Anne Starr
“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.” – The First Amendment, US Constitution
In a victory for free speech, Life Legal Defense Foundation attorneys have knocked down a city law deliberately designed to dilute an abortion protester’s message. LLDF lawyers also won more than $65,000 in court costs and fees from the City of Menlo Park, whose leaders had passed a sign ordinance aimed at pro-life posters.
The fees and costs have been paid by the Northern California city, with about $50,000 of it going directly to LLDF, the largest “contribution” in LLDF’s history. Executive Director Dana Cody said the money would be used for “more case work … the more cases we can support, the more lives are saved because our clients and others who see our results don’t feel a chill to their speech rights.” The win was a welcome change for LLDF attorneys. In the 27 years since the Roe v.Wade decision, the presumption of a woman’s right to choose abortion has so colored the culture that a pro-life win in court is difficult. When media disapproval, cultural assumptions about women’s rights, and pro-abortion government officials join forces, LLDF attorneys have lost even with the First Amendment on their side. To bolster their spirits, LLDF volunteer lawyers sometimes tell each other to stay the course because “we can’t lose them all.” The Menlo Park case proved that point. The case started in 1996, when the City Council passed an ordinance at the end of August in response to citizens’ complaints about the content of the signs. During public comment time at a regular council meeting, some citizens complained about graphic signs carried by demonstrator Ross Foti. His signs of large color photographs showed aborted babies. The biggest was about three by five feet in size. He carried one sign and put others on his car parked near a Planned Parenthood abortion clinic within the city limits of Menlo Park. Foti credits these signs with saving the lives of several children whose mothers have stopped to thank him—and undoubtedly many others he never saw again.
After hearing people complain about the signs, the council passed an emergency ordinance changing the city’s sign laws so that Foti’s signs were outlawed. LLDF attorney Katie Short said the introduction to the ordinance included sections saying that Foti had disturbed the peace of the public by displaying large graphic signs, and then went on to outline a sign ordinance that was strictly aimed against those signs.
“The City Attorney did realize that the city could not pass an ordinance against this type of picture, so he went for size and said people could carry signs no larger than three square feet in the public right of way,” Short said. A three-square-foot sign measures about 21 inches on each side, Short pointed out. People often mistakenly envision three square feet as three feet on each side. However, a three square-foot sign is roughly equal to just five sheets of binder paper taped together, she said. The city made several exceptions to the sign size rule, including real estate signs, public information signs, and any signs put up by the government. “We got the ordinance struck down as content-based because of the exemptions which were carved out for less upsetting signs,” Short said. “City Council members made exceptions so that they would not bother people they didn’t want to bother, such as real estate agents.”
The ordinance also said that anyone carrying a sign should keep moving to avoid blocking the public right of way, and should not keep signs on cars. Those rules forced Foti to keep walking even when nobody else was using the sidewalk, and prevented him from using his car to supplement his hand-held sign.
LLDF challenged the new city law at the end of September, 1996. Short and fellow attorney Mike Millen, who practices law in San Jose, took the case to federal court in San Francisco for LLDF.
The City of Menlo Park was represented by its city attorney, who had served on local and national boards for Planned Parenthood. Later, when his association with Planned Parenthood was mentioned during deliberations, officials for the city “got all huffy” at the suggestion of a conflict of interest, Short said. Although originally the case lost before an unsympathetic federal district court judge, it won on appeal. The Ninth Circuit Court of Appeals in San Francisco left no question about the issue, saying the Menlo Park ordinance “turned the First Amendment on its head.” The City of Menlo Park then rewrote its sign ordinance, ostensibly according to the parameters outlined by the Court of Appeals. Short and Millen again challenged it, and this time, the district court enjoined the ordinance in the first instance. Shortly thereafter, the City agreed to abandon the ordinance and pay the pro-lifer’s attorneys fees.
Short remains concerned about size restrictions on signs, noting that in one case against abortion protesters in San Diego, a court reduced the size of allowable pictures to only eight and a half by 10 inches, the size of one sheet of binder paper. [That case, Wilkerson v. Scott, is presently on appeal. —Ed.] No matter what the topic—abortion, political comment, labor disputes—passersby will learn nothing from a sign that small, she indicated.
The Menlo Park case was not only a legal and financial win; it was also a win that generated respect for the pro-life voice. Short, who is the legal director of LLDF as well as a volunteer attorney in this case, said that for the first time municipal authorities are taking Life Legal’s letters seriously. They know LLDF has won a case. They know LLDF has been awarded attorney’s fees and court costs. They know LLDF is watching what local governments do. They realize that a poorly crafted law will be challenged, and will cost them money. Meanwhile, the best news is that the Menlo Park abortion clinic has closed, Short reported. For demonstrator Foti, that just means a change of location.
He continues to follow his conscience and hold his signs outside other south Bay Area clinics where abortions are committed, hoping to change the minds and hearts of mothers, fathers, and perhaps even abortion clinic workers.