of the City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 808-810, 104S.Ct. 2118, 80 L.Ed.2d 772

(1984). Plaintiffs contend that the Drivew ay and Bubble Zone

Provisions are not narrowly tailored to serve a significant

governmental interest because they are facially overbroad. In

effect, Plaintiffs contend that both provisions impermissibly

sweep in protected activity beyond that required to serve the

legitimate governmental purpose underlying the ordinance, the

protection of access to medical clinics and places of worship.

A. Overbreadth

Under First Amendment overbreadth analysis, an

individual may challenge a statute on its face because it

threatens others not before the court “who desire to engage in

legally protected expression but who may refrain from doing so

rather than risk prosecution or undertake to have the law

declared oriags invalid.” Brockett v. Spokane Arcades, Inc..

472 U.S. 491, 503, 105 S.Ct. 2794. 86 L.Ed.2d 394 (1985).

In engaging in an overbreadth analysis, this Court must

tread lightly. “Only a statute that is substantially overbroad may

be invalidated on its face.” Hill, 482 U.S. at 458. 107 S.Ct.

2502, 96 L.Ed.2d 398 (1987), citing Ferber, 458 U.S. at 769.

102 S.Ct. 3348, 73 L.Ed.2d 1113. “The requirement that the

overbreadth be substantial arose from our recognition that

application of the overbreadth doctrine is. ‘manifestly, strong

medicine,’ and that ‘there must be a realistic danger that the

Statute itself will significantly compromise recognized First

Amendment protections of parties not before the Court for it to

be facially challenged on overbreadth grounds.” ’ Taxpayers for

Vincent, 466 U.S. at 801, 104 S.Ct. 2118, 80 L.Ed.2d 772. citing

Broadrick, 413 U.S. at 613, 93 S.Ct. 2908, 37 L.Ed.2d 830.

|. The Driveway Provision

Plaintiffs argue that the Drive ‘way Provision is overbroad

because it completely bans all expressive activity on a public

sidewalk, including such traditionally favored activities as

passive leafletting and oe See, e.g., Madsen, 512 U.S

at ---, 114S.Ct. 2516, 129 L.Ed.2d at 610. Defendants, in turn.

contend that the Driveway Provision is narrowly tailored

because it is limited to a zone encompassing the driveway and

the eight-foot region immediately adjacent thereto, an area

different in kind from other areas Surrounding the medic

facility. In resolving this issue, this Court must dete ermine

whether the Ordinance burdens more speech than is necessary

n order to serve the identified governmental interest of ensuring

[ree ingress to and egress from the clinic Ward, 491 U.S

791, 109 S.Ct. 2746, 105 L.Ed.2d 661.

“In a facial challenge to the overbreadth and \ aguenes

of a law, a court’s first task is to determine gies: the

enactment reaches a substantial amount of constitutional],

protected conduct.” Hoffman Estates, 455 U.S. at 494. 102

S.Ct. ] og 71 L.Ed.2d 362; Kolender v. Lawson. 46] U.S. 352

359, n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 ¢ 1983). In this case.

it 1s apparent from the face of the Driveway Provision that all

pressive activity, whether peaceful or harassing, vocal o1

lent, 1s prohibited within the eight-foot zone on either side of

Jarry r frat

AOI Gl

Che provision reads: “No person shall conduct any demor

tivity within the driveway area or within eight (8) feet of the dr lveway area

of a health care facility 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 vehicula:

traffic in or out of such facility.’

38a

the driveway leading to the clinic.'? Defendants have thus

banned all forms of expressive activity, even silent prayer or

expressive t-shirts, from the driveway areas of every medical

facility and place of worship in Santa Barbara.

It is axiomatic in American constitutional j urisprudence

that the state cannot prohibit all protected forms of expressive

activity in a public forum. See, e.g., Airport Comm'rs v. Jews

for Jesus, Inc., 482 U.S. 569, 575, 107 S.Ct. 2568. 96 L.Ed.2d

500 (1987) (“We think it obvious that such a ban cannot be

justified even if LAX were a nonpublic forum because no

conceivable governmental interest would justify such an

absolute prohibition of speech”); Madsen, 512 U:S. at ---. 114

S.Ct. at 2516, 129 L.Ed.2d at 610 (noting distinction between

focused picketing, which may be banned, and “generally

disseminated communication that cannot be completely banned

in public places, such as handbilling and solicitation”): Frisby,

487 U.S. at 486, 108 S.Ct. at 2495, 101 L.Ed.2d 420 (“The type

of focused picketing prohibited by [the state court injunction] is

fundamentally different from more generally directed means of

communication that may not be completely banned in [public

places]”); Perry Educational Assn. v. Perry Local Educators’

Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)

(in traditional public forum, “the government may not prohibit

all communicative activity”); Gerritsen v. City of Los Angeles.

994 F.2d 570,577 (9th Cir. 1993) (invalidating ordinance which

prohibited handbilling within certain limited areas of public

park).

The ordinance explicitly defines “demonstration activity” as “all

expressive and symbolic conduct, whether active or passive, which shall

include but not be limited to, protesting, picketing, distributing literature, and

engaging in oral or silent protest, education or counseling activities.” See

9.99.010(D). The Driveway Provision apparently excepts expressive

conduct engaged in by individuals attempting to traverse the driveway.

tin

2g).

The Driveway Provision effectively creates a First

Amendment “free zone” in which no one may engage in

expressive activity of any kind. See Jews for Jesus, 482 U.S.

569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500. Such a blanket ban

necessarily prohibits more expressive conduct than Is necessary

to achieve the purpose of the Ordinance. Like the resolution at

issue in Jews for Jesus, the Driveway Provision “prohibits even

talking and reading, or the wearing of campaign buttons o1

symbolic clothing” within eight feet of every driveway leading

up to every medical facility and place of worship in Santa

Barbara. Jd. It also prevents traditionally favored activities

such as leafletting and handbilling. See 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 It seeks to

eliminate”); accord Sabelko, 846 F. Supp. at 820 (“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 manne

restrictions on such conduct in the public forum”).

Although the driveways leading to medicai clinics are

arguably distinguishable from other public fora, see Gerritsen.

794 F.2d at 576, the conduct prohibited must still be narrowly

defined vis-a-vis the governmental interest the restriction

purports to serve. The disputed language in this case is far

broader than the language used in ordinances and injunctions

challenged elsewhere, insofar as it encompasses the entire

universe of expressive activity.'' This Court notes that the

Driveway Provision carves out an exception for individuals

~ Even the ordinance struck down in Sabelko. 846 F Supp. 810

which generally tracks the Santa Barbara Ordinance, contains the more

restrictive definition of demonstration activity, as including but not limited

(0 "protesting, picketing, distributing literature, attempting to impede access,

or engaging in oral protest, education, or counseling activities.” Id. at 814

40a

merely attempting to traverse the driveway area: presumably an

individual traversing the driveway while incidentally engaging

in expressive activity would not violate the face of the

Ordinance.'* Despite this narrow proviso, however, the

Driveway Provision still criminalizes expressive activity qua

expressive activity, without relating such expression to its effect

on impeding access to the clinic.'’ Such a sweeping ban on

protected First Amendment activity cannot withstand

constitutional scrutiny. It is simply not narrowly tailored to

achieve its averred purpose, the protection of ingress to and

egress from clinics and churches."

"Specifically, the Driveway Provision states:

“.. . provided however that it shall be lawful for a person to use a

public sidewalk or street right-of-way adjacent to a health care

facility or place of worship in order to traverse a driveway area.”

9.99.030

One need look no further than the record before this Court to find

an example of the overbreadth of the Driveway Provision. At least one

anti-abortion demonstrator has been cited under the Ordinance for stepping

into the eight-foot driveway zone to give literature to someone. See

Plaintiffs’ Supplemental Offer in Support of Their Motion for Preliminary

Injunction, 5:7-9.

'*This Court notes that other driveway buffer zones with a more

narrowly defined realm of prohibited activity have been upheld. See, e.g.,

Madsen, 512 US. at ---, 114 S.Ct. at 2516, 129 L.Ed.2d at 611 (upholding

absolute ban on “congregating, picketing, patrolling, demonstrating or

entering” any property within thirty-six feet of the clinic’s property line). In

so holding, the Madsen court noted: “We also bear in mind the fact that the

state court originally issued a much narrower injunction, providing no buffer

zone, and that this order did not succeed in protecting access to the clinic.”

Id. See also Pro-Choice Network v. Schenck, 1994 WL 480642, *9 (2d Cir.

September 6, 1994) (finding unconstitutionally overbroad an injunction

creating a 1 5-foot buffer zone permitting two demonstrators at a time to enter

and engage in sidewalk counselling but noting that, “a different record

(continued...)

4la

Defendants urge this Court that any overbreadth problem

in the language of the Driveway Provision is cured by the

narrow construction of the Ordinance. It is axiomatic. however.

that Santa Barbara cannot avoid the overbreadth problem by

narrowing the problematic provision through selective

enforcement:

It would certainly be dangerous if the legislature could

set a net large enough to catch all possible offenders.

and leave it to the courts to step inside and say who

could be rightfully detained, and who should be set at

large.

Hill, 482 U.S. at 466, 107 S.Ct. at 2502, 96 L.Ed.2d 398. citing

United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 ( 1876).

According the policy “unconstitutional discretion in

enforcement” does not save an overbroad ordinance. Jd

Criminal statutes such as the one at issue here must be

scrutinized with particular care, see. e.g., Winters, supra, 33

U.S. at 515, 68 S.Ct. 665, 92 L.Ed.2d 840: those that make

unlawful a substantial amount of constitutionally protected

conduct may be held invalid even if they also have legitimate

application. E.g., Kolender, 461 U.S. at 359, n. 8. 103 S.Ct. at

1855, 75 L.Ed.2d 903.

‘(...continued)

revealing greater intransigence by Project Rescue might well support a more

restrictive injunction...”); Portland Fem. Women’s H. Ctr. v. Advocates for

Life, 859 F.2d 681, 686 (9th Cir. 1988) (upholding injunction establishing

a 25-foot buffer zone against “demonstrating or distributing literature” on

the sidewalk in front of the clinic)

This Court notes as well that the final sentence in § 9.99.030, not

challenged here, appears to serve the governmental interest of securing safe

and unimpeded access to clinics and churches without triggering the same

overbreadth problems

In this case, the Driveway Provision fails to pass muster

under the First Amendment because it incorporates the

constitutional infirmity of the Ordinance’s overbroad definition

f{ demonstration activity and thereby criminalizes the entire

universe of expressive activity. Such overbreadth cannot be

saved by selective enforcement, no matter how well intentioned.

[his Court must thus conclude that the Driveway Provision

sweeps too broadly

This Court does not envy city councils across the country

the difficult and thankless job of crafting an ordinance that

strikes a constitutional balance between ensuring women free

access to clinics, often at a difficult and personal moment in

their lives, and protecting the First Amendment rights of

individuals who disagree with the choice these women are

making. Nor is this Court heedless of the increasing violence

igainst clinics here in California and throughout the country.

However, legislatures may not seek to redress these societal

problems by enacting measures as distinctly overbroad as the

1e before this Court.

ry judgment as to the Driveway Provision is DENIED.

Plaintiffs’ motion for a preliminary injunction against

nforcement of the Driveway Provision is GRANTED.

2. [he Bubble Zone Provision

Plaintiffs contend that the Bubble Zone Provision

‘rbroad because its mandatory withdrawal provision is

npermissibly based upon the emotive impact of lawful First

43a

Amendment activity on the audience.'° Defendants. in t

argue that the Bubble Zone is simply a form oi “legisla

politeness” which allows harried passersby to traverse areas }

protest.

As an initial matter, this Court notes that violation o}

Bubble Zone Provision entails hindering or impeding access |

medical facilities and places of worship while engaging

demonstration activity. To the extent that the definition .

“demonstration activity” is overbroad, the Bubble Zone

Provision suffers from the same constitutional infirmity as the

Driveway Provision, supra. However, the overbroad definition

of demonstration activity, in isolation, fails to invalidate the

Bubble Zone Provision because the demonstration acti. ity

only incidental to the conduct regulated by the provision.'® T]

Bubble Zone Provision must stand or fall on

constitutionality of the specific prohibition of “impeding

“hindering” ingress to and egress from the clinic.

The explicit language of the Bubble Zone Pro:

defines the prohibited conduct as follows:

No person, in the course of demonstratio1

That such impact was of concern to the drafters is readily appa

from the face of the Ordinance. See, e.g., Preamble, Ord. 4812 at 1 (1

the “averse physiological and emotional effects of I

intimidating activities directed . . . from extremely close proximity

ldraSSil

This Court does note, however, that the literal language of th

Ordinance appears to prohibit impeding access to clinics when committed in

the course of demonstration activity, but not when such impeding is not

incidental to an expressive purpose. To the extent that this result is intended

and not merely indicative of inartful drafting, it impermissibly singles out

expressive activity. See United States v. O’Brien, 391 U.S. 367

S.Ct. 1673, 20 L.Ed.2d 672 (1968).

44a

shall impede or hamper the free access to or departure

from any health care facility or place of worship by

failing to withdraw immediately to a distance of at least

eight (8) feet away from any person who has requested

such withdrawal.

9.99.020(A) (emphasis added). The provision further states

that “impede” or “hamper” means “to obstruct, hinder or delay.”

/d. It is undisputed that a narrowly drafted prohibition on

obstructing access to clinics is constitutional.'’ The provision

challenged here, however, defines “obstruct, hinder or delay”

with the appositive phrase “by failing to withdraw

immediately.”'* The specific category of conduct the provision

‘Indeed, Plaintiffs in this case do not challenge the final sentence

n 9.99.030, which states in relevant part:

“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.”

This Court notes that there are two possible constructions of the

prepositional phrase “by failing to withdraw ...” The first view is that the

prepositional phrase syntactically renames the prohibited conduct “impede

or hamper.” Under this interpretation, failing to withdraw necessarily

impedes access and hence violates the Ordinance. This is the view adopted

by both parties and hence this Court. See, e.g. City’s Memorandum of

Points and Authorities in Support of Summary Judgment Motion, 20:24-21:2

(“[I]f the demonstrator does not immediately withdraw upon an articulated

withdrawal request, he or she is impeding and hampering access and

violating the ordinance’’); Council Agenda Report, with finished action, of

April 20, 1993, 840 (discussing optimal personal space of eight feet in order

to “reduce the impact of perceived hostile and angry behaviors directed at a

person’’); Ordinance Committee Council Agenda Report, April 30, 1993 (“A

person’s free speech is limited only within the 100 foot access area and then

only tf requested by another individual within the eight foot bubble . . .”)

, 7 oA

(empnasis aaddea)

(continued...)

45a

is designed to address is therefore the failure to withdraw upon

request. The relevant inquiry for this Court is thus whether the

creation of a bubble zone around visitors to the clinic and its

immediate environs is a constitutional prohibition on expressive

conduct.

The case law and the literal language of the Bubble Zone

Provision indicate that it is. This Court notes at the outset that

bubble zones more or less comparable to the one at issue here

have not fared well recently. In Madsen, the Supreme Court

struck down an injunction creating a 300-foot bubble zone

around a clinic and a requirement that demonstrators refrain

from physically approaching anyone unless and until such

person indicates a desire to communicate. In so holding, the

Court stated:

[I]t is difficult, indeed, to justify a prohibition on all

uninvited approaches of persons seeking the services of

the clinic, regardless of how peaceful the contact may

be, without burdening more speech than necessary to

prevent intimidation and to ensure access to the clinic.

Madsen, 512 U.S. at ---, 114 S.Ct. at 2529, 129 L.Ed.2d at 613

(emphasis in original). In so holding, the Madsen court

"(...continued)

The second view interprets the prepositional phrase “by failing to

withdraw” as constituting a subset of impeding behavior singled out for

prohibition. Under this view, failing to withdraw does not per se violate the

provision. That is, the descriptions of the prohibited behavior are

cumulative: The demonstrator must first actively impede access to the clinic.

and the demonstrator must then fail to withdraw. This interpretation would

pose difficult legal questions. See fn. 14, supra. However, since it is

apparent to this Court that both parties construe the phrase as appositional,

rather than conjunctive, this Court need not resolve the conceptual

difficulties posed by the second possible interpretation

46a

specifically stated that the prohibited speech must be

independently proscribable (e.g., fighting words or threats) and

that the consent requirement alone is sufficient to invalidate the

provision. /d.

Defendants attempt to distinguish the bubble zone in

Vadsen, which prohibited all approaches within a 300-foot

radius of the clinic unless the listener first consents, from the

Bubble Zone before this Court, which prohibits such activity

only after the listener expresses his or her non-consent. It is

clear that the “cease and desist” Bubble Zone challenged here is

less restrictive than the “no approach” zone invalidated by

Madsen. However, this distinction does not alone render the

Bubble Zone narrowly tailored:

[B]Joth the cease and desist provision here and the no

approach provision in Madsen operate to allow the

prospective counselee to control the prospective

counselor’s opportunity to engage in protected

expression. The provisions are thus equally restrictive

of the communication offered by the counselors: both

effectively condition the demonstrator’s right to engage

in protected expression on another person’s wish to hear

such expression.

Pro-Choice Network, 1994 WL 480642, *11 (striking down an

injunction creating a fifteen-foot cease-and-desist bubble zone).

See also Sabelko, 846 F. Supp. at 823 (striking down a

permanent criminal injunction creating an eight-foot bubble

zone as overbroad because it bans all expressive activity,

including handbilling and leafletting, and vests enforcement

power in private citizens); Fargo Women’s Health v. Lambs of

Christ, 488 N.W.2d 401 (N.D.1992) (striking down preliminarv

injunction that completely banned distributing literature to those

unwilling to receive it).

47a

The cease and desist provision challenged here, like the

broader blanket provision invalidated in Madsen. sweeps too

broadly.'” The violation of both provisions is defined in the

terms of subjective listener reaction. an impermissibly

overbroad basis for limiting expressiv e conduct that is itself not

independently proscribable.”° Accordingly, the Bubble Zone

Provision is unconstitutionally overbroad: it is not readily

subject to a narrowing construction by this Court, and its

deterrent effect on expression is both real and substantial

Erznoznik v. City of Jacksonville, 422 U.S. 205.216. 95 A oe 2

2268, 45 L.Ed.2d 125 (1975).

This Court realizes that the patients and visitors at

medical facilities may be particularly vulnerable to solicitation

and demonstration activities because entering a medical facility

for any kind of treatment is inherently stressful. See. e. g.,

International Society for Krishna Consciousness y. Lee. 5(

U.S. 672,---, 112 S.Ct. 2701, 2708, 120 L.Ed.2d 541. 55

(1992) (“face-to-face solicitation presents risks of duress that are

an appropriate target of regulation. The skillful. and

unprincipled, solicitor can target the most vulnerable. including

those accompanying children or those suffering bees

impairment and who cannot easily avoid the solicitation.”

Indeed, the language of the Preamble to the Ordinance iicaics

"Indeed, this Court notes that an anti-abortion protestor would

violate the literal language of the Ordinance simply by handing literature to

a willing recipient accompanied by and in close physical proximity to a clinic

escort who requests that the protestor withdraw.

*°As noted supra, this Court need not reach the question of whether

the subjective nature of audience response to the demonstrators’ message in

this case also renders the Bubble Zone Provision content-based. See

Madsen, 512 U.S. at --- n. 6, 114 S.Ct. at 2529 n. 6, 129 L.Ed.2d at 613 n

48a

1 belief that individuals entering and exiting medical facilities

and places of worship are a captive audience to demonstration

7% |

}

1CLIVILY.

Although this argument is intuitively appealing, see, e.g.,

Pro-Choice Network, 1994 WL 480642, *16 (Oakes, J..

dissenting) (“Women who want abortions have no choice but to

brave the demonstrations en route to clinics. They are, in effect,

a captive audience to the messages of the protestors”’), this Court

notes that Defendants cite no authority for applying the captive

audience doctrine to individuals on public sidewalks en route to

medical treatment. Indeed, the captive audience doctrine has

traditionally been limited to situations where an individual is at

home. See Frisby, 487 U.S. at 487. The captive audience

doctrine has been applied only sparingly in public fora. See

e.g., Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41

L.Ed.2d 770 (1974) (applying the captive audience doctrine to

passengers on rapid transit buses). Moreover, the overbreadth

problems plaguing the substance of the Driveway and the

Bubble Zone Provisions render this case less amenable to a

captive audience analysis. See Sabelko, 846 F. Supp. at 825.

citing City of Watseka v. Illinois Public Action Council, 796

E.2d 1547 (7th Cir. 1986), aff'd without opinion 479 U.S. 1048,

7 S.Ct. 919, 93 L.Ed.2d 972 (1987).

Accordingly, after careful and difficult consideration,

this Court finds the Bubble Zone Provision unconstitutionally

overbroad. It is never easy to strike a balance between

countervailing constitutional rights. The demonstrations outside

of the Santa Barbara clinics no doubt inflict pain and stress on

those who enter the clinic, whether for abortions or for other

treatments. That such offense is part and parcel of the

importance of First Amendment rights under the Constitution,

see, e.g., Boos, 485 U.S. at 322, 108 S.Ct. at 1157, 99 L.Ed.2d

333, is small comfort to those confronted with viewpoints they

49a

find objectionable at a time when they are most vulnerable to

offense. It is equally clear to this Court, however. that those

who passionately disagree with a woman’s choice to engage in

her constitutionally protected right to abortion must be

permitted the freedom to express their disagreement in a

nonthreatening manner.

For the foregoing reasons, this Court GRANTS

Plaintiffs’ Motion for a Preliminary Injunction, and DENIES

Defendants’ Motion for Summary Judgment.

Vil. VAGUENESS

Plaintiffs also make a vagueness challenge to the

Ordinance. They argue that the Bubble Zone Provision is

unconstitutionally vague because it makes the right to speak

dependent on listener reaction. They also argue that the

“demonstration activity” definition is impermissibly vague.

However, this Court’s conclusion that the Ordinance is

overbroad makes it unnecessary to resolve these difficult

questions.

Vill. APPLICATION TO THE MOTIONS

As set forth above, both the Driveway Provision and the

Bubble Zone Provision are unconstitutional. Therefore.

defendants’ motion for summary judgment is DENIED:

defendants are not entitled to judgment as a matter of law.

Plaintiffs have demonstrated that they will prevail on the

constitutional merits. They have also demonstrated that the

Ordinance deprives them of First Amendment freedoms. and

thus irreparably injures them. See, e.g, Elrod v. Burns. 427

U.S. 347,373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (even brief

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access to such services should not be hampered,

impeded, harassed or intimidated from providing or

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WHEREAS, persons attempting to access or depart from

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delay or forgo medical treatment:

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SECTION I. Title 9 of the Santa Barbara Municipal

Code is amended by adding Chapter 9.99 which reads as

follows:

9.99.010 Definitions

As used in this Chapter, the following terms and phrases

shall have the indicated meetings:

A. ACCESS AREA. Any portion of a public street or

other public place or any place open to the public within one

hundred (100) feet of the premises of a health care facility or

place of worship.

B. HEALTH CARE FACILITY. Any medical or

health facility, hospital or clinic within the City which is

licensed under State law or any building, office or other place

within the City regularly used by any health care provider

licensed under State law to provide medizal. nursing, or health

care or advice to patients. A health care facility includes but is

not limited to any buildings. appurtenances and grounds,

entrances, parking facilities, and driveways.

C. PLACE OF WORSHIP. A place of worship

includes but is not limited to any buildings, appurtenances and

grounds, entrances, parking facilities, and driveways where

persons gather to worship when the same are used solely and

exclusively for religious worship.

D. DEMONSTRATION ACTIVITY. Al! expressive

and symbolic conduct, whether active or passive, which shall

include, but not be limited to, protesting, picketing, distributing

literature, and engaging in oral or silent protest, education or

counseling activities.

KE. DRIVEWAY AREA. That portion of a street

right-of-way (including a sidewalk) generally improved for the

purposes of providing a vehicular access to adjacent private

property. At the request of a health care facility or place of

worship, the City of Santa Barbara will indicate (such as

through the use of painted lines) the perimeter boundaries of

9.99.020 Impeding Access Prohibited

A. DEMONSTRATION ACTIVITY -- OBLIGA-

LION TO WITHDRAW. No person, in the course of

demonstration activity within the access area of a health care

facility or place of worship, acting alone or in concert with

others, shall impede or hamper the free access to or departure

trom any health care facility or place of worship by failing to

withdraw immediately to a distance of at least sight (8) feet

away from any person who has requested such withdrawal.

“Impede” or “Hamper” means to obstruct, hinder or delay.

B. WITHDRAWAL. For the purposes of this Section.

withdrawal may be requested by a person verbally, or by

carrying or wearing a visible sign clearly indicating such

withdrawal request. Statements by a person, or signs carried or

worn by a person displaying words or symbols such as or similar

in effect to “stop,” “stop it,” “withdraw,” “back off,” “get

away, Or “leave me alone” shall be sufficient to constitute a

violation of this Section. Mere statements of opinion or

disagreement made in the absence of a request to withdraw shall

not be construed to be a request under this Section.

C. DISTANCE. Distance under this Section shall be

measured from that part of the closest demonstrator’s body that

is nearest to the closest part of the requesting person’ body. For

We vacate the district court’s preliminar

‘mand for reconsideration of the motion for

njunction in light of Sabelko v. The City of P

59 (9th Cir. Oct. 19, 199

4-15495, slip op. 13

VACATED AND REMANDED

he panel unanimously finds this case

il argument. Fed. R. App. P. 34(a): 9th Cir. R. 34-4

[he various applications for leave to {

‘ment of a Santa Barbara ( lly Ordinance regulat

monstration activity at health care facilities and place

hip. Edwards v. City of Santa Barbara, 883 F. Supp

D. Cal. 1995), vacated by 70 F.3d 1277 (9th Cir. 1995)

(Vit) (Mas

Barbara, Cal., Ordinance 9.99.010

59a

Defendants appealed and the Ninth Circuit remanded the

case for proceedings consistent with the Ninth Circuit’s decision

in Sabelko v. City of Phoenix. 68 F.3d 1169 (9th Cir. 1995).

See Edwards v. City of Santa Barbara, 70 F.3d 1277 (9th Cir.

1995). The case was subsequently transferred to this Court.

On December 7, 1995, Plaintiffs renewed their Motion

for a Preliminary Injunction to enjoin enforcement of the

Ordinance. See Ordinance §§ 9.99.020, 9.99.030. In an Order

dated March 22, 1996, this Court continued the motion and

informed the parties that reconsideration would be limited to the

impact of the Sabelko decision on Judge Gadbois’s ruling.

The matter was continued to April 29, 1996, at which

time the Court took the matter under submission pursuant to

Federal Rule of Civil Procedure 78 to ensure that all relevant

documents were considered. Having reviewed Judge Gadbois’s

Order and the papers filed in connection with this action, and

having considered the impact of the Ninth Circuit’s opinion in

Sabelko, the Court hereby GRANTS in part and DENIES in

part Plaintiff's Motion for a Preliminary Injunction.

Plaintiff's Motion is DENIED as to section 9.99.020

(the Bubble Zone Provision), but only as that provision applies

to health care facilities. Plaintiffs Motion is GRANTED as to

section 9.99.020 (the Driveway Provision) and as section

9.99.020 (the Bubble Zone Provision) applies to places of

worship.

IT. BACKGROUND

In May 1993, the City Council of Defendant City of

Santa Barbara (the “City”) adopted an ordinance limiting

activity outside medical clinics and places of worship (“the

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feet of a health care facility or place of worship. Ordinance &

9.99.010(A).

Two anti-abortion “sidewalk counselors” brought the

instant action challenging 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 to periodically hold

signs with a pro-life, anti-abortion message.”” (Edwards Decl.

| 4; McCaulley Decl. § 4.) Plaintiffs seek to conduct these

activities outside medical facilities providing abortion services

within the City. Plaintiffs contend that the Ordinance violates

their rights under the First Amendment because it deters them

from this planned expressive activity.

Judge Gadbois originally granted Plaintiffs’ Motion for

a Preliminary Injunction and enjoined enforcement of both the

Driveway and Bubble Zone Provisions. The City appealed, and

in November 1995, the Ninth Circuit vacated the order granting

the preliminary injunction and remanded the matter for

reconsideration in light of Sabelko v. Citv of Phoenix, 68 F.3d

1169 (9th Cir. 1995).

of a similar Bubble Ordinance which made illegal a

demonstrator’s failure to honor a person’s “clearly

communicated request” to withdraw to a distance of eight feet

it the demonstrator was in a public area within 100 feet of a

health care facility. Id. at 1173.

In Sabelko, the Ninth Circuit upheld the constitutionality

This Court now reviews Judge Gadbois’s decision

enjoining enforcement of the Ordinance in light of the Ninth

Circuit’s decision.

ISCUSSTON

Standard for Preliminary Injunction

Dtain a preliminary injunction. a plaintiff mu

strate either: (1)alikelihood of pr Caper ans

, , |

possibility of irreparable injury; or (2) that there are seriou

tions regarding the merits of the action, and the balance of

ships tips sharply in plaintiffs’ favor Metro Publishing Ltd

¥ Te i, Psat oatte 987 F.2d 637, 639 (9th Cir. 1993)

‘ders POA tee ie 936 F.2d 417, 422 (9th Cir. 1991)

inson Controls. Inc. v. Phoenix Control Sys.. Inc., 886 |

'3, 1174 (9th Cir. 1989). Even brief deprivations of First

.mendment freedoms constitute irreparable injury. See. e g

Burns, 427 U.S. 347, 373, 96 S. Ct. 2673. 2690 (1976

inece iltern

A il c it

, \

AcALL Y

live tests represent a continuum

table discretion whereby the greater the relative h ardship t

the moving party, the less probability of success on the merits

the moving party must demonstrate. San Die ego Comm. Against

Kegistration v. Governing Bd., 790 F.2d 1471. 1473 n3 (9th

Cir. 1986); Regents of Univ. of Cal. v. American Broadcasting

Companies, _Inc., 747 F.2d 511, 515 (9th Cir. 1984)

sentially, the trial court must balance the equities involved

and exercise its discretion. International Jensen. Inc.

letrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993).

B. Standard for First Amendment Analysis

in assessing the constitutionality of the Ordinance. the

irt must first determine if the Ordinance is content-neutral

\n ordinance is content-neutral if it regulates the expression

ithout regard to the message conv eyed. Turner Broadcasting

Sys. Inc. v. Federal Communications Comm’n. US. __

L148. Ct. 2445, 2459 (1994): Ward v. Rock Against Racism.

63a

491 U.S. 781, 791. 109 S. Ct. 2746, 2754 ( 1989).

If the Ordinance js not content-neutral, it is

presumptively invalid, and can survive only if City can show

that it is necessary to serve a compelling state interest and is

narrowly tailored to meet that end. Simon & Schuster v. New

York State Crime Victims Bd.. 502 U.S. 105, 112 S. Ct. 501.

509 (1991).

If the Ordinance is content-neutral. it will stand if it is

“Narrowly tailored to serve a Significant government interest.

and leave[s] open ample alternative channels of

communication.” Perry Educ. Ass’n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948. 955 (1983), quoted in

Sabelko, 68 F.3d at 1172: see Ward, 491 U.S. at 791, 109S. Ct.

at 2753.

Only a statute that is substantially overbroad may be

invalidated on its face. New York v. Ferber, 458 U.S. 747, 769.

102 S. Ct. 3348, 336] (1982); Broadrick v. Oklahoma. 413 U.S.

601, 615-16, 93 S. Ct. 2908. 2917-18 (1973). Special scrutiny

is appropriate in the case of a criminal Ordinance. Winters v.

New York, 333 U.S. 507, 515, 68 S. Ct. 665 (1948).

. The Sabelko Decision

In Sabelko, anti-abortion sidewalk counselors brought an

action challenging a Phoenix “Bubble Zone” ordinance that

made 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 was in a public

65a

Ct. 2516 (1994),* the Ninth Circuit reversed and remanded with

instructions to vacate the injunction. Sabelko, 68 F.3d at

1172-73. The Ninth Circuit concluded that the ordinance was

content-neutral because “it makes no reference to the speech it

purports to regulate,” id. at 1171, and was narrowly tailored

because “communication is not prohibited or interrupted, but

simply distanced to eight feet.” Id. at 1173.

D. Plaintiffs’ Request for Preliminary Injunction

l. The Driveway provision

Section 9.99.030, the Driveway Provision. provides:

No person shall conduct any demonstration activity

within the driveway area or within eight (8) feet of the

driveway area of a health care facility or place of

worship, provided however that it shall be lawful for a

person to use a public sidewalk or street right-of-way

adjacent to a health care facility or place of worship in

order to traverse a driveway area.

Ordinance § 9.99.030. “Demonstration acti. ity’ 1s defined as

“In Madsen v. Women’s Health Ctr. Inc... "U.S 1188 ce

2516 (1994), the Supreme Court upheld a Florida state court injunction

against individual named anti-abortion protestors and persons acting in

concert with them. The injunction established a 36-foot “buffer zone”

around an abortion clinic. Within the buffer zone, defendants were

prohibited from virtually all demonstration activity. Id., at 2521-22. The

Supreme Court ruled that the injunction was content-neutral despite the fact

that it targeted only abortion protestors. Id. at 2523.

The Court also stated that “the State’s strong interest in residential

privacy, acknowledged in Frisby v. Schultz. 487 U.S 474, 108 S. Ct. 2495

(1988), applied by analogy to medical privacy.” Id. at 2526. The Court

therefore expressly recognized that persons approaching a health care facility

represent a “captive audience.” Id.

66a

“{ajll expressive and symbolic conduct, whether active or

passive, which shall include, but not be limited to, protesting,

picketing, distributing literature, and engaging in oral or silent

protest, education or counseling activities.” Ordinance §

9.99.010(D).

In enjoining the Ordinance, Judge Gadbois held the

Driveway Provision unconstitutional because it “incorporates

the constitutional infirmity of the Ordinance’s overbroad

definition of demonstration activity and thereby criminalizes the

entire universe of expressive activity.” Edwards v. City of Santa

Barbara, 883 F. Supp. 1379, 1390 (C.D. Cal. 1995).

The Sabelko decision does not undermine Judge

Gadbois’s determination that the Driveway Provision is

unconstitutional. The fact that both ordinances employ virtually

identical definitions of “demonstration activity” does not

compel a different result.

Judge Gadbois did not conclude that the Driveway

Provision was overbroad solely on the basis of the Ordinance’s

definition of “demonstration activity.” Rather, Judge Gadbois

determined that the definition, as applied in the Driveway

Provision, “criminalizes expressive activity qua expressive

activity, without relating such expression to its effect on

impeding access to the clinic.” Id. at 1390. Judge Gadbois

therefore found that the Driveway Provision was “simply not

narrowly tailored to achieve its averred purpose, the protection

of ingress to and egress from clinics and churches.” Id.

By contrast, Sabelko considered whether an ordinance

making it unlawful for a demonstrator to fail to withdraw to a

distance of eight feet upon request was unconstitutional.

Sabelko, 68 F.3d at 1175. Sabelko did not address the

constitutionality of a “speech-free zone provision” which bans

67a

all expression within a designated area.

Sabelko does not, therefore, affect Judge Gadbois’s

determination that the Driveway Provision is overbroad.

Plaintiffs’ Motion for a Preliminary Injunction to enjoin the City

from enforcing section 9.99.030 of the Ordinance is therefore

GRANTED.

2. The Bubble Zone Provision

In Sabelko, the Ninth Circuit upheld a “Bubble

Ordinance” virtually identical to the Bubble Zone provision at

issue in the instant case. The Phoenix ordinance, however.

applied only to health care facilities; the Provision in the instant

case applies to both health care facilities and places of worship.

a. The Bubble Zone as applied to

health care facilities

Judge Gadbois held that the Bubble Zone Provision was

unconstitutional because “violation of [the Prov ision] is defined

in the terms of subjective listener reaction, an impermissibly

overbroad basis for limiting expressive conduct that is itself not

independently proscribable.” Edwards, 883 F. Supp. at

1392-93. In Sabelko, however, the Ninth Circuit upheld an

essentially identical Phoenix ordinance, concluding that it was

both content-neutral and narrowly tailored to serve a legitimate

government interest. Under the Ninth Circuit’s analysis,

therefore, the Bubble Zone Provision at issue in the instant case

cannot be held to be overbroad as applied to health care

facilities.

Plaintiffs’ argument that the subjective nature of

audience response to the demonstrator’s message renders the

68a

Provision content-based and unconstitutionally vague must also

fail in light of Sabelko. Sabelko expressly held that ar

audience’s ability to curtail speech did not render the ordinance

content-based because the ordinance made no reference to the

speech it purported to regulate. Sabelko, 68 F.3d at 1171-72.

This Court also rejects Plaintiffs’ argument that biased

enforcement of the Bubble Zone Provision renders it

content-based. Plaintiffs contend that the majority of the

individuals cited under the Ordinance were anti-abortion

protestors. Plaintiffs fail, however, to present evidence that

protestors with different messages violated the Ordinance

without being arrested.°

Plaintiffs also cite the depositions of police officers

Michael Foxen (“Foxen”) and Michael Aspland (““Aspland”) for

the proposition that enforcement is based on the content of the

expression. A law is not content-neutral when its enforcement

turns on scrutiny of the content of expression. See, e.g., Simon

& Schuster. Inc. v. New York State Crime Victims Bd., 502

U.S. 105, 115-16, 112 S. Ct. 501, 508 (1991).

Plaintiffs reliance on Foxen and Aspland’s deposition

testimony is misplaced. The deposition testimony relates to

enforcement of the Driveway Provision rather than the Bubble

Zone Provision.

Moreover, Foxen testified that enforcement of the

Ordinance depended on whether someone was expressing an

opinion in the prohibited zones. (Foxen Dep. at 55.) Thus,

someone playing country-western songs in the zone would not

*Judge Gadbois also rejected this argument. See Edwards, 883 F.

Supp. at 1386.

69a

be in violation, but someone singing an anti-abortion song

would. (Foxen Dep. at 51.) Plaintiffs argue that this

demonstrates biased enforcement, but Foxen explained that an

individual would be in violation of the Ordinance if he

expressed any opinion in the prohibited zones. In fact, Foxen

maintained that an individual would be arrested for violating the

Ordinance if he or she was in the demonstration-free zone

conveying a pro-choice message. (Foxen Dep. at 57.) Thus,

according to Foxen, enforcement does not depend on what

opinion or viewpoint is expressed, but rather, whether an

opinion or viewpoint is expressed. (Foxen Dep. at 56-59.)

Similarly, Aspland testified that when deciding whether

to issue citations, he did not consider the individual’s point of

view. (Aspland Dep. at 54.) In fact, Aspland testified that he

would not arrest an individual who demonstrated against

abortion in the demonstration-free zone (in violation of the

Ordinance) if that person was not aware that his or her conduct

was contrary to the Ordinance. (Aspland Dep. at 39.)

Foxen and Aspland’s testimony regarding enforcement

of the Ordinance is insufficient to establish that enforcement of

the Ordinance is based on the content of the expression.

Because Plaintiffs fail to distinguish the Bubble Zone Provision

in the instant case from the Phoenix ordinance upheld in

Sabelko, the Bubble Zone Provision at issue in the instant case

must also be upheld. Plaintiffs’ Motion for Preliminary

Injunction to restrict enforcement of section 9.99.020 as it is

applied to health care facilities is therefore DENIED.

b. The Bubble Zone as applied to

places of worship

In traditional public fora, “the government may not

70a

prohibit all communicative activity.” Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948,

955 (1983). The government may, however, “enforce

regulations of the time, place, and manner of expression which

are content-neutral, are narrowly tailored to serve a significant

government interest, and leave open ample channels of

communication.” Id.

The First Amendment also “permits the government to

prohibit offensive speech as intrusive when the ‘captive’

audience cannot avoid the objectionable speech.” Frisby _v.

Schultz, 487 U.S. 474, 487, 108 S. Ct. 2495, 2504 (1988).

Thus, when speech is directed towards a captive audience, the

court will weigh this factor in favor of allowing restriction on

that form of expression.

The captive audience doctrine has traditionally been

limited to situations where an individual is at home. See id. In

Madsen v, Women’s Health Ctr..Inc., US. ,1148.Ct.

2516, 2526 (1994), however, the Supreme Court concluded that

persons approaching a health care facility also represented a

captive audience. The Court held that “the State’s strong interest

in residential privacy, acknowledged in [Frisby], applied by

analogy to medical privacy.” Id. “While targeted picketing at

the home threatens the psychological well-being of the ‘captive’

resident, targeted picketing of a hospital or clinic threatens not

only the psychological, but the physical well-being of the patient

held ‘captive’ by medical circumstances.” Id.

In the instant case, City argues that the captive audience

doctrine should be extended to places of worship because “a

place of worship is no less a harbor for the exercise of a privacy

right than a medical facility.” The “captive audience” doctrine,

however, is applied sparingly in public fora. Generally, “[w]Je

expect individuals simply to avoid speech they do not want to

;

Tla

hear.” Frisby, 487 U.S. at 484, 108 S. Ct. at 2502. Thus,

persons are regularly “captives” of expressive activity that takes

place where they are obligated to go; the witness, party, or

attorney who must attend a hearing, see, e.g., Cohen _v.

California, 403 U.S. 15, 91 S. Ct. 1780 (1971), the student who

must attend school, see. e.g., Tinker v. Des Moines Indep.

Community Scho. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969), and

the employee desiring to keep his job at a particular store, see,

e.g., [Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736 (1940).

Citing Madsen, the Ninth Circuit extended the captive

audience doctrine to persons entering health care facilities.

Sabelko, 68 F.3d at 1172. The court’s application of the

doctrine was, however, based on the public interest in protecting

patients requiring medical care at medical facilities. Id. The

Sabelko court noted that the interest served by the Phoenix

ordinance included a woman’s right to abortion and other

pregnancy-related treatment, a woman’s “medical privacy,” and

the state’s interest in public safety and order. Id. The court

concluded that the Phoenix ordinance was sufficiently tailored

to protect a woman’s physical and psychological well-being by

protecting her privacy in obtaining pregnancy-related treatment.

Id.

Clearly, such a justification does not exist, and cannot be

used, to support a restriction on speech in public fora in

proximity to churches, synagogues, mosques, and other defined

“places of worship.” Nothing in Sabelko justifies extending the

captive audience doctrine to persons approaching places of

worship.

Plaintiff s request for a preliminary injunction restricting

enforcement of section 9.99.020 as it applies to places of

worship is therefore GRANTED.

72a

V. CONCLUSION

Judge Gadbois concluded that the challenged ordinance

violated Plaintiffs’ mghts under the First Amendment. The

Driveway Provision was unconstitutionally overbroad because

it banned all expressive activity within a designated area. The

Bubble Zone Provision was unconstitutional because violation

was based upon listener reaction.

Nothing in Sabelko justifies disturbing Judge Gadbois’s

ruling on the Driveway Provision. Therefore, Plaintiff's Motion

for a Preliminary Injunction enjoining enforcement at section

9.99.030 is GRANTED.

The Ninth Circuit’s opinion Sabelko, however, compels

a different result in regard to section 9.99.020. The Bubble

Zone Provision upheld in Sabelko is virtually identical to the

provision at issue here, at least as that provision applies to

health care facilities. Plaintiff's efforts to distinguish Sabelko

are unconvincing. Plaintiffs Motion for a Preliminary

Injunction restricting enforcement of section 9.99.020 of the

Santa Barbara Ordinance is therefore DENIED as it applies to

health care facilities.

Nonetheless, there is nothing in Sabelko to justify

extending the “captive audience” doctrine to places of worship.

Plaintiffs’ Motion for a Preliminary Injunction restricting

enforcement of section 9.99.020 is GRANTED as it applies to

places of worship.

IT IS SO ORDERED.

73a

RONALD S. W_LEW

RONALD S.W. LEW

United States District Judge

DATED: July 16, 1996

APPENDIX

An Ordinance of the Council of the City of Santa Barbara

Amending the Municipal Code By Adding a New Chapter

9.99 Pertaining to Access to Health Care Facilities

SECTION I. Title 9 of the Santa Barbara

Municipal Code is amended by adding Chapter 9.99

which reads as follows:

9.99.010 Definitions

As used in this Chapter, the following terms and

phrases shall have the indicated meetings:

A. ACCESS AREA. Any portion of a public

street or other public place or any place open to the

public within one hundred (100) feet of the premises of

a health care facility or place of worship.

B. HEALTH CARE FACILITY. Any

medical or health facility, hospital or clinic within the

City which is licensed under State law or any building,

office or other place within the City regularly used by

any health care provider licensed under State law to

provide medical, nursing, or health care or advice to

patients. A health care facility includes but is not

74a

limited to any buildings, appurtenances and grounds,

entrances, parking facilities, and driveways.

C. PLACE OF WORSHIP. A place of

worship includes but is not limited to any buildings,

appurtenances and grounds, entrances, parking facilities,

and driveways where persons gather to worship when

the same are used solely and exclusively for religious

worship.

D. DEMONSTRATION ACTIVITY. All

expressive and symbolic conduct, whether active or

passive, which shall include, but not be limited to,

protesting, picketing, distributing literature, and

engaging in oral or silent protest, education or

counseling activities.

E. DRIVEWAY AREA. That portion of a

street right-of-way (including a sidewalk) generally

improved for the purposes of providing a vehicular

access to adjacent private property. At the request of a

health care facility or place of worship, the City of Santa

Barbara will indicate (such as through the use of painted

lines) the perimeter boundaries of a driveway area.

9.99.020 Impeding Access Prohibited

A. DEMONSTRATION ACTIVITY --

OBLIGATION TO WITHDRAW. No person, in the

course of demonstration activity within the access area

of a health care facility or place of worship, acting alone

or in concert with others, shall impede or hamper the

free access to or departure from any health care facility

or place of worship by failing to withdraw immediately

75a

to a distance of at least eight (8) feet away from any

person who has requested such withdrawal. “Impede”

or “Hamper” means to obstruct, hinder or delay.

B. WITHDRAWAL. For the purposes of this

Section, withdrawal may be requested by a person

verbally, or by carrying or wearing a visible sign clearly

indicating such withdrawal request. Statements by a

person, or signs carried or worn by a person displaying

words or symbols such as or similar in effect to “stop,”

“stop it,” “withdraw,” “back off,” “get away,” or “leave

me alone” shall be sufficient to constitute a violation of

this Section. Mere statements of opinion or

disagreement made in the absence of a request to

withdraw shall not be construed to be a request under

this Section.

C. DISTANCE. Distance under this Section

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. For purposes of the

preceding sentence, the term “body” shall include any

natural or artificial extension thereof, including, but not

limited to, and outstretched arm or handheld sign.

9.99.030 Access to Driveway Areas

No person shall conduct any demonstration

activity within the driveway area or within eight (8) feet

of the driveway area of a health care facility or place of

worship, provided however that it shall be lawful for a

person to use a public sidewalk or street right-of-way

adjacent to a health care facility or place of worship in

order to traverse a driveway area. No person shall

76a

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.

Santa Barbara, Cal., Ordinance 9.99.010-.030 (May 1993).

77a

APPENDIX F

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-56790

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

No. 96-56262

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

No. 96-56558

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

ORDER

Filed October 26, 1998

Before: BROWNING, BRUNETTI and FERNANDEZ, Circuit

Judges:

Appellees’ motion for stay of mandate pending petition

to the Supreme Court for a writ of certiorari 1s granted.

79a

APPENDIX G

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-56790

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

No. 96-56262

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

80a

No. 96-56558

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CiTy OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

ORDER

Filed October 27, 1998

Before: BROWNING, BRUNETTI and FERNANDEZ, Circuit

Judges;

The parties having stipulated thereto, it is hereby ordered

that:

l. Plaintiffs-appellees’ time for filing a motion for

attorney’s fees and expenses is tolled until a

final determination by the United States

Supreme Court is made. Plaintiffs-appellees

will have 20 days from either the denial of

certiorari or the issuance of the mandate of the

United States Supreme Court to submit their

8la

application for attorney’s fees.

Defendant-appellant will suspend enforcement

of Ordinance No. 4128, § 9.99.030, relating to

the “driveway provision,” until a final

determination by the United States Supreme

Court is made.

82a

APPENDIX H

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-56790

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION FUND, etc..

Amici Curiae.

No. 96-56262

VICKIE L. EDWARDS; KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CITY OF SANTA BARBARA,

Defendant-Appellant.

NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

No. 96-56558

VICKIE L. EDWARDS: KATHLEEN MCCAULLEY,

Plaintiffs-Appellees,

CiTy OF SANTA BARBARA,

Defendant-Appellant.

~ NOW LEGAL DEFENSE AND EDUCATION

FUND; CALIFORNIA MEDICAL ASSOCIATION;

CITY AND COUNTY OF SAN FRANCISCO,

Amici Curiae.

ORDER

Filed October 6, 1998

Before: BROWNING, BRUNETTI and FERNANDEZ, Circuit

Judges;

The panel has voted to deny the petition for rehearing

and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for an

en banc rehearing, and no judge of the court has requested 2

vote on the suggestion for rehearing en banc. Fed. R. App. P.

35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

84a

APPENDIX I

ARTICLES IN ADDITION TO, AND AMENDMENT OF,

THE CONSTITUTION OF THE UNITED STATES OF

AMERICA, PROPOSED BY CONGRESS, AND RATIFIED

BY THE SEVERAL STATES, PURSUANT TO THE FIFTH

ARTICLE OF THE ORIGINAL CONSTITUTION.

AMENDMENT I [1791].

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.

* * *

AMENDMENT XIV [1868].

SECTION 1. 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,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

SECTION 2. Representatives shall be apportioned

among the several States according to their respective numbers,

counting the whole number of persons in each State, excluding

Indians not taxed. But when the right to vote at any election for

the choice of electors for President and Vice President of the

United States, Representatives in Congress, the Executive and

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Judicial officers of a State, or the members of the Legislature

thereof. is denied to any of the male inhabitants of such State,

being twenty-one years of age, and citizens of the United States,

or in any way abridged, except for participation

in rebellion, or other crime, the basis of representation therein

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

SECTION 3. No person shall be a Senator or

Representative in Congress, or elector of President and Vice

President, or hold any office, civil or military, under the United

States, or under any State, who, having previously taken on

oath, as a member of Congress, or as an officer of the United

States, or as a member of any State legislature, or as an

executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

SECTION 4. The validity of the public debt of the

United States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion against the

United States, or any claim for the loss or emancipation of any

slave; but all such debts, obligations and claims shall be held

illegal and void.

SECTION 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

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APPENDIX J

ORDINANCE NO. 4812

AN ORDINANCE OF THE COUNCIL OF THE

CITY OF SANTA BARBARA AMENDING

THE MUNICIPAL CODE BY ADDING A

NEW CHAPTER 9.99 PERTAINING TO

ACCESS TO HEALTH CARE FACILITIES

WHEREAS, provision of and access to health care

services and to places of worship are critically and uniquely

important to the public health, safety, and welfare so that

persons desiring to provide or needing access to such services

should not be hampered, impeded, harassed or intimidated from

providing or obtaining those services;

WHEREAS, persons attempting to access or depart from

health care facilities and places of worship have been

particularly subject to harassing or intimidating activity tending

to hamper or impede their access to or departure from those

facilities by persons approaching within extremely close

proximity and shouting or waving objects at them;

WHEREAS, such activity near health care facilities and

places of worship creates a “captive audience” situation because

persons providing or seeking health care services or religious

services cannot avoid the area outside of health care facilities or

places of worship if they are to provide or receive the health

care services or participate in the religious services and the

physical and emotional ailments or conditions of patients can

make them especially vulnerable to the adverse psychological

and emotional effects of such harassing or intimidating activities

directed at them from extremely close proximity;

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WHEREAS, the adverse physiological and emotional

effects created by such harassing or intimidating activities may

pose health risks, interfere with medical treatment, diagnosis or

recovery or cause persons to delay or forgo medical treatment;

WHEREAS, such harassing or intimidating activities

that tend to hamper, hinder or impede provision of or access to

health care services or to places of worship undermine a

person’s right to seek preservation of personal health and

legitimate medical treatment, and interfere with a person’s

freedom of religion;

WHEREAS, this “captive audience” situation requires

the enactment of reasonable time, place, and manner restrictions

to separate and protect persons expressing their views and

persons wishing to access health care facilities and places of

worship without direct confrontation, hindrance, harassment or

intimidation;

WHEREAS, this ordinance is a necessary time, place

and manner restriction intended to reconcile and protect the First

Amendment rights of persons near health care facilities and

places of worship and the rights of persons seeking to use health

care facilities or places of worship to be free from direct

confrontation, hindrance, harassment, intimidation and harm;

WHEREAS, this ordinance does not preclude protesting,

picketing, demonstrating, or counselling activities near a health

care facility or place of worship, but is intended to preclude only

those activities involving harassment, intimidation or intrusion

which have the effect of foreclosing, hampering, or impeding

access to health care services or places of worship and persons

seeking to enter or leave health care facilities or places of

worship; and

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WHEREAS, existing law does not adequately protect

such access to health care facilities or places of worship.

NOW, THEREFORE, THE CITY COUNCIL OF THE

CITY OF SANTA BARBARA DOES ORDAIN AS

FOLLOWS:

SECTION 1. Title 9 of the Santa Barbara Municipal

Code is amended by adding Chapter 9.99 which reads as

follows:

9.99.010 Definitions.

As used in this Chapter, the following terms and phrases

shall have the indicated meetings:

A. ACCESS AREA. Any portion of a public street or

other public place or any place open to the public within one

hundred (100) feet of the premises of a health care facility or

place of worship.

B. HEALTH CARE FACILITY. Any medical or

health facility, hospital or clinic within the City which is

licensed under State law or any building, office or other place

within the City regularly used by any health care provider

licensed under State law to provide medical, nursing, or health

care or advice to patients. A health care facility includes but is

not limited to any buildings, appurtenances and grounds,

entrances, parking facilities, and driveways.

C. PLACE OF WORSHIP. A place of worship

includes but is not limited to any buildings, appurtenances and

grounds, entrances, parking facilities, and driveways where

persons gather to worship when the same are used solely and

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exclusively for religious worship.

D. DEMONSTRATION ACTIVITY. All expressive

and symbolic conduct, whether active or passive, which shall

include, but not be limited to, protesting, picketing, distributing

literature, and engaging in oral or silent protest, education or

counseling activities.

E. DRIVEWAY AREA. That portion of a street

right-of-way (including a sidewalk) generally improved for the

purposes of providing a vehicular access to adjacent private

property. At the request of a health care facility or place of

worship, the City of Santa Barbara will indicate (such as

through the use of painted lines) the perimeter boundaries of a

driveway area.

9.99.020 Impeding Access Prohibited.

A. DEMONSTRATION ACTIVITY -- OBLIGA-

TION TO WITHDRAW. No person, in the course of

demonstration activity within the access area of a health care

facility or place of worship, acting alone or in concert with

others, shall impede or hamper the free access to or departure

from any health care facility or place of worship by failing to

withdraw immediately to a distance of at least eight (8) feet

away from any person who has requested such withdrawal.

“Impede” or “Hamper” means to obstruct, hinder or delay.

B. WITHDRAWAL. For the purposes of this Section,

withdrawal may be requested by a person verbally, or by

carrying or wearing a visible sign clearly indicating such

withdrawal request. Statements by a person, or signs carried or

worn by a person displaying words or symbols such as or similar

in effect to “stop,” “stop it,” “withdraw,” “back off,” “get

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away,” or “leave me alone” shall be sufficient to constitute a

violation of this Section. Mere statements of opinion or

disagreement made in the absence of a request to withdraw shall

not be construed to be a request under this Section.

C. DISTANCE. Distance under this Section 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.

For purposes of the preceding sentence, the term “body” shall

include any natural or artificial extension thereof, including, but

not limited to, and outstretched arm or handheld sign.

9.99.030 Access to Driveway Areas.

No person shall conduct any demonstration activity

within the driveway area or within eight (8) feet of the driveway

area of a health care facility or place of worship, provided

however that it shall be lawful for a person to use a public

sidewalk or street right-of-way adjacent to a health care facility

or place of worship in order to traverse a driveway area. 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.

9.99.040 Private Right of Action.

A. REMEDIES. Any person who is seeking or intends

to seek access to a health care facility or place of worship and is

aggrieved by an act prohibited by this Chapter may bring an

action for damages, injunctive and/or declaratory relief, as

appropriate, in a court of competent jurisdiction against any

person who has violated, has conspired to violate or proposes to

violate its provisions.

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B. ATTORNEY FEES - CIVIL PENALTIES. Any

person who prevails in such an action shall be entitled to recover

from the violator those damages, costs, attorneys’ fees and such

other relief as determined by the court. In addition to all other

damages, the court may award to the aggrieved person a civil

penalty of up to One Thousand Dollars ($1,000) for each

violation.

C. REMEDIES NOT EXCLUSIVE. The remedies

provided by this Section are in addition to any other legal or

equitable remedies the aggrieved person may have and are not

intended to be exclusive.

Bill No. 4825

Ordinance No. 4812

Adopted May 18, 1993

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.