A Tale of Two Cases

Katie Short

It has come to our attention that there may be one or two readers out there who think that all this whining about “the abortion distortion” is just the paranoid ravings of lawyers who can’t get their act together enough to win some straightforward First Amendment cases. This article is for you.

To establish the abortion distortion, one hast o see how judges, and preferably the same judge, look at the same issues when presented within and without the abortion context. An opportunity to do so presented itself when the Ninth Circuit recently handed down a decision in Edwards v. Coeur d’Alene, 262 F. 3d 856 (9th Cir. 2001). In that case, an anti-Aryan Nation protester challenged a city ordinance which prohibited the use of wooden, plastic, or other supports for signs carried during parades and public assemblies. The restriction was part of the city’s “zero tolerance for weapons” policy, and its stated purpose was to prevent rigid support materials from being used as weapons in the event a disturbance occurred.

Although conceding the City’s interest in public safety was legitimate and substantial, the court struck down the restriction because it was not narrowly tailored to serve that interest and it did not leave open ample alternative means of communication. In so ruling, the court had to distinguish one of its own recent cases, Foti v.Menlo Park, 146 F.3d 629 (9th Cir.1998),which held that an ordinance restricting picketers (who happened to be anti-abortion)to a single sign not larger than three square feet in area was narrowly tailored to serve the interest in public safety and did leave open ample alternative channels of communication.

What made this balancing act particularly interesting was that the very same judge, Judge Harry Pregerson, who wrote the opinion striking down the Coeur d’Alene ordinance was one of the three judges who held Menlo Park’s picketing restriction to be basically sound.

A preliminary note on the Menlo Park case: The Ninth Circuit actually found that the ordinance as a whole was unconstitutional, because of its content-based exemptions. That should have been the end of the decision right there. However, the court went on to render what was essentially an advisory opinion about each of the speech-restrictive provisions challenged by the pro-lifers. In other words, the court went out of its way to get on the record its holding that the sign size and number restrictions appeared to pass constitutional muster.

Let’s compare and contrast the treatment of these two restrictions:

Narrowly tailored to serve the city’s interest in public safety:

Coeur d’Alene: The city must provide “tangible evidence” that the restriction is necessary to advance the proffered interest in public safety. However, the city failed to cite “any parade or public assembly prior to the passage of the ordinance in which Coeur d’Alene citizens used sign handles as instruments of violence.” Menlo Park: Despite the fact that the pro-lifers had brought a facial as well as an as-applied challenge to the ordinance, the court focused on the particular circumstances of the pro-lifers’ demonstration site, “within several yards of a bus stop.” In this site, “[e]xtremely large or numerous picket signs nearby could well interfere with a bus’s operation or . . . pedestrian circulation on the sidewalk.” A large sign “may block drivers’ views of road signs and traffic conditions . . .” and numerous signs “may impede pedestrian flow or create a safety hazard.” (emphasis added). Amazingly, in distinguishing Foti in the Coeur d’Alene case, Judge Pregerson referred to these purely speculative harms as “empirical evidence” supporting the restrictions.

Necessary v. nexus:

Coeur d’Alene: The court said that the city had the burden of demonstrating that the restriction was necessary to advance the city’s goals. Menlo Park: The court said the city had only to show that the restrictions served the city’s interest in a manner “which would be achieved less effectively absent the regulation.” The speculative “evidence” cited above showed that a “sufficient nexus” existed between the proffered interest and the restriction.

Less burdensome alternatives:

Coeur d’Alene: The court looked at a sampling (two) of ordinances from other cities regulating picketing at parades. The looser restrictions on sign supports in these other ordinances indicated that the Coeur d’Alene ordinance “burdens substantially more speech than is necessary.” Menlo Park: We argued that, since the advent of picketing as a protected form of speech over half a century ago, not a single city in the country had ever thought it necessary to impose any restriction on the size of signs in order to protect public safety. The court ignored this point.

Impact on communication:

Coeur d’Alene: The ban on sign supports “has an undeniable impact on the manner in which a signholder communicates with the public.” (emphasis added). The court elaborated at length on the deleterious effects of these restrictions on the manner of picketing (see below).

Menlo Park: The court acknowledged that, while the pro-lifers had the right to choose a particular avenue of speech, i.e., picketing, “this is not the same as saying that Foti and Larsen have a First Amendment right to dictate the manner in which they convey their message within their chosen avenue. Government may regulate the manner of speech in a content-neutral way. . . .” (original emphasis).

Coeur d’Alene: In parades and public assemblies, “it is often difficult to see more than a few feet in any direction, or to hear anyone who isn’t standing nearby. These circumstances make it difficult for individual protesters or participants to convey their messages to the broad audience they seek to attract. . . (emphasis added).

Menlo Park: “While each restriction may diminish the amount of speech that Foti and Larsen individually may make on the abortion issue, they do not reduce the total quantum of speech on a public issue. . . . The City’s ordinance does not seek to limit the number of protesters or the times or frequency of their picketing.” (emphasis added). In other words, unlike Mr. Edwards, whose right to communicate is viewed individually, the burden is on Foti and Larsen to make up for the diminution of their speech by recruiting more people to picket.

Coeur d’Alene: “[W]ithout access to sign handles, signholders in parades and assemblies cannot hoist their signs in the air so that the messages are visible above a crowd. The ordinance also makes it much more difficult to display larger, heavier signs and banners. . . .A sign that can be hoisted high in the air projects a message above the heads of the crowd to reach spectators, passers-by, and television cameras stationed a good distance away.” (emphasis added).
Menlo Park: “The district court had before it substantial evidence that pedestrians, a substantial portion of Foti and Larsen’s intended audience, could see and read their three square foot signs.” (In fact, the undisputed evidence was that there were very few pedestrians on the sidewalk, and that Foti and Larsen wished to be seen by people in passing cars.) “Drivers can also see their protest in front of a Planned Parenthood clinic and understand their message. Drivers may be unable to read the words of the smaller signs, but this result is permissible in light of the City’s substantial interest in requiring drivers to devote greater attention to driving conditions and road signs.”

In sum, in the Coeur d’Alene case, Judge Pregerson and his fellow judges on the panel were extremely solicitous of the individual’s right and ability to communicate his message to as broad an audience as possible, including by the use of large, heavy signs and banners, and the City had failed to present tangible evidence that a restriction on this manner of picketing, i.e., using handles on signs, was necessary to serve public interests.

In Menlo Park, Judge Pregerson concurred in a decision that, because signs larger than three square feet, or more than one such sign per picketer, might cause problems, although there was no history of their ever having done so, the city had shown a sufficient nexus to justify its first-of-its-kind restriction. The burden on the pro-lifers’ free speech rights was acceptable because it was only a burden on the manner of their speech, and they could get more picketers to help them, and it didn’t really matter that people passing by in cars couldn’t read the signs because they would know more or less what the pro-lifers were there for and besides, there were still a few pedestrians who could read the signs.

Abortion distortion, anyone?

Looking at the bright side, one might say that, in order to get around its earlier ruling, the Ninth Circuit in Edwards v. Coeur d’Alene retroactively narrowed Foti to the point that it only applies where picketers are demonstrating within several yards of a bus stop and their main audience is pedestrians. A more realistic assessment is that the Ninth Circuit now effectively has two completely different standards for evaluating restrictions on picketing, and a court can choose which to apply at its whim.

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