Opposition Brief — Edwards v. City of Santa Barbara

No. 98-1074

Supreme Court, U.S

y ft E OD

FEB Ss 1999

om ns

IN THE ~

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

CITY OF SANTA BARBARA,

Petitioner,

VICKIE L. EDWARDS AND KATHLEEN ROSE MCUCAULLEY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Jay Alan Sekulow* Kevin H. Theriot

Walter M. Weber THE AMERICAN CENTER FOR

THE AMERICAN CENTER FOR LAW AND JUSTICE

LAW AND JUSTICE 415 Beckrich Road,

1000 Thomas Jefferson St., Suite 210

N.W., Suite 609 Panama City, FL 32407

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

(850) 236-0098

Andrew W. Zepeda

Brendan Macaulay

9107 Wilshire Boulevard,

Suite 800

Beverly Hills, CA 90210

(310) 274-8700

Attorneys for Respondents

i

QUESTIONS PRESENTED

Whether this Court should review a district court order

where that order is still pending on appeal in a separate

proceeding in the court of appeals, that appeal was not

part of the decision for which petitioner seeks certiorari,

and petitioner has not purported to petition for certiorari

before judgment in the separate appeal which does

address the order in question?

Whether an ordinance imposing “floating bubble zones”

on public sidewalks is unconstitutional?

Whether an ordinance imposing restrictions on “{alll

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,

is unconstitutional?

Whether the distinction in an ordinance between “words

or symbols such as or similar in effect to ‘stop’ . . . or

‘leave me alone,’” on the one hand, and “statements of

opinion or disagreement,” on the other, is an

unconstitutionally vague basis for triggering a

governmentally enforced audience veto on speech in

traditional public fora?

il

PARTIES

The City of Santa Barbara, petitioner in No. 98-1074, is

the respondent in No. 98-1025. Vickie Edwards and Kathleen

McCaulley, respondents in No. 98-1074, are the petitioners in

No. 98-1025.

ill

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AND

ee OU Cb se eG he ensactaatcseveceves 4

COUNTER-STATEMENT OF THE CASE ............ 4

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y J awe, Ce tot a. oo waka u +s =

a. “Demonstration ban” .................. 5

b. “Floating bubble zone” ................ 7

3. RU ENO sii iints ce cece cee ec een 8

REASONS FOR DENYING THE WRIT ............. 12

I. THE CITY’S PETITION DOES NOT

COMPLY WITH THIS COURT’S RULES. ..... 12

iv

Il. THE CITY DOES NOT SEEK OR CLAIM TO

SEEK CERTIORARI BEFORE JUDGMENT

AND IN ANY EVENT DOES NOT MAKE A

SHOWING OF IMPERATIVE PUBLIC

IMPORTANCE IN IMMEDIATE

DETERMINATION BY THIS COURT......... 13

Ill. THERE IS NO CONFLICT WARRANTING

ad EEE eT PCr re ree 14

IV. THE DECISION BELOW WAS PLAINLY

CRN conse dcbesdavuckceeeuMeee an ees 16

V. THE DECISION BELOW IS ALSO FULLY

SUPPORTABLE ON ALTERNATIVE

CAE sds Cha sob 0 b¥s v4 oe eeen nea, 20

CR 95s oo AG wees Rane eae eae 21

APPENDICES

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

District of California (Oct. 6, 1997) (second

order partially reissuing preliminary injunction

against chalienged ordinance) ................ la

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

Circuit (Dec. 9, 1997) (staying appellate

proceedings in appeal from second order

partially reissuing preliminary injunction) (No.

DP UUED 60 i555 50055 cig Sel cere oer eweeeees 3a

Vv

TABLE OF AUTHORITIES

Cases

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

SO Re FOP ONT 5h 5 6 ere Re ws bes ss 9, 20

Edwards v. City of Santa Barbara

No. CV 94-2243 RG (JRx) (C.D. Cal. May 24, 1994) 3,8

Edwards v. City of Santa Barbara

883 F. Supp. 1379 (C.D. Cal. 1995) .......... 3, 8-10, 18

Edwards v. City of Santa Barbara

70 F.3d 1277 (Oth Cir. 1995) ................ 3, 10, 11

Edwards v. City of Santa Barbara

No. CV 94-2243 RSWL (C.D. Cal. July 16, 1996) ... 2, 3,

10, 11, 13, 18

Edwards v. City of Santa Barbara

No. CV 94-2243 RSWL (C.D. Cal. Oct. 6, 1997) .... 2,3,

11,13

Edwards v. City of Santa Barbara

No. 97-56485 (9th Cir. Dec. 9, 1997) ........ 2,3, 11, 14

Edwards v. City of Santa Barbara

150 F.3d 1213 (9th Cir. 1998) ............. ye ee

Edwards v. City of Santa Barbara

No. 95-56790 (9th Cir. Oct. 6, 1998) ............. 3,11

vi

Fargo Women’s Health Organization, Inc. v.

Lambs of Christ

i ee es ea 15

Forsyth County v. Nationalist Movement

50a Us ERP REOOED. 6a ne cde eee ad bed oeiev ea vedo 19

Hill v. City of Lakewood

911 P.2d 670 (Colo. Ct. App. 1995), vacated sub nom.

Hill v. Colorado, 519 U.S. 1145 (1997), on remand

949 P.2d 107 (Colo. Ct. App. 1997), cert. granted

i, (Cobo. argued Oct. 19, IUGR Ses siies vex caer 15

Kolender v. Lawson

SPi UE. See Cee 5 a6 He haw eve ane cnthao aueews 19

Lucero v. Trosch

Ad © oP CL, TOF sess es OO eee 14

Madsen v. Women’s Health Center, Inc.

Ee a Tee Ce ies hic ooh eae vncaweun er 16, 18, 19

NAACP v. Claiborne Hardware Co.

a Be Ly ” sae ee ae 18

Planned Parenthood Ass'n of San Mateo County v.

Operation Rescue of California

50 Cal. App. 4th 290, 57 Cal. Rptr. 2d 736, (1996)

cert. dented, 1186S. Ce. S491997) 206 0c. 6a i eeness 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 (Sth Cir. 1997) ..............- 10,11, 15

Vii

Schenck v. Pro-Choice Network of Western New York

PEP a BOP CLOUT ons WR. 10, 14, 17-19

Thornhill v. Alabama

$10 U.S. 88 (1940) ............................. 19

United Food and Commercial Workers Int’l Union v

IBP, Inc.

857 F.2d 422 (8th Cir. 1988) ..................... 15

Constitutional Provisions

U.S. Const. amend. I ..................... 4,5, 9, 15-17

U.S. Const. amend. XIV ......................... 4,5

Statutory Provisions

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rd SS OS | eee 8

WP Me BMD iin noi Deno he Oe cet dae 8

Rules

U.S. Supreme Court Rule 11 ..................... 4,14

U.S. Supreme Court Rule 14.1.................... ais

U.S. Supreme Court Rule 14.4...................... 13

Vill

Ordinance

City of Santa Barbara Ordinance No. 481 2

4-8, 18-20

i ake

No. 98-1074

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

CITY OF SANTA BARBARA,

Petitioner,

V.

VICKIE L. EDWARDS AND KATHLEEN ROSE MCCAULLEY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

INTRODUCTION

The underlying litigation in this case involves a

constitutional challenge to two separate provisions of an

ordinance of the City of Santa Barbara, California. One

provision imposes bans on “demonstration activity” along

stretches of the public sidewalks adjacent to any “health care

facility” or “place of worship.” This “demonstration ban” 1s

addressed in the petition for certiorari docketed as No. 98-1025

in this Court. A second provision imposes floating speech-free

bubble zones within 100 feet of any “health care facility” or

“place of worship.” That provision is addressed in the petition

for certiorari -- opposed herein -- docketed as No. 98-1074.

2

The district court preliminarily enjoined the “demonstra-

tion ban” in its entirety, Pet. App. E in No. 98-1025, but the

Ninth Circuit reversed, Pet. App. A in No. 98-1025.'

Accordingly, the petitioners in No. 98-1025 are plaintiffs

Vickie Edwards and Kathleen McCaulley.

The “floating bubble” ordinance was preliminarily

enjoined in two stages, in two separate district court decisions,

which led to two separate appeals in the Ninth Circuit, one of

which is still pending. First, the district court enjoined the

“tloating bubbles” as applied to “places of worship.” Pet. App.

59a in No. 98-1025. The City appealed that order. Second,

after the City took its appeal from the first ruling, but before the

Ninth Circuit decided that appeal, the district court enjoined the

“floating bubbles” as applied to “health care facilities.” Resp.

App. 1 in No. 98-1074. The City appealed that order as well,

and at the City’s request, that second appeal was stayed. Resp.

App. 2 in No. 98-1074. That second appeal has not yet been

decided. In the first appeal, the Ninth Circuit affirmed in

pertinent part, i.e., rejected the City’s appeal from the

preliminary injunction against floating bubble zones outside

places of worship. Pet. App. A in No. 98-1074. Accordingly,

the petitioner in No. 98-1074 is the defendant City of Santa

Barbara.

OPINIONS BELOW

The petitioner City of Santa Barbara (“City”) has not

listed all of “the official and unofficial reports of the opinions

and orders entered in the case by courts,” as required by this

Court’s rules. See Sup. Ct. R. 14.1(d). Rather, the City lists

‘“Pet. App.” refers to an appendix to a petition for certiorari. “Resp.

App.” refers to the appendix to the respondents’ Brief in Opposition.

es

3

only the August 11, 1998 decision of the Ninth Circuit. This

omission materially misrepresents the history of the litigation.

The course of this somewhat complicated case is therefore set

forth infra, in respondents’ Counter-Statement of the Case.

All decisions in this litigation to date are entitled

Edwards v. City of Santa Barbara. The decision of the district

court initially denying a preliminary injunction is unreported.

Pet. App. B in No. 98-1025. The decision of the district court

granting the renewed motion for preliminary injunction is

reported at 883 F. Supp. 1379 (C.D. Cal. 1995). Pet. App. C in

No. 98-1025. The order of the Ninth Circuit vacating and

remanding is noted at 70 F.3d 1277 (9th Cir. 1995). Pet. App.

D in No. 98-1025. The first decision of the district court

reissuing the preliminary in part is unreported. Pet. App. E in

No. 98-1025. The second decision of the district court reissuing

the preliminary injunction in remaining part is unreported.

Resp. App. 1. The decision of the Ninth Circuit affirming in

part and reversing in part the first partial reissuance of the

preliminary injunction is reported at 150 F.3d 1213 (9th Cir.

1998). Pet. App. A in No. 98-1025. The order of the Ninth

Circuit denying rehearing is unreported. Pet. App. H in No. 98-

1025. There has been no decision to date in the Ninth Circuit on

the City’s appeal from the second partial reissuance of the

preliminary injunction. The Ninth Circuit’s order staying

proceedings in that appeal is unreported. Resp. App. 2.

JURISDICTION

Petitioner’s statement of jurisdiction is incomplete. The

constitutional merits of the ordinance provision at issue in No.

98-1074 -- creating floating bubble zones outside any “health

care facility” or “place of worship” -- was the subject of two

separate district court decisions and two separate appeals to the

Ninth Circuit, only one of which has been decided. Petitioner

4

mentions only the appeal which was decided. As to the other

appeal, petitioner could only seek certiorari before judgment.

See Sup. Ct. R. 11; 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND ORDINANCE

Petitioner’s listing of constitutional provisions and

ordinances involved is incomplete. The text of the First and

Fourteenth Amendments to the United States Constitution are

set forth in Appendix I to the Petition in No. 98-1025. The text

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

in full in Appendix J to the Petition in No. 98-1025.

COUNTER-STATEMENT OF THE CASE

1. Background

Respondents Vickie L. Edwards and Kathleen Rose

McCaulley (“Edwards and McCaulley) have engaged 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.

Edwards and McCaulley have at all times conducted themselves

in a peaceful and law-abiding manner.

, 4 Ordinance

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

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

The City does not in fact seek certiorari before judgment. The petition

explicitly seeks review of “the judgment and opinion of the . . . Ninth Circuit

entered on August 11, 1998.” Pet. at 1. See also Pet. at 7 (“This Petition

seeks review only of the portion of the Ninth Circuit decision enjoining

enforcement of the eight foot back away provision”) (emphasis added).

5

The ordinance (“Ord.”) that the City enacted imposes two forms

of restrictions on speech, a “demonstration ban” provision (or

“driveway provision”), and a “floating bubble” (or “floating

buffer”) zone provision. Edwards and McCaulley have

challenged both provisions under the First and Fourteenth

Amendments.

Both ordinance provisions apply to “demonstration

activity,” which the ordinance defines as follows:

DEMONSTRATION ACTIVITY. A// 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).

a. “Demonstration ban”

The “demonstration ban” states:

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 piace of

worship, provided however that it shal] 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.

6

Ord. § 9.99.030 (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.”

“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 health 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:

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.

Ord. § 9.99.010(C).

Se Aaa eS Ae eT, ieee re

7

b. “Floating bubble zone”

The floating bubble zone provision applies in an “access

area,” which is defined as

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.

Ord. § 9.99.010(A). The floating zone provision states:

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

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 2 yerson 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.

Ord. § 9.99.020 (emphasis added).

3. Course of litigation

Edwards and McCaulley filed suit in the United States

District Court for the Central District of California, challenging

the constitutionality of the demonstration ban and the floating

zones and alleging that these restrictions chilled and burdened

their expressive activities. The district court had jurisdiction

under 28 U.S.C. §§ 1331, 1343.

The district court initially declined to grant a preliminary

injunction. Pet. App. B in No. 98-1025. Upon consideration of

a renewed motion, filed after discovery was conducted, the

district court enjoined enforcement of both the demonstration

ban and the floating bubble zones. App. C in No. 98-1025.

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

“extraordinarily broad language” of the definition of

“demonstration activity,” the ordinance “applies to all

conceivable expression.” Pet. App. 27a n.6 in No. 98-1025. |

The demonstration ban (which the district court called the

“Driveway Provision”) therefore bans

all expressive activity, whether peaceful or harassing,

—

bik Ae in i i alt dah AC OM Pc li ts

9

vocal or silent, . . . within the eight-foot zone on either

side of the driveway leading to the clinic . . .. even silent

prayer or expressive t-shirts .. . .

It is axiomatic in American constitutional

jurisprudence that the state cannot prohibit all protected

forms of expressive activity in a public forum. See, e. Z.,

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”) . .. .

Pet. App. 37a-38a in No. 98-1025.

The district court concluded:

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.

Pet. App. 42a in No. 98-1025.

Turning to the floating zones, the district court noted that

these zones apply to “demonstration activity.” Pet. App. 43a in

No. 98-1025. Thus, “[t]o the extent that the definition of

‘demonstration activity’ is overbroad, the Bubble Zone

provision suffers from the same constitutional infirmity,” id

Furthermore, the floating zones literally only apply to those

engaged in demonstration activity (i.e., expression), and to this

extent the ordinance “impermissibly singles out expressive

activity” for restriction. Jd. at 43an.16. More fundamentally,

10

the district court held the floating zones to be unconstitutionally

overbroad. Jd. at 45a-49a. The floating zones limit protected

speech on the basis of “subjective listener reaction,” id. at 47a,

thus conferring a governmentally enforced audience veto on the

speaker’s expression in public places, id. at 46a, 48a.

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, Sabelko v. City of

Phoenix.’ See Edwards v. City of Santa Barbara, 70 F.3d 1277

(9th Cir. 1995). Pet. App. D in 98-1025.

On remand, the district court again enjoined enforcement

of the “demonstration ban” (or “driveway provision”). App. E

in No. 98-1025. As for the “floating zones” (or “bubble

zones’), the district court enjoined that provision oniy as applied

to “places of worship,” and not as applied to “health care

facilities.” Jd. at 59a. (The district court felt constrained by the

intervening Sabelko decision to uphold the floating zones as

applied to “health care facilities.” Jd. at 67a-69a.)

The City appealed again.

While the City’s appeal was pending, this Court decided

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

357 (1997), which overturned “floating zones” in an injunction.

In light of Schenck, this Court vacated, and remanded for further

consideration, the Ninth Circuit’s Sabelko ruling. On remand,

the Ninth Circuit reversed itself and overturned the ordinance

“In Sabelko, the Ninth Circuit upheld an ordinance imposing floating

bubble zones. After remand from this Court, the Ninth Circuit 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).

1]

imposing floating zones at issue in Sabelko. Pet. App. C in No.

98-1074. Plaintiffs Edwards and McCaulley then went back

into district court in the present case and secured a preliminary

injunction against the Santa Barbara ordinance “as it applies to

health care facilities,” Resp. App. 1 in No. 98-1074. (This was

the only challenged portion of the ordinance not enjoined in the

district court’s prior order on remand. See App. E in No. 98-

1025.)

The City appealed once more. However, at the City’s

request, this latest appeal was stayed pending judgment in the

City’s prior appeal. Resp. App. 2 in No. 98-1074.

In that prior appeal, the Ninth Circuit then proceeded to

affirm in part and reverse in part. Edwards v. City of Santa

Barbara, 150 F.3d 1213 (9th Cir. 1998). Pet. App. A in No. 98-

1025. The Ninth Circuit reversed as to the demonstration ban,

i.e., upheld the restriction. Jd. at Sa-6a. The court affirmed as

to the floating zones outside places of worship, i.e., struck down

that provision. /d at 6a. (The Ninth Circuit noted that the

question of the constitutionality of floating zones outside health

care facilities was not part of the appeal it was deciding but

rather had been the subject of subsequent district court

proceedings. Jd. at S5an.5. Hence, the Ninth Circuit did not

decide that issue, which remained pending in a separate appeal.

See Resp. App. 2 in No. 98-1074.)

Edwards and McCaulley filed a timely petition for

rehearing as to the demonstration ban, which the Ninth Circuit

denied. Pet. App. H in 98-1025.

Edwards and McCaulley next filed a petition for a writ

of certiorari (No. 98-1025) on the constitutionality of the

“demonstration ban.” The City followed with its own petition

for certiorari (No. 98-1074) on the floating zones.

12

REASONS FOR DENYING THE WRIT

This Court should deny the City’s petition for certiorari

for the following reasons:

* The City’s petition does not comply with this

Court’s rules.

* The City’s petition does not request review

before judgment, yet the issue the petition

addresses (floating bubble zones outside “health

care facilities”) was not decided by the Ninth

Circuit; rather, that issue is the subject of a

separate appeal not yet decided by the court

below.

® There is no conflict warranting review.

* The decision below was plainly correct insofar

as it overturned “floating bubble zones” on

public sidewalks.

* The decision below is fully justifiable on

additional, alternative grounds.

I. THE CITY’S PETITION DOES NGT COMPLY

WITH THIS COURT’S RULES.

Noncompliance with this Court’s rules justifies the

denial of certiorari:

ee a eT ee ee ?

The failure of a petitioner to present with accuracy,

brevity, and clarity whatever is essential to ready and

adequate understanding of the points requiring |

consideration is sufficient reason for the Court to deny

13

a petition.

Sup. Ct. R. 14.4. The City’s petition is defective in multiple

respects. Most notably, the petition fails to mention or include

in the appendix several important decisions in the lower courts,

contrary to Rules 14.1(d) and 14.1(i)(ii). The petition fails to

mention, contra Rule 14. 1(e), that the issue to which the City’s

arguments are devoted -- the constitutionality of floating bubble

zones outside “health care facilities” -- was not before the Ninth

Circuit in the appeal that court decided but rather was -- and is --

the subject of a separate appeal still pending in that court. As

noted earlier, the listing of constitutional provisions and statutes

involved is incomplete, contra Rule 14.1(f), and the statement

of the case is incomplete to the point of being positively

misleading, contra Rule 14.1(g). (The City mentions that it

appealed twice from district court injunctions issued after the

Ninth Circuit’s initial remand. Pet. at 6, 7. The City fails to

mention that the second appeal was not consolidated with the

first and has not been decided by the Ninth Circuit. See

generally Respondents’ Counter-Statement of the case, supra.)

Il. THE CITY DOES NOT SEEK OR CLAIM TO

SEEK CERTIORARI BEFORE JUDGMENT AND

IN ANY EVENT DOES NOT MAKE A SHOWING

OF IMPERATIVE PUBLIC IMPORTANCE IN

IMMEDIATE DETERMINATION BY THIS

COURT.

The City’s petition is devoted almost exclusively to the

question of the constitutionality of floating bubble zones outside

“health care facilities.” That portion of the ordinance, however,

was not enjoined by the district court and not addressed by the

Ninth Circuit in the decision for which petitioners seek review.

See Pet. App. 59a in No. 98-1025: Pet. App. 5a n.5 in No. 98-

1074. Rather, that provision was enjoined ina later order, Resp.

14

App. 1, which is the subject of a separate appeal still pending in

the Ninth Circuit, Resp. App. 2.

At best, then, the City’s petition could have sought

certiorari, before judgment, in that different case, still pending

before the Ninth Circuit. The City failed even to mention that

other appeal in its petition, however. On the contrary, the City

expressly limited its petition to seeking review of the Ninth

Circuit’s decision which overturned the floating zones outside

places of worship, not health care facilities. Supra note 2. In

any event, certiorari before judgment is disfavored and

will be granted only upon a showing that the case is of

such imperative public importance as to justify deviation

from normal appellate practice and to require immediate

determination in this Court.

Sup. Ct. R. 11. The City has not even attempted to make such

an extraordinary showing.

Il. THERE IS NO CONFLICT WARRANTING

REVIEW.

The City has identified no conflict in the circuits on the

constitutionality of floating anti-speech bubble zones. On the

contrary, the circuits and the state courts are uniform in rejecting

such zones. See Lucero v. Trosch, 121 F.3d 591, 607 (11th Cir.

1997) (overturning “floating 20-foot buffer zone” provision of

injunction in light of Schenck); Planned Parenthood Ass’n of

San Mateo County v. Operation Rescue of California, 50 Cal.

App. 4th 290, 303-04, 57 Cal. Rptr. 2d 736, 744 (1996)

(overturning injunctive provision forbidding “‘approaching

abortion business staff or patients “‘once that person has made

it unmistakably clear that he or she does not wish to be

approached’” because that provision “limits speech to that

999

15

consented to by the listener” and burdens “peaceable but

unwelcome” speech), cert. denied, 118 S. Ct. 54 (1997);

Sabelko v. City of Phoenix, 120 F.3d 161, 163 n.1, 165 (9th Cir.

1997) (overturning eight-foot “floating buffer provision” in

ordinance because it imposes “a broad prohibition on speech

with which it is difficult to comply” and gives audience veto

power “effectively preventing handbilling and normal

conversation”). See also United Food and Commercial Workers

Int'l Union v. IBP, Inc., 857 F.2d 422, 425 n.4, 435 (8th Cir.

1988) (overturning statutory ban on “persisting in talking to or

communicating in any manner with’” a person or persons

‘against his, her or their will’” in order to persuade that person

or persons to quit or refrain from seeking certain employment:

“as written this clause plainly runs afoul of the First

Amendment”); Fargo Women’s Health Organization, Inc. vy.

Lambs of Christ, 488 N.W.2d 401, 407 n.1, 411 (N.D. 1992)

(overturning, as violative of the First Amendment, an injunctive

ban on “‘speaking to staff and patients . . . who indicate that

they do not wish to be spoken to”” and “‘distributing leaflets or

brochures to any person who has indicated orally or by gesture

that such person does not wish to receive such literature’”).°

*One lower court strayed twice from this consensus, and the matter is now

pending before the Supreme Court of Colorado. Hill v. City of Lakewood,

911 P.2d670 (Colo. Ct. App. 1995), vacated sub nom. Hill v. Colorado, 519

U.S. 1145 (1997), on remand, 949 P.2d 107 (Colo. Ct. App. 1997), cert.

granted, id. (Colo. argued Oct. 19, 1998). Should that state supreme court

depart from the consensus and uphold the floating bubble zone statute at

issue, review of that case would be appropriate. But that conflict has not yet

materialized, nor should this Court assume that the Supreme Court of

Colorado will fail to be as vigilant as the other lower courts (and this Court)

in rejecting floating anti-speech zones.

16

1V. THE DECISION BELOW WAS PLAINLY

CORRECT.

In Madsen v. Women’s Health Center, Inc.,512 U.S. 753

(1994), this Court struck down an injunctive version of floating

personal no-speech zones. That “no approach” provision

forbade “physically approaching any person seeking services”

at an abortion business “unless such person indicates a desire to

communicate,” id. at 760. This injunctive provision applied to

all communications, however peaceful. Further, this restriction

made the speakers’ right to communicate dependent upon the

consent of the audience. This Court held that these features

doomed the Madsen “no approach” provision:

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

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.

Absent evidence that the protesters’ speech is

independently proscribable (i.e., “fighting words” or

threats), or is so infused with violence as to be

indistinguishable from a threat of physical harm, . . . this

provision cannot stand. As a general matter, we have

indicated that in public debate our own citizens must

tolerate insulting, and even outrageous, speech in order

to provide adequate breathing space to the freedoms

protected by the First Amendment. ... The “consent”

requirement alone invalidates this provision; it burdens

more speech than is necessary to prevent intimidation

and to ensure access to the clinic.

Id. at 774 (internal quotation marks, citations, and footnote

omitted; emphasis in original).

17

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

519 U.S. 357 (1997), this Court struck down another floating

bubble zone, this one also contained within an injunction. This

provision banned “demonstrating . . . within fifteen feet of any

person or vehicle seeking access” to abortion businesses, subject

to an exception for two sidewalk counselors. Jd. at 366 n.3.

The audience had the power to veto even these two counselors’

speech, at which point the fifteen-foot no-speech bubble would

apply to these speakers as well. Jd Despite a record of

“extraordinary” lawlessness by protesters, id. at 383, 377, this

Court invalidated a floating zone imposed upon the very persons

found to have engaged in misconduct.

The floating buffer zones prevent defendants -- except

for two sidewalk counselors, while they are tolerated by

the targeted individual -- from communicating a

message from a normal conversational distance or

handing leaflets to people entering or leaving the clinics

who are walking on the public sidewalks. This is a

broad prohibition, both because of the type of speech

that is restricted and the nature of the location.

Leafletting and commenting on matters of public

concern are classic forms of speech that lie at the heart

of the First Amendment, and speech in public areas is at

its most protected on public sidewalks, a prototypical

example of a traditional public forum. ... We need not

decide whether the governmental interests involved

would ever justify some sort of zone of separation

between individuals entering the clinics and protesters,

measured by the distance between the two. We hold

here that because this broad prohibition on speech

“floats,” it cannot be sustained on this record.

Id. at 377 (emphasis added). This Court went on to catalogue

the nightmarish difficulty of complying with floating zones. Jd.

18

at 377-78. “This lack of certainty leads to a substantial risk that

much more speech will be burdened than the injunction by its

terms prohibits.” Jd. at 378.

The ordinance in the present case imposes floating

bubble zones that plainly violate the norms of Madsen and

Schenck. As in Madsen and Schenck, the challenged zones

restrict even entirely peaceful speech.® The tloating zones make

leafletting impossible. (This is clearly deliberate. The

ordinance explicitly measures the eight-foot no-speech zone

from any “outstretched arm,” Ord. § 9.99.020(C), i.e., from a

hand offering a leaflet.) As in Madsen and Schenck, the

challenged zones subject the speaker to the consent of the

listener, i.e., impose an audience veto on speech in a public

forum sidewalk. And, as in Schenck, the zones “float” with the

person invoking the bubble, making compliance exceedingly

difficult and thereby burdening even more speech.’

°A separate provision of the Santa Barbara ordinance provides:

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.

Ord. § 9.99.030. Edwards and McCaulley do not challenge this provision.

Pet. App. 44an.17 in No. 98-1025; id. at 60an.2. Hence, the City’s constant

refrain about the need to remedy obstruction and interference is purely a red

herring. See Pet. at 4-5 & n.1, 8-17. Moreover, the misconduct allegedly

perpetrated was by people other than Edwards and McCaulley. Pet. at 5 n.2.

The United States is not a nation where the misconduct of some people

justifies the suspension of the free speech rights of al/ people. See, e.g.,

NAACP vy. Claiborne Hardware Co., 458 U.S. 886 (1982).

’The City’s efforts to distinguish Schenck fail. The City argues that under

the Santa Barbara ordinance, a floating bubble zone ban on leafletting and

(continued...)

19

The City makes much of the fact that injunctions trigger

a higher standard of scrutiny than ordinances. See Madsen, 512

U.S. at 765. But the concerns this Court identified as

constitutional flaws in the floating zones in Madsen and

Schenck -- overbreadth, vagueness, imposition of a listener

consent requirement -- are also fatal to ordinances and statutes.

E.g., Thornhill v. Alabama, 310 U.S. 88 (1940) (overbreadth

doomed statute); Kolender v. Lawson, 461 U.S. 352 (1983)

(vagueness doomed statute); Forsyth County v. Nationalist

Movement, 505 U.S. 123 (1992) (risk of audience veto doomed

ordinance). If anything, the present ordinance more flagrantly

violates the constitutional right to free speech because it

restricts everybody, not just those particular individuals whom

a court has adjudicated as lawbreakers or abusers of the right to

protest.®

7(...continued)

conversation only becomes effective upon request, only applies to the

requesting individual, and may be waived to allow acceptance of a leaflet

Pet. at 15. But the same was true in Schenck. See 519 U.S. at 364 & n.1,

366 n.3, 367, 377.

*The City misleadingly states that the ordinance “requires a demonstrator

who is impeding access . . . to back off eight feet if a person specifically

requests the space.” Pet. at 4 (emphasis added). See also id. at 12 (falsely

implying ordinance only applies to an “obstructive protester”); id at 16

(same). In fact, the ordinance applies to amy person “in the course of

demonstration activity,” Ord. § 9.99.020(A), and categorically deems the

“failfure] to withdraw immediately to a distance of eight (8) feet” fo be

“imped[ing] . . . access,” id The ordinance thus equates “failing to

withdraw” with “impeding,” as the district court noted. Pet. App. at44an.18

in No. 98-1025. See also Appellant City’s Opening Brief in Edwards v. Cit

of Santa Barbara, Nos. 96-56790, 96-56262, 96-56558 (Dec. 2, 1996), at 33

(City admits that floating zones of Santa Barbara ordinance impose “eight-

foot ‘no speech’ proscriptions effective within 100 feet of these special

places”).

20

¥. THE DECISION BELOW IS ALSO FULLY

SUPPORTABLE ON ALTERNATIVE GROUNDS.

Review is also unwarranted because the floating bubble

zone ordinance here already suffers from additional consti-

tutional defects that require its invalidation. Thus, the judgment

below would have to be affirmed in any event on alternative

grounds.

The floating zones apply only to people “in the course of

demonstration activity,” i.e., these zones burden speech and only

speech. Ord. § 9.99.020(A). The speech in question --

demonstration activity -- is defined to encompass the universe

of expression, including even t-shirts, buttons, leafletting, and

“silent protest.” See Ord. § 9.99.010(D). Hence, the floating

bubble zones incorporate -- and burden -- a class of speech that

covers the universe of expressive activity. Pet. App. 27a n.6,

37a-42a in No. 98-1025. A provision that “criminalizes the

entire universe of expressive activity,” id. at 42a, cannot pass

muster even in a nonpublic forum, Board of Airport Comm'rs

v. Jews for Jesus, Inc., 482 U.S. 569 (1987), much less in a

traditional public forum sidewalk.

Finally, the ordinance imposes criminal liability based

upon an unconstitutionally vague distinction. A listener’s

“words or symbols such as or similar in effect to ‘stop,’ . . .

‘back off,’ ‘get away,’ or ‘leave me alone’” count as a request

which triggers the floating zones, Ord. § 9.99.010(B), while

“tmjere statements of opinion or disagreement” do not trigger

a zone, id. This “distinction” is obscure in theory as well as in

practice. For example, “Get out of here” could easily mean

either “I’m not convinced” or “Please leave.” A wave of the

hand can be even more ambiguous. The speaker, however, risks

criminal (and civil) liability for incorrectly interpreting these

and a myriad of other “words or symbols.” Hence, the floating

zones are unconstitutionally vague.

CONCLUSION

This Court should deny the City’s petition in No. 98-

1074.

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

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 Respondents

February 3, 1999

APPENDICES

la

APPENDIX 1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 94-2243 RSWL

VICKIE L. EDWARDS, et al,

Plaintiffs,

V.

CITY OF SANTA BARBARA, et ai.,

Defendants.

ORDER GRANTING A PRELIMINARY

INJUNCTION

Lodged September 26, 1997

Signed October 6, 1997

Entered October 7, 1997

Pursuant to notice, plaintiffs’ motion for a preliminary

injunction to enjoin enforcement of the Bubble Provision, §

9.99.020, of Santa Barbara Ordinance No. 4812, as it applies to

health care facilities, came on for hearing on September 15,

1997. Based on the Court’s review and consideration of the

record in this case, and of the moving, opposition, and reply

papers, and good cause found therefore, this Court finds that the

Bubble Provision (§ 9.99.020) of Santa Barbara Ordinance No.

2a

4812, as it applies to health care facilities, violates the Free

Speech Clause of the First Amendment of the United States

Constitution. The Court further finds that the plaintiffs have

satisfied the requirements for a preliminary injunction; to wit,

the plaintiffs have demonstrated a likelihood of success on the

merits, and have suffered and will continue to suffer irreparable

injury unless a preliminary injunction is granted.

THEREFORE, IT IS HEREBY ORDERED that:

l. The plaintiffs’ motion for a preliminary

injunction enjoining enforcement of the Bubble Provision, §

9.99.020, of Santa Barbara Ordinance No. 4812, as it applies to

health care facilities, is GRANTED;

y A The surety bond previously given by the

plaintiffs shall be adequate security for the preliminary

injunction.

IT IS SO ORDERED.

Dated: Oct. 6, 1997

/s/ Ronald S. W. Lew

Ronald S. W. Lew

United States District Judge

3a

APPENDIX 2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 97-56485

VICKIE L. EDWARDS. ef ai..

Plaintiffs-Appellees,

VS.

CiTy OF SANTA BARBARA.

Defendant-Appellant.

and

HAL CONKLIN, in his official capacity as Mayor of the City

of Santa Barbara, et al,

Defendants

ORDER

Filed Decenaber 9, 1997

Before: Peter L. Shaw, Appellate Commissioner

Appellant’s motion to stay appellate proceedings is

granted in part.

4a

This appeal is stayed pending entry of judgment in

appeal nos. 97-56790, 96-56262, and 96-56558. Within seven

days from the entry of judgment in these consolidated cases,

appellant shall notify this court of the entry to facilitate

docketing of the briefing schedule in this appeal.

Appellant’s opening brief is due 21 days after the entry

of judgment in appeal nos. 97-56790, 96-56262, and 96-56558.

Appellees’ answering brief is due 21 days after the opening brief

is filed. Appellant’s optional reply brief is due within 14 days

of service of the answering brief.

/s/ Peter L. Shaw

General Order 6.3(e)

vos es cilia arene US 3 a