Today Life Legal Defense Foundation filed another brief in the ongoing case of Hoye v. Oakland, United States District Court, Northern District of California, Case No. C07-06411 CRB. The briefing was requested by Judge Breyer upon remand by the Ninth Circuit Court of Appeals, which earlier this year ruled the City of Oakland’s enforcement of its “bubble zone” ordinance was unconstitutional in that pro-abortion escorts were deemed exempt from the law. Please see article VICTORY!—Pastor Hoye’s Constitutional Rights Vindicated at the Ninth Circuit.
Today’s filing responds to Judge Breyer’s request for briefing on another portion of the City’s enforcement policy, specifically, a restriction on leafleting from a stationary position. Oakland’s ordinance, patterned on a Colorado law upheld by the Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000), makes it unlawful, within 100 feet of the entrance of an abortion clinic, to approach within eight feet of a person entering the facility without that person’s consent.
The City continues to maintain that a stationary speaker extending an arm to offer a leaflet without the recipient’s permission has committed a forbidden “approach” under the ordinance. In briefing the court, attorneys Mike Millen and Catherine Short, Legal Director for LLDF, reason that in light of the Supreme Court’s historic protection of the right to leaflet, the idea that the Court would countenance a prohibition on the very mechanism of leafleting, i.e., the proffer of a leaflet by extending an arm, is absurd. “Indeed, . . . handing out leaflets in the advocacy of a politically controversial viewpoint . . . is the essence of First Amendment expression.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)
The resolution of the question will no doubt come down to the district court’s interpretation of the word “approach.” In its ruling earlier this year, the Ninth Circuit found no relevant differences in the text of Oakland’s ordinance and that of the statute at issue in Hill. In construing the latter, the Supreme Court specifically countenanced stationary speakers handing leaflets to passing patients where it said, “[T]he statute does not, however, prevent a leafleter from simply standing near the path of oncoming pedestrians and proffering his or her material, which the pedestrian can easily accept.”
“The fact that this law prohibits advancing toward a pedestrian on a public sidewalk to speak to him or her is offensive enough in a free society. But to insist that a leafleter extending an arm is ‘advancing’ is laughable, unless of course the leafleter is Pastor Hoye, who was incarcerated under this ridiculous interpretation of the statute,” states Dana Cody, President of LLDF. “However, LLDF predicts that the district court will reject the City’s attempt to expand the reach of its Ordinance beyond what the Supreme Court has indicated is permissible.”
The hearing on the matter is scheduled for October 21, 2011.