Anti-abortion activists take on Virginia loitering ban

Thursday, September 16, 1999

Three anti-abortion activists are challenging a Virginia law that bans loitering on public bridges.

The American Family Association, a Christian activist organization based in Tupelo, Miss., filed a federal lawsuit on Aug. 27 on behalf of David and Jeanette Lytle of Lynchburg and Joan Maguire of Virginia Beach. The three participated in a July 16 anti-abortion demonstration on a pedestrian overpass of Interstate 64.

In view of motorists passing below, 12 demonstrators — including the three litigants — unfurled large posters, some featuring pictures of aborted fetuses, and signs decrying the ills of abortion. Forty-five minutes after the demonstration began, Norfolk police arrived and ordered demonstrators to leave, saying they were loitering on a pedestrian bridge in violation of Virginia law. The plaintiffs chose to leave rather than face arrest. Two other demonstrators were arrested.

The police “interfered with (the demonstrators') constitutionally protected right to protest,” Michael DePrimo, American Family Association Center for Law and Policy staff attorney, said.

The lawsuit filed in U.S. district court in Norfolk asserts that “Section 46.2-930 (the loitering restriction in question), on its face and as applied, unconstitutionally chills and abridges the rights of Plaintiffs and third parties not before the Court to peaceably assemble as guaranteed by the First and Fourteenth amendments of the United States Constitution.” The lawsuit also cites infringement on the First Amendment rights of free speech, free exercise of religion and freedom of association, and contends that the Virginia statute is unconstitutionally vague, broad and “invites arbitrary and discriminatory enforcement.”

Key, perhaps, to this case is whether a pedestrian bridge is a public forum, as the lawsuit asserts. Governmental entities are generally held to very high standards when they attempt to regulate speech in public places, particularly if that speech occurs in what are referred to as public fora. Public fora or forums are public places that have over time and by the Supreme Court been recognized as places where speech relating to matters of public concern typically occurs and is strongly protected. Streets, parks and sidewalks are all considered examples of public forums in which speech is entitled to an added level of protection.

The protesters' lawsuit requests both an injunction against the enforcement of the law and nominal and punitive damages for the plaintiffs.

The commonwealth of Virginia's response to the lawsuit contends that not only is the law being challenged neither vague nor broad but that, because the actual plaintiffs in the case were not arrested under the statute, they have no legal standing to challenge it in court. The reply goes on to argue that the two protesters who were arrested were arrested by mistake. “Indeed, although the Piccadilly overpass bore a 'no loitering' sign on July 16, 1999, that no sign was posted in error.” Both the commonwealth of Virginia and the city of Norfolk have sent letters to the AFA, informing the organization that they will curtail enforcement of the bridge loitering ban “pending completion of a review by the Virginia Transportation Commissioner.”

Neither officials with the commonwealth of Virginia nor the city of Norfolk returned phone calls for comment on this case.