Anne Starr
Life Legal Defense Foundation’s executive director believes in the First Amendment right to free speech, even when that speech is disturbing. In that cause, Dana Cody defends Life Legal Defense Foundation clients who want to tell high school students facts about abortion that they will not hear in the mass media, in class, or in Planned Parenthood programs.
The stark message that abortion kills an unborn child disturbs many students and parents accustomed to hearing only about abstractions such as choice and privacy when abortion is the topic, said Cody. “But (avoiding unpleasantness) is not what the First Amendment is all about.” Cody, a Sacramento lawyer, does pro bono work for several pro-life advocates in addition to her LLDF administrative duties.
As she defends clients in two ongoing California cases, she relies on case law from the Vietnam era. In Braxton v. Municipal Court, a 1973 case, the San Francisco court ruled that anti-war leafletters should be permitted to disseminate information to students. Their political opinions upset some students and parents, but the court ruled that free speech took priority over people’s reactions. In addition, Cody is using the cases of People v. Hirst, also from 1973, and Mandel v. Superior Court, a 1969 case that involved anti-draft leafletting during the Vietnam War. Cody enjoys the irony in using precedents established in causes favored by liberals to protect the currently unpopular speech of those opposed to abortion.
Cody says anti-abortion speakers today face some of the same obstacles that anti-war agitators did a generation ago. Public school officials have attempted to bar pro-lifers from several California schools on the grounds that they are “disruptive,” just as officials blamed anti-war demonstrators for campus unrest. In two Northern California cities, Redding and Rocklin, pro-lifers who wanted to inform students about abortion were denied access to public school property and were ordered to leave the public sidewalk in front of a high school campus.
In Rocklin, she said, pro-lifers did not realize that they had the right to be on the public sidewalk regardless of a high school principal’s opinions. Still, after they were confronted by officials, Cody conservatively advised pro-life advocates not to return for a year. After a year’s absence, the demonstrators returned, this time trying to register first with the principal for permission to be on campus. “The administrator said something to the effect, ‘You cannot register because you’re disruptive,’” Cody reported. “In fact, there was nothing disruptive about them. The objections were simply content-based,” she said. “They say (demonstrators) were disruptive but we have not been able to uncover any examples of problems — which is confirmed by the police report other than a negative reaction to the message.” In legal action following the case, LLDF asked for names of parents and students upset by the pro-life message, but school officials thus far have produced no names, Cody reported. In the Redding case, four pro-lifers were arrested, but the charges later were dropped. One of the four was arrested again after returning to the public sidewalk outside school. That case is still pending. If it is also dropped, then Cody will advise clients in future to call the police or city attorney and inform officials of their plans to be on the sidewalk and pass out literature. The point, she said, would be to avoid confrontation with local police. However, “if we can’t get an attorney for the city or the school district to agree to our right to free speech, then we would file a lawsuit.” Right now, her attitude is to “wait and see what happens.”
Meanwhile, Cody worries that only one message is getting out to most public school students. Because the Planned Parenthood viewpoint has been widely accepted, teens often hear the same theme in family life classes and in the mainstream media. Planned Parenthood provides educational materials, so its message “is ingrained in the school system all over the U.S.,” Cody said. “They say that they offer an educational agenda, but people are not generally aware that they are the largest abortion provider in the United States.” When Planned Parenthood presents abortion as a solution to an unplanned pregnancy, the organization stands to make money if the abortion is performed at one of their clinics.
Cody observed that perhaps because of its widespread acceptance in schools, and thereby at least tacit endorsement, many people think of Planned Parenthood as a “neutral” organization. She knows one pro-life mother who approved her pro-life daughter’s idea to volunteer to help with unplanned pregnancies through a Planned Parenthood office. When the two discovered that abortions were performed by the agency, they decided to put their efforts elsewhere. But the fact that they were unaware of Planned Parenthood’s abortion connection showed Cody how smoothly Planned Parenthood soft-pedals its abortion business.
Meanwhile, pro-life advocates who want to educate high school students by distributing literature at or near a school should be careful, Cody said, advising that the rules are different for those who want to go on campus and those who use the public sidewalk near a school. Visitors to a California public school campus must check in with the main office. In the interest of student safety, officials must know who is on campus. Still, the law is clear that pro-life advocates have a right to tell their message at public schools. Leafleting is considered legitimate business for the purposes of being on campus. Leafleters should know “that they can go out without being afraid.” Advocates should remember to plan their visits at appropriate times [e.g., before and after school or during lunch period] of the school day, and should stand in an appropriate place, she said. Naturally, “advocates can’t just walk into a classroom.” Meanwhile, school officials may give the impression that they have “the absolute right to refuse access to campus,” but California judges have ruled that “reasonableness and public access” are important. “The California courts typically interpret Constitutional rights in a broader fashion (than other states),” Cody said.
Modern school design may make it harder to take messages to students, Cody added. In recent years, new schools have been built to restrict public access. In newer schools, it’s more difficult to get to a common area to address students, she said. Fears for student safety following campus violence have spurred closed designs, she said. When fear is high and outsiders are unwelcome on campus, pro-life advocates must be confident about their right to free speech but careful to register as required by the Education Code. However, those planning to use a public sidewalk outside a campus shouldn’t inform school officials, Cody said, even though it seems the polite thing to do. If groups or individuals begin a pattern of asking for permission to use public sidewalks, they may set an expectation that could later be used to restrict pro-life speech. It’s also possible that a school official, if contacted, could try to talk a pro-lifer out of using a sidewalk near campus. The law says that a “public sidewalk constitutes a public forum, and unless you are blocking a driveway or preventing people from coming and going, it should not be a problem,” Cody said.
She advised pro-life advocates who live outside California to check local laws regarding visitors on public school property. Rules can vary. They may be strict in some states, and nonexistent in others.
Cody said she knows the anti-abortion message can be unpopular. Some printed materials showing the reality of abortion are graphic. Seeing a poster or leaflet with a medical photograph of an aborted baby is upsetting. “People don’t like it. It is not a pleasant subject to confront when you are dropping off your teenager at school—but these are the same kids who can go get an abortion without parental notice or consent.”
[In the months after this interview was conducted, David Llewellen, an attorney practicing in the Sacramento area, has kindly consented to collaborate on this case. Mr. Llewellyn has contributed many hours and has formidable knowledge and expertise in First Amendment cases. He has been an invaluable resource to Ms. Cody, and will be lead counsel at the trial, set to commence November 9, 1999. —Ed.]