INTRODUCTION:
Goal: To prepare attorneys to
defend the free speech
rights of life advocates.
Types of Speech Activities Contemplated:
 Picketing
 Leafleting
 Sidewalk Counseling
 Life Chains
 40 Days for Life Vigils
Constitutional Rights
First Amendment –
Primarily, freedom of
speech, but also
implicating—
 Freedom of assembly
 Free exercise of religion
 Freedom of press
(including leafleting)
Section I:
GENERAL
PRINCIPLES AND
COMMON
APPLICATIONS
Restrictions on Speech
The Types of Fora:
Non-Public Forum:
Definition: Any property not open to
public speech activities.
Non-Public Forum Test: Restrictions are
constitutional if they are –
1) reasonable; and
2) viewpoint neutral
Limited Public Forum
Definition: Forum created for a sole, specific
purpose, and not generally open for speech
Limited Public Forum Test: Restrictions are
constitutional if they are
 reasonable in light of the intended use of the
forum, and
 viewpoint neutral.
Designated Public Forum:
Definition: Property the State has opened for
expressive activity by all or part of the public.
Designated Public Forum Test:
Restrictions must be
1) content-neutral,
2) narrowly tailored to serve a
significant governmental interest, and
3) leave open alternative channels of communication
A public college opens up its campus quad to free
speech demonstrations but places the following
limitations on speakers:
Cannot create a
disturbance,
Cannot interfere with
campus activities,
Cannot engage in
religious worship or instruction.
NO - Court struck the 3rd restriction because once the
college created a forum, it could not limit expression to
secular content.
Public Forum:
Traditional public forum: A place where the public
generally has unconditional access and which has been
held in trust for public use and has been used for
purposes of assembly, communicating thoughts between
citizens, and discussing public questions.
Examples :
 Streets
 Sidewalks *
 Parks
*Note: If forum is a sidewalk, it does not matter what public entity owns it.
Public Forum:
Public Forum Test: Government may impose
reasonable restrictions on the time, place, or
manner of protected speech, provided they are
1) content neutral,
2) narrowly tailored to serve a significant
governmental interest,
3) leave open ample
alternative channels
of communication.
Public Forum: Content Neutrality
1) The regulation must be justified without
reference to content of the speech.
Ctr. for Bio-Ethical Reform, Inc. v. Los
Angeles County Sheriff D..., 533 F.3d 780
(9th Cir. 2008).
ACLU v. City of Las Vegas, 466 F.3d 784 (9th
Cir. 2006).
Tip: In the Ninth Circuit,
the prohibition on content
discrimination is enforced very
stringently, and usually shows
up in the context of exemptions.
Ex: City wants to ban all signs except their list of
favored uses. This is a good way to show the
content-based nature of a restriction.
Public Forum: Narrowly Tailored
2) The regulation of speech must be narrowly tailored to
achieve a significant government interest
• Narrowly tailored: Does the regulation prohibit more speech than
necessary? Restrictions which disregard less restrictive and more
precise means are not narrowly tailored
ACLU v. City of Las Vegas, 466 F.3d 784,
797 (9th Cir. 2006)
Project 80's v. Pocatello, 942 F.2d 635 (9th
Cir. 1991).
McIntyre v. Ohio Elections Comm'n, 514
U.S. 334 (1995).
Public Forum: Significant
Governmental Interest
2) The regulation of speech must be
narrowly tailored to achieve a significant
government interest
• Significant government interest:
– aesthetics,
– public safety,
– avoiding voter fraud,
– ensuring access to clinics,
– orderly flow of traffic,
– protecting property rights, etc.
Public Forum: Alternatives
3) The regulation of speech must leave open
ample alternative channels of communication
“If an ordinance effectively prevents a speaker
from reaching his intended audience, it fails to
leave open ample alternative
means of communication.”
Edwards v. City of Coeur
D'Alene (9th Cir. 2001).
Private Property:
There is no right to trespass on
private property, not open to
the public, to deliver message.
But…California Law may treat privately owned
property, open to the public, as a public forum.
Permit Requirements
When might I need a Permit?
 Sole use of the sidewalk
 Event in a park
 Group of more than 50 people are
participating at once
 Use of sound amplification devices
Evaluating permitting schemes
(1) No overly broad licensing discretion to
a government official.
(2) Time, place, and manner restrictions must be
content neutral.
(3) Narrowly tailored to serve significant
governmental interest, and
(4) Leave open ample alternatives for
communication.
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)
Grounds for Denial
Must set forth the grounds for denying the permit
narrowly and specifically--Shuttlesworth v.
Birmingham, 394 U.S. 147 (1969)
Must have evidence to support denial--Desert
Outdoor Advertising v. City of Moreno Valley, (9th Cir.
1996).
No unfettered discretion to set cost--Forsyth County
v. Nationalist Movement, 505 U.S. 123 (1992)
Permissible Discretion
Note that giving discretion to an official may
be allowed, if it is limited by specifically
articulated purposes, such as• coordinating multiple uses,
• preventing unlawful uses, and
• protecting public safety.
Long Beach Area Peace Network v. City of Long Beach,
522 F.3d 1010 (9th Cir. 2008).
Specific Pro-Life
Activities and
Potential Problems
Pro-life Activities
Leafleting
Picketing
Chalking
Sidewalk
Counseling
Life Chains and Vigils
Potential Problems
Be aware of potentially applicable
ordinances, such as –
–
–
–
–
–
sign ordinances,
permit requirements,
noise restrictions,
obstruction laws,
bubble zones.
Look for the common constitutional pitfalls of each
type of law.
Sign ordinances
laws limiting size, type,
and number of signs
 mostly apply to commercial or election signs
 cannot discriminate on basis of content
Obstruction and Loitering Laws
 CAUTION: Be aware of obstruction and anti-loitering
laws whenever engaged in activities on public property.
 Cities have a significant interest
in maintaining free flow of traffic
(pedestrian or motor).
 Look out for ordinances that give
sole discretion to police to decide
what constitutes a violation.
 Harassment and threats of arrest are common
Noise Restrictions
laws limiting the
level of noise in
certain areas and
regulating the use of
sound amplification
devices
California State Laws
Obstructing passage to health care facility –
California Penal Code § 602.11 (a)
 Trespass – California Penal Code § 602
 Interference with business activity – CPC §602.1
 FACE – California Penal Code § 423.2
 Vandalism – California Penal Code § 594
Local Ordinances
 San Marcos Anti-loitering/Trespass
 Glendora Mobile Billboard Advertising
Prohibition
 Laguna Beach Sidewalk Obstruction Law
How to find the law
• Google search for “city” municipal code or
“state” criminal code
• www.law.cornell.edu/states
•Categories under which applicable ordinances
may fall: “public peace,” “miscellaneous,”
“public welfare,” “crimes against property,”
“access to clinic,” “reproductive health care
facility,” “streets,” “sidewalks,” “signs”
Bubble Zone
Laws or
“Mother
May I” Laws
Bubble Laws
 What is a Bubble Law - State statutes and
local ordinances that prohibit speech activities
within so many feet of abortion clinics.
 First arose in Colorado; now exist in
Massachusetts, Oakland, San Francisco, Chicago,
Pittsburg, and other cities.
Bubble Laws
 The general rule applied to all speech
restrictions should be applied to bubble/buffer
zones. Bay Area Peace Navy v. United States,
914 F.2d 1224 (9th Cir. 1990).
 However, bubble zones around
abortion clinics are consistently
upheld against constitutional
challenge, as in Hill v. Colorado,
530 U.S. 703 (2000).
The evolution of the
Floating Bubble Zone
Compare Edwards v. City of Santa Barbara, 150 F.3d 1213
(9th Cir. 1998) and Hill v. Colorado, 530 U.S. 703 (2000).
- Brown v. City of Pittsburgh,
586 F.3d 263, 279 (3rd Cir. 2009).
- McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009)
(cert. denied McCullen v. Coakley, 130 S.Ct. 1881,
2010 U.S. LEXIS 2664 (U.S., Mar. 22, 2010)).
The Oakland Bubble Law ~ The Hoye Cases
The Hoye Criminal Case:
 In 2008, Rev. Hoye was arrested for allegedly
violating the Oakland bubble law
 In 2009, Rev. Hoye was convicted and jailed for
his peaceful actions
On appeal, his conviction was
unanimously overturned for a
variety of prejudicial errors
that occurred during the trial.
People v. Hoye, App. Div. No. 4961 (Super. Ct. No.
541279) (Alameda County, August 25, 2010)
The Hoye Civil Case:
Hoye filed a federal lawsuit challenging the
constitutionality of the Oakland bubble ordinance
 The Court ruled that the law contained
a viewpoint discriminatory provision
 In January 2008, Hoye filed suit again
raising
several new grounds, most notably the fact that
the City exempted clinic escorts from the reach of the law
 The court upheld the law, Hoye appealed to the Ninth
Circuit
The Hoye Civil Case:
Last July, the Ninth Circuit reversed.
The two most significant holdings were:
1) The City’s enforcement policy was
unconstitutionally content-based
2) The escorts’ conduct of blocking Rev. Hoye from
communicating his message from 8 feet away
could be considered a special problem rendering
the Ordinance unconstitutional as applied to
Hoye.