Free-Speech-Part-21

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SECTION II:
SPECIAL SITUATIONS
AND PROBLEMS
Residential Picketing
 Public Forum Test Applies
 Government has legitimate
interest in protecting a residence
from unwanted intrusion.
 Main issue: whether the
ordinance is narrowly tailored.
Frisby v. Schultz, 487 U.S. 474 (1988): involved a
ban on residential picketing “before or about any
individual’s residence.”
Residential Picketing
 Lower Courts vary in the distances they deem
“narrowly tailored” involved in “no picketing”
ordinances
 California cases tend to
maximize restrictions on
residential picketing.
 Klein v. San Diego County,
463 F.3d 1029, 1036 (9th Cir. 2006)
 City of San Jose v. Superior Court,
32 Cal. App. 4th 330 (1995)
Residential Picketing
 Other courts have been more accepting of
the right to residential picketing
 Thorburn v. Austin, 231 F.3d 1114 (8th Cir.2000)
 Kirkeby v. Furness, 92 F.3d 655 (8th Cir.1996)
 An attempt to ban all residential picketing
except labor picketing violates the equal
protection clause as well as the
First Amendment’s content
neutrality requirement
Carey v. Brown, 447 U.S. 455 (1980)
Residential Picketing
 Note: this discussion only touches on
residential picketing laws.
 Injunctions restricting residential
picketing also pose a threat.
Free Speech Rights Under the
California Constitution
California Constitution
California Constitution provides protections for
speakers in some ways broader than U.S. Constitution.
Under the California Constitution, the “public forum”
analysis is whether the communicative activity is
basically incompatible with the normal activity of a
particular place at a particular time.
 Time, Place and Manner” restrictions are tested the
same under California law as under Federal law.
California Constitution
California Caselaw:
- Pruneyard Shopping
Ctr. v. Robins, 447 U.S. 74
(1980).
- Planned Parenthood
v. Wilson, 234 Cal. App. 3d
1662 (1991).
- Snatchko v. Westfield LLC, 2010 Cal. App. LEXIS
1415 (August 2010).
Freedom of Access
to Clinic Entrances Act(s)
Federal Freedom of Access to
Clinic Entrances Act (FACE),
18 USC § 248
FACE Bans Intentional injury, intimidation, interference, or
 attempts to injure by force, threat of force, or
physical obstruction
 persons who are, or have been “reproductive health
service” providers,
 or persons who wish to obtain “reproductive health
services”
FACE – Civil Remedies
 Any person aggrieved can sue for relief available
including- injunctive relief, compensatory and punitive
damages (or statutory damages of $5,000 per violation),
as well as costs and fees.
 Authorizes civil suit by U.S. Attorney
General seeking relief as indicated above, as
well as a civil penalty (at discretion of the
court) of $10,000 - $15,000*, and $15,000$25,000* for subsequent violations.
 Specifically states that FACE is not to be construed as
to impinge expressive conduct, including picketing.
FACE – Criminal Penalties
 First conviction:
• Jail – 6 months - 1 year jail and/or
• Fine – $10,000 - $15,000
 Second or subsequent conviction:
• Jail – 18 months - 3 years jail and/or
• Fine – $25,000
 If bodily injury results, not more than 10 yrs jail;
 If death results, any term of years or life in jail.
California Freedom of Access
to Clinic Entrances Act (FACE)
California Penal Code § 423.2
CA FACE Bans 1) Intentional injury, intimidation or interference by
force, threat of force, physical obstruction, or
nonviolent physical obstruction to any person*
 Because the person is a reproductive health
services client, provider, or assistant
2) Attempts to intimidate a person from becoming or
remaining a reproductive health services client,
provider, or assistant
3) Intentional property damage*
CA FACE – Penalties & Remedies
 First Conviction:
• Jail – 6 months - 1 year and/or
• Fine – $2,000 - $25,000
 Second or Subsequent Convictions:
• Jail – 6 months - 1 year and/or
• Fine – $5,000 - $50,000
Civil remedies are also available and may be brought
by the Attorney General or a city attorney. The statutory
damages available under a civil action range from $1,000
to $25,000.
Information Collection and
Statistic Publication
 CA attorney general must collect information on
incidents of anti-reproductive rights crimes and annually
publish the findings on its website.
Between 2003-2009, a grand total of 65 incidents of
anti-reproductive rights offenses were reported.
Note this includes all crimes reported by or at abortion
clinics, of whatever nature, and whether or not the
suspects were ever identified, charged, or convicted.
Injunctions
Injunctions
 Plaintiff (abortion provider) brings lawsuit
against Defendant (pro-life demonstrator)
 Clinic alleges one or more tort claims
 Clinic seeks an injunction against pro-life
demonstrator
 In the context of pro-life activity, injunctions are
often used to restrict constitutionally protected
speech, not to prevent any unlawful conduct
Injunctions
Madsen v. Women's Health Ctr., 512 U.S. 753 (1994)
enunciated the test for injunctive restrictions on
speech: each restriction must be –
1)evaluated individually and
2)may burden no more speech than necessary to
serve the asserted governmental interests.
 What does this test mean?
 What governmental interest is involved?
Litigation Tips
Think Fast: Abortion providers usually initiate these proceedings
with minimal notice to the pro-lifers, frequently by filing an ex parte
motion for a temporary restraining order.
No TRO without Notice: The Supreme Court has explicitly
forbidden the issuance of TRO’s restricting speech without notice
to the enjoined parties (Carroll v. President & Comm'Rs of Princess
Anne, 393 U.S. 175 (1968)), and most state court rules discourage
TRO’s without notice to opposing parties.
One Bite at the Apple: The issuance or denial of preliminary
injunctive relief in abortion protest cases often is determinative of
the outcome of the entire lawsuit.
Litigation Tips
When opposing an application for a temporary
restraining order or preliminary injunction –
1) Start with the traditional grounds to attack the
requested relief as a whole:
 no irreparable injury
 injunctions are supposed to preserve the status quo; the
requested injunction will alter the status quo
 no continuing threat or threat of future harm (where clinic
brings suit based on one-time or infrequent occurrence)
2) Use the Madsen test and analyze each provision of the
injunction, focusing on the lack of proof that the
restriction is necessary to serve the asserted interests.
Litigation Tips
Is a special motion to strike pursuant to California
Code of Civil Procedure §425.16 appropriate?
But be mindful of the threat of attorney fees being
awarded against the defendant as well.
You might consider offering to stipulate upfront to an
injunction prohibiting any unlawful conduct included in
the clinic’s prayer for relief (e.g., trespass, assault)*
Injunctions
Injunctions
• An injunction cannot be applied against nonparties by insertion of “actual notice” language.
Planned Parenthood Golden Gate v. Garibaldi,
107 Cal. App. 4th 345 (2003).
• Some actual relationship with an
enjoined party is required to bring a
nonparty actor within the
injunction’s scope. People v. Conrad,
55 Cal. App. 4th 896 (1997).
Injunctions
• Fed. Rules Civ. Proc. 65 (2) Persons Bound: The
order [of injunction] binds only the following who
receive actual notice of it by personal service or
otherwise:
(A) the parties;
(B) the parties' officers, agents, servants,
employees, and attorneys; and
(C) other persons who are in active
concert or participation with anyone
described in Rule 65(d)(2)(A) or (B).
Potential Constitutional Claims
other than
Free Speech Claims
Equal Protection
If the regulation is not content-neutral, chances are there
may be an argument based on equal protection.
For example, Chicago ordinance that prohibited all picketing
near schools except peaceful labor picketing violated the
equal protection clause because it made a distinction based
on content between labor picketing and other picketing.
Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972)
But note equal protection issues generally get subsumed
under the First Amendment in speech cases.
Freedom of Association
If an individual has the right to engage in expressive
activity, then a group of individuals may exercise their
freedom of association to engage in that same activity.
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460461 (1958)
The Constitution protects the right to associate with
others in pursuit of a wide variety of political, social,
economic, educational, religious and cultural ends.
Due Process – Vagueness
Vagueness may invalidate a criminal law in two ways.
 First, it may fail to provide notice that enables ordinary
people to understand what conduct it prohibits;
 Second, it may authorize and even encourage arbitrary
and discriminatory enforcement.
 Chicago ordinance prohibited criminal
street gang from congregating and
loitering in public places.
City of Chicago v. Morales, 527 U.S. 41 (1999)
 It violated due process because no
standard of conduct was specified and no
guidelines were provided to law
enforcement.
Advising the Client
What can Pro-Life Advocates do
to Protect Themselves?
Good tips for the Pro-Life Activist Client
Bring a friend with you
Take pictures or video, carry a recording device
Document the activities of the escorts and
clinic workers
 Keep a journal or log with dates, names, details
 If you have questions about what conduct is
permissible call your attorney or call or email
LLDF 707-224-6675, [email protected]
Specific advice if dealing with a
bubble zone law• Variety of types of bubble zone laws—whether it
includes buffer zones, floating buffer zones, how far it
extends, etc.
• No uniform approach to enforcement. Some police
agencies only enforce if a mother complains, others if
clinic workers or escorts complain.
• Err on the side of caution, advise clients to stay
adequate distance away, remain stationary, but to
know their rights and not be afraid to stand up to
unlawful police orders and requests.
Conflict and Law Enforcement
Speak reasonably with the police. Be polite, courteous
and respectful.
Try to accommodate reasonable requests
 Speak to a Supervisor or Watch Commander
Call attorney if situation is not quickly and favorably
resolved.
Advise Your Clients to
Monitor Developing Laws
Clients could –




keep an eye on City council agenda items
watch the Local newspaper articles, letters to the editor
get on anti-life websites, email lists
check State Attorney General and Legislature websites
If an instance of speech-restricting legislation arises,
Call LLDF for assistance
 To fight such laws, Attend City council meetings, speak
out, seek expert help
 Always document what occurs
Resources
 Be Prepared! If you know where the client is planning
to demonstrate, do the research first. This is especially
helpful if it is a large demonstration or in a new area.
Call LLDF in advance and we can assist with research
and preparation.
If clients are being told that they must comply with a
certain code section (i.e. permit, signs, etc.), call LLDF
and we will research the matter and communicate
with government personnel to resolve the issue.
LLDF Resources
research has already been done for many
of these topics
 research assistance is available
 model pleadings
 experienced lawyers to consult
 funding on a case-by-case basis
Never forget what you’re fighting for…
Questions, Comments, Concerns?
Contact info - 707-224-6675, [email protected]
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