Docket No. 542630/13
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2013
THE STATE OF FROESSEL,
Petitioner,
-againstMARK BAXTER,
Respondent.
____________________________________________
CAMELLIA OCKERT,
Petitioner,
-againstSTATE OF FROESSEL,
Respondent.
ON WRIT OF CERIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE PETITIONERS
Team # 59
QUESTIONS PRESENTED
A. Did the Thirteenth Circuit Court of Appeals properly decide the State of Froessel may not
enforce Froessel Medical Privacy Act § 3.14 because the statute was not content neutral, did not
protect a narrowly tailored government interest and provide alternative forms of communication?
B.
Was the Thirteenth Circuit Court of Appeals correct when it applied the Bartnicki Standard
to Froessel Medical Privacy Act § 3.15 and found it did not impose an unfair limitation of the
freedom of expression of an alleged public concern because the statute protected a significant
government interest?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ………………………………………………………………..
ii
TABLE OF CONTENTS ……………………………………………………………………
iii
TABLE OF AUTHORITIES ……………………………………………………….............
v
OPINIONS BELOW ………………………………………………………………………...
7
STATEMENT OF THE CASE ……………………………………………………..............
8
SUMMARY OF THE CASE ………………………………………………………..............
8
Procedural History ……………………………………………………………………
8
Statement of the Facts ………………………………………………………………..
8
SUMMARY OF THE ARGUMENT ………………………………………………………
11
ARGUMENT …………………………………………………………………………..........
12
I.
FROESSEL MEDICAL PRIVACY ACT § 3.14 IS CONSTITUTIONAL
BECAUSE IT IS A REASONABLE RESTRICTION ON THE TIME,
PLACE, OR MANNER OF PROTECTED SPEECH, THAT MAKES NO
REFERENCE TO THE CONTENT OF THE REGULATED SPEECH, IS
NARROWLY TAILORED TO SERVE A SIGNIFICANT
GOVERNMENTAL INTEREST AND IT LEAVES OPEN
ALTERNATIVE CHANNELS FOR COMMUNICATION OF THE
INFORMATION. ………………………………………………………………..
12
A. FMPA § 3.14 is content neutral because it does not regulate, the
content of speech and there is no evidence of the state agreeing or
disagreeing with the content. .…………………....................................... 13
II.
B. FMPA § 3.14 serves a narrowly tailored government interest and it
does not burden speech more than necessary. …………………………
16
C. The statute provides ample means of alternative means of
communications. …………………………………………………………
18
THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT’S
DECISION THAT FMPA § 3.15 IS CONSITUTIONAL MUST BE
OVERTURNED BECAUSE THE STATE’S INTERESTS ARE NOT
SIGNIFCANT, NOR AN INTEREST OF THE HIGHEST ORDER, THUS,
FAILING TO MEET THE REQUIREMENTS OF BOTH THE
BARTNICKI STANDARD AND THE INTEREST OF THE HIGHEST
ORDER STANDARD. ……………………………………………………..........
18
A. The Thirteenth Circuit should have applied the Daily Mail’s
iii
“Interest of the Highest Order” standard which would have shown
FMPA §3.15 does not meet the standard because Froessel’s interests
were outweighed by Ockert’s Free Speech rights.…………………......
20
B. Assuming, arguendo, the Thirteenth Circuit was correct in applying
the Bartnicki Standard, FMPA § 3.15 should not be upheld because
the state’s interests served by the statute do not justify the restriction
on speech. …………………………………...............................................
24
1. The state’s interest of minimizing the invasion of privacy of the
victims of illegal interception is not served because the
expectation of privacy is considerably less for public figures. …...
24
2. The state’s interest in removing an incentive for parties to
intercept private recordings is not served because there is no
evidence the statute deters such criminality. ……………………...
25
CONCULSION ……………………………………………………………………………… 26
APPENDIX……………………………………………………………………………….......
iv
27
TABLE OF AUTHORITIES
United States Supreme Court Cases
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) …………………………………………
Bartnicki v. Vopper, 532 U.S. 514 (2001) ……………………………………………….
21
passim
Branzburg v. Hayes, 408 U.S. 665 (1972) ……………………………………………………
23
Carlson v. California, 310 U.S. 106 (1940) …………………………………………………..
17
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)…………… 15
Consol. Edison Co. of New York, Inc. v. Pub.Serv. Comm'n of New York,
447 U.S. 530 (1980)…………………………………………………………………...
Clark v. Community for Creative Non—Violence, 468 U.S. 288 (1984) ……………………
12
13
Cox v. State of Louisiana, 379 U.S. 536 (1965) ……………………………………………...
19
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ……………………………………...
20
Florida Star v. B.J.F., 491 U.S. 524 (1989) …………………………………………
19-20, 22
Galella v. Onassis, 487 F.2d 986 (2d Cir.1973) ……………………………………………… 23
Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)....
18-19
Hill v. Colorado, 530 U.S. 703 (2000) …………………………………………………..
passim
Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978) ………………………...
19, 21, 23
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) ………………………….
16-17
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ………………………………………………..
19
New York Times Co. v. United States, 403 U.S. 713 (1971)…………………………………
21
Operation Rescue v. Women's Health Ctr., Inc., 626 So. 2d 664 (Fla. 1993)………………...
16
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) …………………………….. 21
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ………...............
14, 16
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)……………………………………...
14
Schenck v. Pro-Choice Network Of Western New York, 519 U.S. 357 (1997) ……………... 13
Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) ………………………..............
passim
United States v. Albertini, 472 U.S. 675 (1985) ……………………………………………...
12
United States v. Treasury Employees, 513 U.S. 454 (1995) …………………………………
25
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ……………………………………
United States Court of Appeals Cases
v
passim
Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971) ……………………………………...
23
Froessel v. Baxter, 789 F. 3d 1989 (13th Cir. 2013) ……………………………………… 14, 18
Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) ……...………………………………
15
Scheetz v. The Morning Call, Inc., 946 F.2d 208 (3d Cir. 1991) …………………………….
23
United States District Court Cases
Baxter v. Froessel, 251 F. Supp. 3d. 1492 (D. Froes. 2013) ………………........... 17-18, 22, 25
Constitutional Provisions
U.S. Const. amend. I. ………………………………………………….……………...
12, App.
Statutory Provisions
Froessel Medical Privacy Act § 3.14 …………………………………………………….
passim
Froessel Medical Privacy Act § 3.15 …………………………………………………….
passim
Law Journals
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.193, 214
(1890) …………………………………………………………………………………………
vi
20
OPINIONS BELOW
I.
Respondent Mark Baxter filed an action in United States District Court for the District of
Froessel. Baxter sought the court to find Froessel Medical Privacy Act § 3.14 (“FMPA § 3.14”)
unconstitutional as it infringed on his First Amendment right to Free Speech.
The district court held FMPA § 3.14 was a proper restriction on free speech because it met
the test as articulated under Ward v. Rock Against Racism. The district court found the statute
was a proper restriction of free speech because it was content neutral, narrowly tailored to serve
a significant government interest and provided alternative means of communication.
Baxter appealed to the Thirteenth Circuit Court of Appeals. There, the court found the
district court erred in its reasoning. The court found the statute did not meet the standard as
articulated under the Ward as it found it not content neutral because it provided an exception for
employees of reproductive health care facility (“RHCF”), was not narrowly tailored to serve a
government interest because it burdened more speech than necessary and it did not provide
alternative means of communication due to the length of the 12 ft floating bubble.
The State of Froessel petitioned the Supreme Court for writ of certiorari. The Court
granted the petition.
II.
Petitioner Camellia Ockert filed an action in United States District Court for the District
of Froessel seeking declaratory judgment that FMPA § 3.15 was unconstitutional as it applied to
her. The court joined her action with Baxter pursuant to FRCP 42(e) because of considerable
overlap and facts. The court applied the Daily Mail Interest of the Highest Order standard and
the Bartnicki standard. Under both analyses, the court found FMPA § 3.15 was unconstitutional
as it applied to her because the report was an issue of public interest.
7
Froessel appealed to the Thirteenth Circuit Court of Appeals, which reversed the district
court’s holding. The court reasoned the Bartnicki standard should have applied. The statute was
applicable to Ockert because the statute sought to serve a significant state interest. Ockert
petitioned the Supreme Court for writ of certiorari. The Court granted the petition.
STATEMENT OF THE CASE
Procedural History
Respondent Mark Baxter filed this action before the United States District Court for the
District of Froessel, seeking a determination that § 3.14 of the Froessel Medical Privacy Act
(“FMPA”) is both facially unconstitutional and unconstitutional as it applies to him. Petitioner
Camellia Ockert brought this action against the State of Froessel, in the same venue, seeking a
declaratory judgment that § 3.15 of the FMPA is unconstitutional as applied to her. All parties
agreed to have the district court consolidate the two actions due to considerable overlap and
witnesses. The district court found FMPA § 3.14 is constitutional because it is does not violate
the Free Speech Clause of the First Amendment and FMPA § 3.15 is unconstitutional as applied
to Camellia Ockert.
Mark Baxter appealed to the Thirteenth Circuit Court of Appeals. The court reversed,
finding in favor of Baxter, but upholding FMPA § 3.15 as constitutional as applied to Camellia
Ockert.
Respondent State of Froessel and Petitioner Ockert has requested a review of the matter
by the United States Supreme Court.
Statement of the Facts
Family Solutions Clinic (“Family Solutions”) is a reproduction health care facility
(“RHCF”), located in Franzia, Froessel that provides family planning services. Family Solutions
8
is the last facility in the state of Froessel that performs abortions. In July 2012, Reverend Mark
Baxter and Kate O’Neal Baxter, of the local Eastwood Guardians Church, began a campaign
opposing Family Solution’s medical practices. Later that month, the protests evolved where over
50 members of the Eastwood Guardians Church came onto the Family Solutions facility and
began displaying signs on the sidewalks and public parking lots adjacent to the facility that read
“Choose Life” and “Kill the Rapist, Not the Baby”. The members of the church also shouted
epithets such as “Baby Killer” and “Sinner” at people entering and leaving the Family Solutions
building. An hour into the protest, students from Zachary Zeigler High School began a counter
protest which escalated into a confrontation between members of the two parties which left
several students severely injured.
Since the violent protests, one Guardian member is stationed outside of the Family
Solutions facility and distributes pro-life literature to visitors while another sets up displays that
express disapproval of abortion and begs visitors to reconsider getting an abortion. At trial, Dr.
Jaffrey testified that since the protests, there has been a large decline in patient attendance.
Patients reported that they didn’t feel safe at the clinic due to the intimidating presence of the
Guardians and some patients began bringing escorts with them to protect them from altercations
with demonstrators. There have been numerous altercations between escorts and demonstrators,
including incidents where demonstrators have obstructed cars turning into the facility parking lot
causing accidents, injured drivers and temporarily forcing a shutdown of the main street in front
of the facility.
By December 2012, many Franzia citizens urged for legal measures in order to control the
disarray created by the protests. Froessel Legislatures passed FMPA § 3.14 of the statute, that
imposes civil liability on any person who knowingly approaches within a 12-foot “bubble” of
9
another person for the purpose of engaging in oral or visual protest, education, or counseling.
This “floating bubble” is created around any person within a 50-foot radius of any entrance to a
RHCF.
After enactment of the statute, enforcement began. Reverend Baxter was cited for
violating FMPA § 3.14 on the day the statute went into effect. A FPD officer observed Reverend
Baxter arrive on the sidewalk outside Family Solutions. Catherine Cabral, arriving at the facility
30 minutes later, was approached, without her consent, by the reverend when she pulled into the
parking lot. Reverend Baxter was standing within three feet of her. As she was entering the
facility, the reverend shouted a variety of epithets including “murderer” and “prostitute”. He was
cited for violating FMPA § 3.14 and fined $250.
On April 15, 2013, the Family Solutions facility was burglarized where several items
were stolen, including patient records and Dr. Jaffrey’s laptop which contained video files
counseling interviews of patients at the clinic. The Mendik Times published a story about the
incident. The next day, a user named “ANONYMAU5” posted a video on the newspaper’s
website titled: “Feast your eyes on true hypocrisy! Pro-life parents get their sixteen year-old
daughter an abortion.” In the video, Reverend Baxter and Kate O’Neal-Baxter’ daughter,
Katerina Baxter, was seen speaking with Dr. Jaffrey in his office about how the clinic performs
abortions.
After the video went viral and received much attention, Baxter’s congregation was in
shock. Katerina received numerous threats via phone calls and letters. The Baxter’s relocated to
another town after vandals left a burning paper-mache fetus on their front lawn. Reverend Baxter
sought removal of the video from the website and threatened Camellia Ockert, the owner, he
would bring an action against her under FMPA § 3.15.
10
SUMMARY OF THE ARGUMENT
I.
This court must affirm the Thirteenth Circuit’s decision that found Froessel Medical
Privacy Act § 3.14 (“FMPA § 3.14”) constitutional because it is a proper regulation of time,
place and manner of protected speech.
The State of Froessel has shown Reverend Mark Baxter’s violation of FMPA § 3.14 is
not an infringement on his First Amendment right to free speech. Froessel has shown the statute
is content-neutral, it is narrowly to protect a significant government interest and provides
alternative means of communication.
Therefore, the Court must find FMPA § 3.14 constitutional and reverse the lower court’s
ruling.
II.
This Court must also reverse the Thirteenth Circuit’s decision that found FMPA § 3.15
did not violate Camilla Ockert’s constitutional right of free speech. The Thirteenth Circuit erred
in their analysis when the court applied the Bartnicki standard instead of the Daily Mail standard
and found the statute was constitutional because it protected significant state interests. While the
court properly weighed Ockert’s constitutional rights against the state’s interests, they did not
use the more appropriate “Interest of the Highest Order” standard and found the Froessel’s
interests overrode Ockert’s rights.
Furthermore, assuming this Court finds the Bartnicki Standard is an appropriate test to
apply, this statute is still unconstitutional because Froessel’s interests are not significant enough
to meet the standard.
11
POINT I
FROESSEL MEDICAL PRIVACY ACT § 3.14 IS CONSTITUTIONAL BECAUSE IT IS
A REASONABLE RESTRICTION ON THE TIME, PLACE, OR MANNER OF
PROTECTED SPEECH, THAT MAKES NO REFERENCE TO THE CONTENT OF
THE REGULATED SPEECH, IS NARROWLY TAILORED TO SERVE A
SIGNIFICANT GOVERNMENTAL INTEREST AND IT LEAVES OPEN
ALTERNATIVE CHANNELS FOR COMMUNICATION OF THE INFORMATION.
The State of Froessel did not violate the petitioner’s, Reverend Mark Baxter (“Baxter”),
constitutional rights when it enacted § 3.14 of the Froessel Medical Privacy Act (“FMPA §3.14”)
which limited the area where he and his protesters may engage in their anti-abortion activities.
The First Amendment states, “Congress shall make no law... abridging the freedom of speech...”
U.S. CONST. amend. I. This Court has consistently held the government may restrict speech
including time, manner and place of speech as long as the restrictions do not reference the
content of the regulated speech, it is narrowly tailored to serve a significant governmental
interest, and it leaves open alternative channels for the conveyance of information. Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). The government cannot regulate speech just because
it disagrees or agrees with the content and any regulation that does so is not constitutionally
permissible. Consol. Edison Co. of New York, Inc. v. Pub.Serv. Comm'n of New York, 447 U.S.
530 (1980). Therefore, the statute is constitutionally permissible.
This Court has consistently held any statute that seeks to restrict speech must be a
restriction that regulates the time, place, or manner of speech so long as it is reasonable. Consol.
Edison Co, 447 U.S. at 536. Regulation of time, place, or manner of protected speech must be
narrowly tailored to serve the government's content-neutral interests but it must not be too
restrictive or intrusive of doing so. The requirement of narrow tailoring is satisfied “so long as
the ... regulation promotes a substantial government interest that would be achieved less
effectively absent the regulation.” United States v. Albertini, 472 U.S. 675, 689 (1985); see also
12
Clark v. Community for Creative Non—Violence, 468 U.S. 288, 297 (1984). Ward, 491 U.S. at
798-99.
In Ward, the case arose from the New York City’s attempt to regulate the volume of music
played from the Naumberg Acoustic Bandshell at Central Park. The city’s guidelines required
the utilization of a city sound technician and amplification equipment. The concert promoter
sought action alleging the city guidelines was unconstitutional. The Court promulgated a threepronged analysis in finding the guidelines were constitutional. The statute must: not make any
reference to the content of speech, is narrowly tailored to serve a significant governmental
interest and provide alternative means of communication. Id. The Ward test is applicable to
statutes and guidelines that restrict free speech. Schenck v. Pro-Choice Network Of Western
New York, 519 U.S. 357 (1997).
Here, FMPA § 3.14, that places a restrictive bubble that limits the area where protesters
may express their views, satisfies the Ward test.
A.
FMPA §3.14 is content neutral because it does not regulate, or reference, the content
of speech and there is no evidence of the state agreeing or disagreeing with the content.
FMPA §3.14 is content neutral because it does not regulate the content of speech. The
court in Ward stated 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 speech because of disagreement with the message it conveys.” Ward, 491
U.S. at 791.
In order to determine content neutrality of time, place, or manner cases in particular, it
must be determined whether the government regulation of speech is due to the disagreement with
the message it conveys. Community for Creative Non-Violence, 468 U.S. at 295. Government
13
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.
Our case is analogous to a case this Court heard in Hill v. Colorado, 530 U.S. 703 (2000).
There, this Court determined whether a buffer zone enacted by the State of Colorado around
abortion clinics that restricted speech for certain protesters was unconstitutional. The Court
found the statute was constitutional, reasoning, among other factors, it was content-neutral. Hill
v. Colorado, 530 U.S. at 722. The Court reasoned the statute did not seek to restrict the content
of the message, only the geography of where it was conveyed. Id. The Court found no evidence
the government passed the law because it disagreed or agreed with the message and the
legislative history does not illustrate any disagreement. Id.
Our case is analogous to Hill. Here, the statute makes no reference to the content of the
speech. It only regulates where the message is conveyed. There is no evidence in the legislative
history of statute that indicates how the State of Froessel feels, either for or against, the issue of
abortion. The Court of Appeals cited Casey to support their reasoning that the statute is not
content neutral because it is only applicable to a reproductive health care facility (RHCF).
Froessel v. Baxter, 789 F. 3d 1989, 1992 (13th Cir. 2013). However, that court erroneously
applied Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) and by extension,
Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) to this case.
Here, as Hill distinguished Casey and Mosley, the statute’s purpose seeks to protect those
who enter a RHCF from the harassment, the nuisance, the intrusion and the implied threat of
physical touching that can be associated with an unwelcome approach within the bubble zone
from those who disagree with those who enter the facility. The fact the statute's language makes
14
no reference to the content of speech, but only the manner, proves the statute meets the content
neutrality standard.
Furthermore, the Thirteenth Circuit misapplied Hoye v. City of Oakland, 653 F.3d 835
(9th Cir. 2011). There, the Ninth Circuit Court of Appeals determined the constitutionality of an
ordinance that, among other things, created a buffer zone forbidding certain types of speech. The
court found the ordinance was facially constitutional because it was very similar to the statute in
Hill. However, the court found the enforcement policy not content-neutral based on the
legislative history and the disposition of a police captain revealed their efforts should focus on
those who are applying efforts to persuade women against receiving an abortion. Hoye v. City of
Oakland, 653 F.3d at 849-850; see also, Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) (striking down a city ordinance because the ordinance sought to
limit the practice of the church and limited the sacrifice of certain animals commonly sacrificed
by the church, but not other animals.)
Here, our case is distinguishable. There is no indication in the legislative history of the
statute that it was targeted towards anti-abortion protestors. FMPA § 3.14 makes no reference
towards any content. The lower court erred in ignoring Hill because like Hill, the restriction
seeks to protect those who enter a healthcare facility from the harassment, the nuisance, the
persistent importuning, the following, the dogging, and the implied threat of physical touching
that can accompany an unwelcome approach within eight feet of a patient by a person wishing to
argue vociferously face-to-face and perhaps thrust an undesired handbill upon her. The statute
does not distinguish among speech instances that are similarly likely to raise the legitimate
concerns to which it responds.
15
Casey doesn’t apply here as well because the statute does not prohibit a particular
viewpoint or any subject matter. As the Court eloquently reasoned in Hill, distinguishing Casey,
it establishes a minor place restriction on a broad category of communications with unwilling
listeners. Hill v Colorado, 530 U.S. at 722-723. This statute, similar to the statute in Hill, applies
to many possible categories of solicitors or speakers, i.e. “used car salesmen, animal rights
activists, fundraisers, environmentalists, and missionaries. Each can attempt to educate unwilling
listeners on any subject, but without consent may not approach within eight feet to do so.” Id.
530 U.S. at 723.
Because the statute is content-neutral, it satisfies the content-neutrality requirement for a
statute restricting speech is constitutional.
B. FMPA § 3.14 serves a narrowly tailored government interest and it does not burden
speech more than necessary.
FMPA § 3.14 is narrowly tailored to serve a significant government interest of the
medical privacy of citizens and it does not burden more speech than necessary. A statute is
narrowly tailored when it serves a significant government interest. Ward, 491 U.S. at 798. A
state has a strong interest in “protecting a woman's freedom to seek lawful medical or counseling
services in connection with her pregnancy.” See Roe v. Wade, 410 U.S. 113 (1973).
Furthermore, a state has a strong interest in ensuring the public safety and order, in promoting
the free flow of traffic on public streets and sidewalks, and in protecting the property rights of all
its citizens. See Operation Rescue v. Women's Health Ctr., Inc., 626 So. 2d 664, 671 (Fla. 1993)
(aff'd in part, rev'd in part sub nom. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994)).
In Madsen, the court observed that while targeted picketing of the home threatens the
psychological well-being of the “captive” resident, targeted picketing of a hospital or clinic
threatens not only the psychological, but also the physical, well-being of the patient held
16
“captive” by medical circumstance. Madsen, 512 U.S. at 767-68. The Court reasoned the
ordinance at issue met two of the three elements of the Ward test. They invalidated a portion of
the thirty-six foot buffer zone which extended onto the private property on the back and side of
the clinic. Id. at 771. The Court reasoned there was no evidence indicating the protesters’
activities on private property had impeded access to the clinic or blocked vehicle traffic. Id.
“Absent evidence that petitioners standing on the private property have obstructed access to the
clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic’s operation,
this portion of the buffer zone fails to serve the significant interest relied upon by the Florida
Supreme Court.” Id. Furthermore, the ordinance precluded not only entry within the buffer zone,
but the use of amplified sound. Id. at 767-768.
Our case is distinguishable from Madsen. Here, there have been numerous confrontations
at the facility where people have been injured. Baxter v. Froessel, 251 F. Supp. 3d 1492, 14921494 (D. Froes. 2013). There is evidence the buffer zone is needed due to evidence of the
protesters impeding traffic. Baxter v. Froessel, 251 F. Supp. 3d at 1493. This statute is a measure
to protect our citizens who exercise the constitutional right to free speech from escalating into a
situation that has, previously, resulted in injuries. The statute serves to protect the safety of our
citizens.
Additionally, The State of Foressel has a significant interest in the protecting the privacy
of women seeking abortions as well as ensuring the safety of its citizens. This statute was
designed to serve our interest “to take adequate steps to preserve the peace and protect the
privacy, the lives, and the property of [their] residents.” Carlson v. California, 310 U.S. 106
(1940). Indeed, women are entitled to privacy seeking abortions. Roe v. Wade, 410 U.S. at 153154. It is also evidenced that such activities bring strong feelings that can escalate to physical
17
confrontation. Baxter v. Froessel, 251 F. Supp. 3d at 1493. Because the statute aims to protect
women from possible intimidation and confrontation this hot button issue shoulders, this statute
serves a significant governmental interest and does not burden speech more than necessary.
C. The statute provides ample means of alternative means of communications.
We may quickly dispense with the final element of the test. Froessel has proven FMPA §
3.14 Provides ample means of alternative communication. The final requirement requiring the
statute leaves open ample alternative channels of communication, is easily met. Ward, 491 U.S.
at 802. Here, our case is analogous to Hill. The statute permits expressive activity at the site.
Protesters are permitted to protest, counsel, shout, implore, dissuade, persuade, educate, inform,
and distribute literature regarding abortion. They just cannot knowingly approach within the
buffer zone of a healthcare facility without that individual’s consent. An individual may get their
message across by remaining stationary outside the buffer zone and distributing flyers and
pamphlets. They may display messages outside the zone, advertise on billboards, if one such
exists in the area, advertise in various media in the town of Franzia if available.
Therefore, the statute provides ample means of alternative communication.
POINT II
II.
THE COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT’S DECISION
THAT FMPA § 3.15 IS CONSITUTIONAL MUST BE OVERTURNED BECAUSE THE
STATE’S INTERESTS ARE NOT SIGNIFCANT, NOR AN INTEREST OF THE
HIGHEST ORDER, THUS, FAILING TO MEET THE REQUIREMENTS OF BOTH
THE BARTNICKI STANDARD AND THE INTEREST OF THE HIGHEST ORDER
STANDARD.
Froessel Medical Privacy Act § 3.15 (“FMPA § 3.15”) must not be upheld. The statute
does not protect the state’s two interests of minimizing the invasion of privacy of the victims of
illegal interception and removing an incentive for parties to intercept private recordings. Froessel
v. Baxter, 789 F. 3d at 1998. The First Amendment does not guarantee the right to communicate
one’s views in any manner and at all times or places desired. Heffron v. International Society for
18
Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981); see also Cox v. State of Louisiana, 379
U.S. 536, 554 (1965). This Court has previously held it is a traditional exercise of the State’s
police power “to protect the health and safety of their citizens.” Medtronic, Inc. v. Lohr, 518
U.S. 470, 475 (1996). In fact, “the sensitivity and significance of the interests presented in
clashes between [the] First Amendment and privacy rights counsel relying on limited principles
that sweep no more broadly than the appropriate context of the instant case.” Bartnicki v.
Vopper, 532 U.S. 514 (2001) (citing Florida Star v. B.J.F., 491 U.S. 524, 532-33 (1989).
This Court has established two tests to determine whether the state’s punitive action in
restricting speech is necessary to further the state’s interest asserted. The first test is Daily Mail’s
Interest of the Highest Order standard. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102
(1979). State action that punishes the publication of truthful information seldom can satisfy
constitutional standards.” Smith v. Daily Mail, 443 U.S. at 102. This Court has repeatedly held
that “if a newspaper lawfully obtains truthful information about a matter of public significance
then state officials may not constitutionally punish publication of the information, absent a need
... of the highest order.” Id. at 103; see also Florida Star v. B.J.F., 491 U.S. at 524; Landmark
Communications, Inc. v. Virginia, 435 U.S. 829 (1978). The second test, Bartnicki standard,
involves balancing “whether, given the facts of these cases, the interests served by [the statute]
can justify its restrictions on speech.” Bartnicki v. Vopper, 532 U.S. 514, 529, (2001).
The state’s interests do not satisfy the Interest of the Highest Order standard. Therefore,
this Court should reverse the lower court’s ruling that FMPA § 3.15 is constitutional and the
district court was correct in applying the Interest of the Highest Order Standard. Assuming,
arguendo, this Court applies Bartnicki standard, the statute would still be unconstitutional
19
because the interests of the Ockert’s free speech rights outweighs the alleged state’s interests in
suppressing publication about Katerina Baxter’s visit to a RHCF.
A. The Thirteenth Circuit should have applied the Daily Mail’s “Interest of the Highest
Order” standard which would have shown FMPA §3.15 does not meet the standard
because Froessel’s interests were outweighed by Ockert’s Free Speech rights.
If this Court were to apply the Daily Mail standard, FMPA §3.15 would be found
unconstitutional because the Ockert’s interests are of the highest order. It is true a newspaper
may publish truthful information, Cox Broadcasting, Inc. v. Cohn, 420 U.S. 469 (1975)
(reasoning the right to privacy faded when the names of the individual is made in the public
record.). Indeed, it has long been held the “right of privacy does not prohibit any publication of
matter which is of public or general interest.” Id. (quoting Samuel D. Warren & Louis D.
Brandeis, The Right to Privacy, 4 Harv. L. Rev.193, 214 (1890)). However, under the Daily Mail
standard, “if a newspaper lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish publication of the information,
absent a need to further a state interest of the highest order.” Smith v. Daily Mail, 443 U.S. at
103. Protecting a newspaper’s First Amendment right to publish truthful information is an
interest of the highest order, satisfying the Daily Mail standard.
In Smith v. Daily Mail, a West Virginia statute prohibited public disclosure of the names
of juvenile defenders without the permission of a judge. The state argued the statute served a
state interest to protect the anonymity of the juvenile offender. Id. at 104. The Court reasoned the
State could only enforce the statute to protect a state interest of the highest order. Id. at 105.
However, because the information was already in the public record, thus, undercutting the
interest the state argued, their interests were insufficient and not properly served by the statute.
Id. See also, Florida Star v. B.J.F.,491 U.S. at 524 (finding the state failed to prove its interests
were served by the statute that prohibited the publication of sexual offense victims because a
20
police error made such information on the public record)1; Landmark Communications, Inc. v.
Virginia, 435 U.S. at 829 (finding a statute that forbade the disclosure of proceedings before the
Virginia Judicial Inquiry and Review Commission did not serve the state’s interests of protecting
the reputation of judges was not an interest of the highest order, Id. at 841).
This Court has recognized any restriction of speech “bears a heavy presumption against
its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Thus, the
government has a heavy burden to prove the restriction is valid. Organization for a Better Austin
v. Keefe, 402 U.S. 415, 419 (1971). Here, the government has not proved their burden. The
information at issue dealt with a medical consultation at an abortion clinic that was recorded for
Dr. Jaffery’s use. While we are sympathetic to Ms. Baxter’s health, the Froessel has not
demonstrated that their interests justify the restriction of Ockert’s First Amendment right to
publish truthful information. Katerina Baxter is a daughter of a prominent anti-abortion activist.
There is great public interest in her father.
Affirming the Thirteenth Circuit’s decision would render any newsworthy item any
media organization comes across from anonymous sources impermissible to be published
because the government supposedly has an interest in the manner because it was initially stolen.
Anonymous sources are the backbone of journalism. Time after time, major and minor stories
have revealed important stories of the public interest thanks, in part, to the work and assistance
of anonymous sources. See New York Times Co. v. United States, 403 U.S. 713 (1971)(finding
the publication of a classified study, that revealed sensitive information about the Vietnam War
1
However, the Court conceded, “[t]he Daily Mail principle does not settle the issue of whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the
unlawful acquisition, but the ensuing publication as well.” Id. note 8.
21
and was acquired unlawfully, was of significant public interest, dwarfing the alleged government
interest)2.
Restricting Ockert’s publications of this manner would However, his activities have
certainly generated animus in people who endorse an opposing viewpoints. It is plausible his
actions and his actions of his immediate family would be under scrutiny. What if instead of the
publication of the session video, someone saw and recorded Katerina Baxter in the waiting room
at RHCF? If FMPA § 3.15 were to apply, the media organization that published the information
would be liable for publishing that truthful information. Froessel would have us believe that
anyone that comes upon a stolen item is as guilty as if they were the actual wrongdoer.
Mark and Kate Baxter are public figures. They should have known that visiting a RHCF
that has been the center of numerous controversies, presented a risk that their visitation would
have been publicized in some manner in some way. Adding to the risk is their visit was recorded
by Dr. Jaffrey. While we are in no way impugning on his character, there are certain risks for a
recordation of a very personal and sensitive session. Anything could have happen that resulted in
the publication of the video, i.e. mistakenly emailing the video to a member of the public,
misplacing the video somewhere, etc.
Anti-abortion protestors are public figures and as such, there is lowered expectation of
privacy when such figures go out in public. The Baxters were certainly well-known in their
community and carried great influence as evidenced by their commencement of protests by their
congregation. Baxter v. Froessel, 251 F. Supp. 3d at 1492. Their actions, indirectly, set in motion
events that eventually caused the State of Froessel to enact legislation to regulate protests outside
RHCFs. This demonstrates the Baxters wield considerable influence if they can cause their
community and Froessel to react. It stands to reason a video of their daughter and their mother,
2
That court did not focus their inquiry on the unlawfully nature of how the document was acquired.
22
seen in a video seeking information regarding abortions, could certainly rise to the level of public
interest. Evidence of an influential public figure not practicing what they are preaching should
qualify as interest of the highest order.
The district court erroneously applied Daily Mail’s facts to this case because Daily Mail
dealt with information that was already in the public record. Daily Mail and its analogous cases
in Florida Star and Landmark Communications cited by the lower court either dealt with
information that was publicly available or the restrictive speech statute was insufficient to meet
the burden of protecting a state’s interest of the highest order, respectively. Froessel’s interests
are insufficient to require a restriction of speech.
Failing to reverse the Thirteenth Circuit’s holding will have deleterious implications to
citizens across this country. Citizens demand a free press. It has been recognized journalists are
entitled to certain First Amendment protections when they seek information. Branzburg v.
Hayes, 408 U.S. 665, 681 (1972). The respondent would have us believe that reversing the
Thirteenth Circuit’s decision would lead to journalists to engaging in illegal and questionable
methods of newsgathering. Their concern is greatly misplaced. There is no evidence this video
was connected to the burglary. There is no indication of the source of the video. In fact, it is
plausible the video is was in possession of the poster before the burglary occurred.
Furthermore, a title of a journalist does not entitle them to engage in illegal methods of
newsgathering. Id. at 683. Courts are familiar in prohibiting the press from publishing certain
information obtained by subterfuge, Scheetz v. The Morning Call, Inc., 946 F.2d 208 (3d Cir.
1991)3 See also, Galella v. Onassis, 487 F.2d 986 (2d Cir.1973)(placing a strict injunction on a
photographer who, in the course of attempting to secure photographs of Jacqueline Kennedy
3
That court noted, “the Ninth Circuit Court of Appeals has allowed the fact of publication to provide an element of
damages where journalists gained access to the plaintiff's home by subterfuge and took unauthorized photographs
and recordings. Citing Dietemann v. Time, Inc., 449 F.2d 245, 249–50 (9th Cir.1971) (Hufstedler, J.).
23
Onassis and her children, harassed, abused, and endangered them). Time after the time, this
Court has demonstrated the rights of the press to gather news are circumscribed by the rights
possessed and owed to others. We are urging the Court to find such a concern does not exist
here. It is for the aforementioned reasons the holding of the Thirteenth Court of Appeals must be
reversed.
B. Assuming, arguendo, the Thirteenth Circuit was correct in applying the Bartnicki
Standard, FMPA § 3.15 should not be upheld because the state’s interests served by the
statute do not justify the restriction on speech.
The holding of The Thirteenth Circuit Court of Appeals must be reversed because they
improperly concluded FMPA § 3.15 satisfy the Bartnicki standard. The state’s interests in (1)
minimizing the invasion of privacy of the victims of illegal interception and (2) removing an
incentive for parties to intercept private recordings do not outweigh Ockert’s right . Froessel, 789
F. 3d at 1998. This court has held, under the Bartnicki Standard, it must be decided if, based on
the facts of the case, “the interests served by [the statute] can justify its restrictions on speech.”
Bartnicki, 532 U.S. at 529.
In Bartnicki, the Court was faced with an issue of whether a statute may punish not only
the wrongdoer, but the media organization as well for disclosing information that was unlawfully
obtained. There, a radio commentator aired secret audio conversations between officials
representing public school teachers’ union and the school board. After a settlement in the
collective-bargaining negotiations was reached, the radio commentator aired the audio that
contained embarrassing comments both officials remarked about the negotiations. Id. at 519.
1. The state’s interest of minimizing the invasion of privacy of the victims of
illegal interception is not served because the expectation of privacy is
considerably less for public figures.
Regarding the first interest, the case is analogous to Bartnicki. Here, the State fails in that
standard. As we noted above, in our discussion of the Interest of the Highest Order Standard,
24
Katerina Baxter is the daughter of very prominent public figures. Katerina Baxter is not a private
citizen. It is very reasonable to expect Katerina Baxter to come under scrutiny for her actions.
Furthermore, as discussed above, the Baxters should have taken extra steps to ensure privacy of
the visitation considering their status in the community and this sensitive nature.
Froessel argues that failure to uphold the Court of Appeals’ ruling will have deleterious
effect by encouraging people to engage in illegal activities to tape private conversations for
public distribution. While halting and preventing illegal wiretaps is an important state interests,
their fears do not apply here. The visitation was not illegally taped; it was recorded, per Dr.
Jaffery’s routine whenever he conducts a consult. Baxter v. Froessel, 251 F. Supp. 3d at 1495.
Privacy interests must be weighed against interests of a public concern. Bartnicki v. Vopper, 532
U.S. at 532-533. As we have discussed earlier, the video of a daughter of a prominent antiabortion activist that has influenced policy, visiting a RHCF is a concern of public interest.
2. The state’s interest in removing an incentive for parties to intercept private
recordings falls is not served because there is no evidence the statute deters
such criminality.
Here, the case is analogous to Bartnicki. The identity of individual who recorded the
video is unknown. Furthermore, there is no evidence that such regulation is sufficient in
deterring illegal activity. There is no empirical evidence to support the assumption that the
restriction against disclosures reduces the number of illegal interceptions. Indeed, the fact that
the identity of the interceptor of the video is unknown makes the prosecution of the media
organization unfair and does not promote deterrence. “The justification for any such novel
burden on expression must be ‘far stronger than mere speculation about serious harms.’”
Bartnicki v. Vopper, 532 U.S. 514, 532 (2001) (citing United States v. Treasury Employees, 513
U.S. 454, 475, (1995).
25
As the court in Bartnicki noted, “it would be quite remarkable to hold that speech by a
law-abiding possessor of information can be suppressed in order to deter conduct by a non-lawabiding third party.” Bartnicki v. Vopper, 532 U.S. 514, 529-30 (2001). While in some rare
instances this Court has held liable a third-party possessor of stolen property liable, it has not
applied to speech, see Bartnicki, note 13.
For the aforementioned reasons, the Thirteenth Circuit’s ruling, should be reversed.
CONCLUSION
Therefore, this Court must affirm the Thirteenth Circuit Court of Appeals’ decision in
finding FMPA § 3.14 is constitutional because it is a proper regulation of time, manner and place
of protected speech.
Furthermore, because FMPA § 3.15 is unconstitutional because the Froessel’s interests
are not protected by the statute, failing to satisfy both the Bartnicki and the Daily Mail standard,
this Court must reverse the Thirteenth Circuit Court of Appeals decision.
Respectfully submitted,
By: Team #59
Attorneys for the Petitioner
Submitted: August 11, 2013
Attorney for the Petitioner
New York Law School
47 Worth Street
New York, NY 10013
26
APPENDIX
Constitutional and Statutory Provisions
U.S. Const. amend. I.
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.
Froessel Medical Privacy Act Section 3.14
(A)
No person shall knowingly approach within 12 feet of another person within 50 feet of
any entrance door to a reproductive health care facility, without such other person’s
consent, for the purpose of engaging in oral or visual protest, education, or counseling.
Subsection (A) shall not apply to:
i.
Authorized agents or employees of a reproductive health care facility while they
are assisting another person in entering or exiting such facility.
ii.
Any person who, while remaining stationary, was engaged in any of the above
mentioned protest activities prior to being approached by another person.
(B)
No person shall knowingly obstruct, hinder, impede, or block access to any entrance into
a reproductive health care facility or the public streets that provide access thereto.
(C)
Any person who violates subsections (A) or (B) of this statute shall be subject to civil
liability.
Froessel Medical Privacy Act Section 3.15
(A)
No person shall intentionally intercept, solicit, or otherwise obtain any electronic, audio,
or video recording of a communication involving another person without the consent of
that person.
(B)
No person shall intentionally disclose to any other person the contents of any recorded
communication, knowing or having reason to know that such recording was obtained
through the interception of any communication in violation of this subsection.
(C)
Any person who violates either subsection (A) or (B) of this provision shall be subject to
civil liability.
27