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Your Constitutional Rights

Free speechFreedom to peaceably assembleFreedom to exercise one’s religionFreedom of press (including leafletting)

Free Speech Restrictions

Types of Fora Non-Public Forum Limited Public Forum Designated Public Forum Public Forum

Location of the ClinicCriminal LawsSign ordinancesPermit RequirementsObstruction LawsBubble Zones

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

Example of Designated Public Forum

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).

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.

Location of the Clinic

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.

Criminal Laws

Federal Freedom of Access to Clinic Entrances Act(s) (FACE)-11 United States Code §248

California FACE-California Penal Code §423.2Trespass-California Penal Code §602Obstructing passage to health care facility-

California Penal Code §602.11 (a)Interference with business activity-CPC

§602.1Vandalism-California Penal Code §594

Federal Freedom of Access to Clinic Entrances Act (FACE)

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-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)

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 1) Attempts to intimidate a person from becoming or

remaining a reproductive health services client, provider, or assistant

2) 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.

Other California Criminal 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

Vandalism – California Penal Code § 594

Sign Ordinances

laws limiting size, type, and number of signs

mostly apply to commercial or election signs

cannot discriminate on basis of content

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 devicesBut: Permit NOT required for single

person to exercise free speech rights

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.

Bubble Zone 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 Zone 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 consistentlyupheld against constitutional challenge, as in Hill v. Colorado,530 U.S. 703 (2000).

How to find state & local laws

Google search for “city” municipal code or “state” criminal code

www.law.cornell.edu/statesPublic peace, miscellaneous, public welfare,

crimes against propertyAccess to clinicReproductive health care facility

Monitoring bubble laws

Where to watchCity council agenda

itemsLocal newspaper

articles, Letters to the editor

Pro-choice websites, email lists

State Attorney General and Legislature websites

What to doCall Pro-life law

groupAttend City council

meetingsDocument, document,

document

Tips to protect & defend yourself

Bring a friend with youTake pictures, video, carry a recording

device*Document the activities of the escorts and

clinic workersKeep a journal or log with dates, names, and

detailsIf you have questions about what conduct is

permissible….call an attorney

Conversing with Law Enforcement

Be polite and courteousTry to accommodate reasonable requestsCall an attorney if the conflict does not get

resolved or you feel threatened/intimidated or harassed

Never forget what you’re fighting for…

Questions, Comments, Concerns?

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