On March 19, 2013, San Francisco Supervisor Dave Campos 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.