On March 19, 2013, San Francisco Supervisor Dave Campos http://www.lldf.org/wp-content/uploads/SF_Measure_Limiting_Sidewalk_Protestors.pdf”>proposed an ordinance to—yet again—significantly limit free speech activities within the City. The measure is specifically aimed at restricting sidewalk counseling near abortion clinics.

San Francisco currently limits free speech activities in front of abortion clinics through a “bubble zone” ordinance: within 100 feet of a health care facility, an individual may not approach within eight feet of a person entering a clinic for purposes of “harassment” (which include passing a leaflet or handbill, displaying a sign, or engaging in oral protest, education or counseling), unless the person consents.

The new ordinance would create a permanent 25-foot buffer zone around an abortion clinic’s “entrance, exit or driveway” – basically making public property in these areas “speech free zones.” The ordinance would be enforced through criminal sanctions, including jail time, as well as a private right of action.

While there are a myriad of reasons to oppose this type of ordinance, three stand out:

1. The ordinance is limited to reproductive health care facilities, i.e., abortion clinics. A restriction on speech that only applies where speech of a particular nature is going to occur, precisely because speech of that nature is occurring, is viewpoint-based. The claim that this measure is “viewpoint neutral” because it prohibits all speech activities within the specified area is a handy legal fiction—one that courts have been only too ready to accept (see McCullen v. Coakley). The fact is, it is pro-life speech, and only pro-life speech, that will be repressed by this measure. Muzzling pro-life speech is precisely what the Supervisors intend.

2. In the ordinance’s “findings,” the Supervisors claim that the current eight-foot bubble zone has not been effective. This means that pro-life advocates are still able to talk to and hand leaflets to women directly. They are, in effect, able to do exactly what the Supreme Court has upheld as an “an ample alternative channel of communication” when upholding Colorado’s “bubble zone” law. (see Hill v. Colorado). Yet to San Francisco’s pro-abortion Supervisors, even this “alternative” communication is something to complain about, as if it is somehow unfair that pro-life advocates are free to stand near entrances to abortion clinics peacefully handing out leaflets to those who approach them.

3. Perhaps in an attempt to mitigate the blatantly anti-free speech nature of this ordinance, the findings pay lip-service to the notion of free speech  by talking about the rights of those who would gather and “raise their voices” on matters of public concern. This “finding” highlights an apparent goal of this type of legislation: abortion advocates want to define pro-life advocates’ message for them, and then limit them to that message. This ordinance assumes  pro-life advocates just want to scream “murderer” and “baby-killer” at women; they can do that just as easily from 25 feet away. Having told people for decades that pro-life advocates just want to shout at women, they then create the circumstances where that is all they can do.

Supervisor Campos has his eye on an assembly seat opening in 2014, so it’s easy to see why he is anxious to curry favor with abortion advocates. Unfortunately other members of the San Francisco Board of Supervisors appear only too willing to go along with his opportunistic trampling of free speech rights.

Life Legal Defense Foundation Ensures Pro-Life Advocate’s Due Process

Last week, a federal judge hit the brakes in what U.S. Attorney General Eric Holder had assumed would be a “slam dunk” case against pro-life sidewalk counselor David Hamilton. The Attorney General went after Hamilton with federal charges under the Freedom of Access to Clinic Entrances (FACE) Act. The judge’s refusal to grant a summary judgment comes on the heels of FACE case rulings supporting the rights of pro-life sidewalk counselors outside of abortion clinics in West Palm Beach and Denver. In March, the Department of Justice dropped charges against Colorado pro-life advocate Kenneth Scott, and the following month dropped the case against pro-life sidewalk counselor Mary Susan Pine of Florida and paid her $120,000 in damages.

In court action to defend Hamilton, the Life Legal Defense Foundation provided funding and legal support to attorneys Vince Heuser and Michael Hirsh, and the team was able to stop the summary judgment. As a result, in a decision on September 20, 2012 from the Western District Court of Kentucky Louisville Division bench, the judge recognized that there are issues of fact to be determined, and therefore would not grant Holder’s motion for summary judgment.

Hamilton, a pro-life advocate, was outside The EMW Women’s Surgical Center in Louisville, Kentucky in January of 2010 in an effort to persuade women to consider alternatives to abortion. At that time, an EMW volunteer escort placed herself between Hamilton and a patient with whom Hamilton wanted to speak. This event led to Holder pursuing Hamilton with a FACE charge. Later, the Attorney General asked for summary judgment, assuming that based on agreed facts, Hamilton did violate the FACE Act.

“I’m certain the Attorney General’s office thought this was going to be an easy case with a forgone conclusion,” said Dana Cody, Executive Director of the Life Legal Defense Foundation, “but the federal court has recognized that there are two sides to every story.” Cody’s observation is based, in part, on recent cases out of Florida and Colorado in which federal courts have upheld the rights of individuals to peaceably offer information on alternatives to women seeking abortions. “U.S. courts are charged with protecting the freedoms of all American citizens,” said Cody. “Sidewalk counselors have the same rights as other people. The Life Legal Defense Foundation wants to ensure that those rights are protected.”

Read PDF copy of the judge’s decision.

Could it be that the Obama Department of Justice is getting the message that pro-life advocates are not violating the Freedom of Access to Clinic Entrances Act when they engage in peaceful advocacy on the public sidewalk?

Last week, in an abrupt about-face, the DOJ dismissed the Pine case, which they had earlier appealed. Not only was the case dismissed, the department also agreed to pay $120,000 in attorney fees.

Prior to the DOJ’s appeal, Florida resident Mary Susan Pine thought her legal battles were over when the lower court judge dismissed all charges against her. The dismissal was based on the complete lack of evidence presented by Attorney General Eric Holder. In dismissing the charges, Judge Ryskamp openly chastised Holder, questioning his motives for bringing the charges in the first place. The judge’s comments raised the issue of whether there might have been a conspiracy between the government and the abortion clinic to violate Ms. Pine’s free speech rights. Following this rebuff, the DOJ promptly filed an appeal, which it has now dismissed. Finally, Ms. Pine has been vindicated. LLDF congratulates our friends at Liberty Counsel for their exemplary work defending Ms. Pine.

The dismissal of the Pine case came on the heels of the DOJ dismissing all charges against Ken Scott, another peaceful pro-life advocate being unjustly prosecuted under FACE.

Please see http://www.lldf.org/category/freedom-of-access-to-clinics/ for an overview of prosecutions under FACE.

Mary Susan Pine thought her legal battles were over when a Florida judge dismissed all charges against her based on the complete lack of evidence presented by Attorney General Eric Holder. After all, Judge Ryskamp openly chastised Holder, questioning his motives for bringing the charges in the first place and suggesting a conspiracy between the government and the abortion clinic to violate Ms. Pine’s free speech rights. The Department of Justice disregarded the court’s sound ruling and has now filed an appeal. Despite the struggling economy and skyrocketing federal debt, apparently, the U.S. Government sees fit to expend unlimited taxpayer dollars pursuing these baseless charges against Ms. Pine. Once again, the Obama administration is proving that it will stop at nothing to silence the pro-life message and will relentlessly work in collaboration with the abortion industry to accomplish this end. Read more about other FACE cases.

In a hearing held on January 26, 2012, attorneys with the U.S. DOJ asked a federal district court judge to order Ken Scott to remain more than 25 feet away from the entrance of a Colorado abortion clinic. Judge Brimmer denied the DOJ’s request, striking a significant blow to the government’s case against Scott.  Scott is a peaceful pro-life advocate who hands out literature and counsels women on the public sidewalks outside abortion clinics.

These actions are constitutionally protected and Scott’s lawyers will vigorously fight to ensure these freedoms are not stripped away by an overzealous Justice Department seeking to silence the pro-life voice in America.  Read more about the Scott case here.

Justice for one prolife advocate gives hope to others being persecuted by Eric Holder’s Justice Department. Susan Pine was accused of violating the Freedom of Access to Clinic Entrances Act. A Florida judge dismissed all charges against her pointing out that the government had a complete lack of evidence to prove all three elements required under the FACE claim. The court went so far as to question whether the charges brought by the DOJ were the product of a collaboration between the government and the abortion clinic to violate Ms. Pine’s free speech rights rather than an effort to protect those purportedly injured by Ms. Pine’s actions. In light of the court’s comments in the Pine case, one has to wonder what the motivation is behind other FACE prosecutions like Mr. Retta, Mr. Hamilton, and Ms. Parente.