9th Circuit backs Calif. city’s clinic ‘bubble’ zones

Friday, July 29, 2011

SAN FRANCISCO — A federal appeals court has upheld Oakland’s so-called “bubble” law prohibiting protesters from coming within eight feet of anyone trying to enter an abortion clinic.

That so-called bubble exists within a 100-foot buffer zone around entrances to the city’s reproductive clinics.

But the 9th U.S. Circuit Court of Appeals yesterday ordered Oakland to revise its policy, saying the city’s enforcement of the 2007 ordinance is unconstitutional.

The unanimous three-judge panel said in Hoye v. City of Oakland that the city erred when it allowed supporters to offer words of encouragement to women entering a clinic but barred an abortion opponent from trying to speak to the women.

The panel ruled in a lawsuit filed against the city by the Rev. Walter Hoye, who calls himself a “sidewalk counselor,” trying to dissuade patients from having abortions.

“The Ordinance is facially constitutional,” Judge Marsha Berzon wrote for the panel, noting that Oakland’s law was modeled on a Colorado statute that was upheld  by the U.S. Supreme Court in 2000. However, “as to Hoye’s challenge to the enforcement of the Ordinance, we hold that Oakland’s enforcement policy is a constitutionally invalid, content-based regulation of speech.”

The appeals court sent the case back to the federal trial judge with instructions that the court help Oakland “adopt and henceforth apply a policy that enforces the Ordinance as written, that is, in an evenhanded, constitutional manner.”

The San Francisco Chronicle reported that Michael Millen, Hoye’s attorney,  said the decision was the first of its kind in the nation.

Millen was quoted by the newspaper as saying that to comply, the city “would need to enforce the ordinance as vigorously against the escorts as they did against Mr. Hoye.”

The Oakland Tribune reported that Millen called the ruling a landmark in First Amendment rights. “No speaker, no matter how worthy their cause may be, is entitled to special privileges from the city,” he was quoted by the Tribune as saying.

According to the Chronicle, Barbara Parker, Oakland’s city attorney, said the ruling would require only “tweaks to the enforcement procedures.”

First Amendment Center Online staff contributed to this report.

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