An interesting and generally quite correct decision from the Ninth Circuit. The facts:
On March 24, 2003, Plaintiffs Paul Kulas, a Bio-Ethical Reform employee, and Thomas Padberg, a Bio-Ethical Reform volunteer, drove to Dodson Middle School in Rancho Palos Verdes, California. Kulas drove a truck that displayed the [large, graphic] photographic images of aborted fetuses and Padberg drove an escort “security vehicle.” The security vehicle was a white Ford Crown Victoria sedan equipped with a security cage, red-and-amber flashing lights, push bars, and antennae mounted on the roof. The two men arrived at the school at about 7:30 a.m. — about thirty minutes before classes began. They then drove on public streets around the perimeter of the school.
Plaintiffs’ graphic display quickly caused concern among school officials. Defendant Art Roberts, an assistant principal at Dodson Middle School, identified traffic as one of his primary concerns. According to him, 85 to 95 percent of Dodson’s 2000 students arrive by bus or car between 7:15 a.m. and 8:00 a.m. The students’ arrival causes “heavy traffic” around the school. This traffic can become a safety hazard when drivers or pedestrians become upset, angry, or distracted. At a preliminary hearing, Roberts testified that during the time he had worked at Dodson Middle School, vehicles on streets around the school had struck five children and killed two.
On the day Plaintiffs were at Dodson Middle School, Assistant Principal Roberts observed some children stopping on the sidewalks and staring at the photographs of aborted fetuses, while others momentarily stood in the middle of the street. Faculty members also reported “abnormal” difficulty getting children onto the campus.
Assistant Principal Roberts identified additional concerns. He saw a number of children express anger over Plaintiffs’ graphic display. He also overheard a group of boys planning to throw rocks at the truck. The group disbanded only after Roberts confronted them. Assistant Principal Roberts observed two or three girls crying. He also said that at least one class spent time discussing the truck’s displayed images of aborted fetuses. Nevertheless, Assistant Principal Roberts said the school had a “fairly normal opening” and that all students he could see were on the campus by the start of classes at 8:01 a.m.
The plaintiffs were then barred from the area under a law generally banning people from being on a street or sidewalk near a school "without lawful business" when their "presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school its pupils or school activities."
The court held that, because of First Amendment concerns, the statute should be read to cover only disruption caused by the noncommunicative aspects of the speech (e.g., its loudness). The statute should not be interpreted, the panel concluded, as covering disruption caused by listener hostility to the content of the speech (which is how the disruption was caused here).
The three-judge panel was solidly liberal; the opinion was written by arch-liberal Judge Harry Pregerson.
UPDATE: I initially erred in the description of the procedural posture, characterizing this as overturning the conviction — I've now corrected this to reflect the fact that the plaintiffs were only barred under the government's interpretation of the law from the area, not actually convicted of violating the law. The First Amendment discussion remains correct. My apologies for blogging too hastily and thus incorrectly, and my thanks to commenter Jacob Berlove for the correction.
But I am human. So when I took my kids out to dinner and someone was holding such signs across the street, my wife had to restrain me from going over and picking a fight.
Great. So now you know how I feel about tattoos and sloppy attire. I want to beat the bastards up (or at least verbally remonstrate them).
[Note that the word bastard in the above sentence is literally correct since may Mods are bastards at law [EV: Pointless and insulting attack on particular public figures' children omitted -EV].]
No. Mods as opposed to Trads. You know, the Multi-Culti War.
I did that just the other day - told a guy he was a f****** slob. But it wasn't a youth, it was a 60-ish white guy with the dirty, mottled dreads that indicate a desperation to be black.
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If you hadn't tipped it off with this, and if I hadn't clicked the link, I would have guessed the panel would have been composed of, maybe...
Kozinski, O'Scannlian, and Gould.
What's going on in the 9th Circus?
Huh, funny. I did it the other day too, except it wasn't either of those, it was a 40-something black guy in a suit indicating a desperation to be President. Why won't these anti-abortion, tattoed, dreaded, and uppity people just learn to be invisible when we're nearby?
Great. So now you know how I feel about tattoos and sloppy attire. I want to beat the bastards up (or at least verbally remonstrate them).
[Note that the word bastard in the above sentence is literally correct since may Mods are bastards at law (like Barack Hussain Obama II, Bill Clinton, or Madonna's get in that their parents were not lawfully married to each other at the time of their birth.]
Well there are three people who right now probably wouldn't expect to be associated with one another. But just for the record, none of the three wear sloppy attire, and only one (Madonna) might possibly have a tattoo, although even that may not be correct. We've seen most of her skin and I don't recall seeing one.
Also, none are technical bastards as you say. What they have in common is that they were not raised by both of their natural parents. Barack Obama is the son of Barack Obama Sr., who was married to his mother, but they divorced when he was a small child and his father left the picture, so Barack Jr. was raised by his single mother and grandparents. Bill Clinton's father, William Blythe, was married to his mother but died in a car accident while she was pregnant with Bill. His mother later remarried and Bill took the name Clinton from his stepfather.
Finally, any lover of 80s pop music knows that Madonna Louise Ciccone's sometimes controversial expression in that era was a rebellion against her upbringing in a strict Catholic household in Michigan, where she was one of six children born to married parents. Her mother died of cancer when Madonna was young and her father later remarried.
Google it.
On a separate, unrelated note, I had an oral argument before 2/3 of the same panel the same week this case was argued (Judges Pregerson and Fletcher were on my panel). I have waited 16 months for the Court to rule. This case gives me hope that mine will be decided shortly.
California Vehicle Code Section 25269:Section 21055 exempts authorized emergency vehicles in various situations.
I can't wait to drive around grade schools in the morning showing off my personal beliefs to a bunch of 12 year olds.
Why do you hate the troops?
You look away. Outside of the home, the First Amendment expects you to suck it up. Or walk away. (Except, of course, for captive audiences, unprotected categories of speech, etc.)
Cohen v. California, baby.
(checking outside to see if any apocalypse signs are appearing in the sky...)
No one forces you to interact with society. When one strolls about the public forum, one should anticipate (and deal with) a bit of rough-and-tumble.
Gould? a conservative? No. More a a moderate (and Bill Fletcher is more conservative than his mother, but then again that isn't saying much). The only Clinton appointee I would describe as a conservative is Tallman.
Gould is certainly more conservative than Thomas and Paez, probably even Berzon. But a conservative he isn't.
Perhaps I misread the case, but it appears to me that there was no "conviction"; in fact, the defendants were never arrested. This case was a section 1983 suit on first and fourth amendment grounds, with the officers getting qualified immunity as to the first amendment grounds. The plantiffs alleged that they refrained from taking their truck to other schools for fear of arrest, but the fourth amendment allegation here was an unconstitutionally prolonged stop, not arrest. As there was no trial (and thus no conviction) the panel had to work eith the statute on a blank record, guessing if it would be narrowly interpeted to avoid constitutional problems, without benefit of a trial court's construction.
P.S. I didn't really get the reasoning why the panel concluded that the cops couldn't search the vehicle on suspicion of illegal warning lights. The vehicle appeared to have the lights on, and I don't see why this didn't suffice for probable cause to test them. The panel's discussion of other cases seems to miss the point.
The listeners' consternation was not (it seems to me) caused by their hostility towards the speakers' position -- indeed, most of the people involved probably didn't know the position. They were just upset by photos of dead babies. Is that really much different than people being disturbed by extremely loud noises?
Imagine I wanted to demonstrate in favor of (or, I suppose, against) contraception and chose to do so by displaying large graphic photographs of people having sex. Could I park my displays in front of a public school with impunity? Something similar has been tried.
Search the vehicle for evidence improper warning lights? And what evidence, pray tell, would you expect to find in such a search? Perhaps an on/off switch. Maybe.
But I think you would have a hard time checking anything other than the nobs on the dash for evidence of that "crime."
I am fairly conservative. I believe in the automobile exception to the warrant requirement. But that doesn't come close to passing MY personal "smell" test.
The security vehicle was equipped with "red-and-amber flashing lights" as stated in the fact section of the opinion. At least if the lights were in working order, this would be illegal, according to the provisions of California law as stated in footnote 13 of the opinion. Why isn't this enough to search the vehicle for the limited purpose of seeing if the lights were in working order, especially with a switch in plain view as stated in footnote 16 of the opinion?
If the purpose was to check switches to see if the lights worked, I agree there was probable cause. I read your prior post as suggesting the police were authorized to conduct fishing expedition of the vehicle's contents in a search for contraband.
I would be very interested to hear where you think the right to not interact in public with communication you happen to dislike comes from.
I met with one of the Center for Bioethical Reform (I think that is the full name of the group) people a few months ago. He wanted to bring his presentation to our campus.
Generally, the posters contain three parts: one of the Civil War (and/or African-American civil rights movement), one of the Holocaust, and one of an aborted baby. The theory, at least, is that the abolitionist movement, civil rights movement, and anger over the Holocaust happened when people saw both the humanity of the victims and their brutal deaths. The CBR people want to do the same for the pro-life movement, so they will show pictures of aborted foetuses, often next to a dime or a quarter, labeled with a physician's estimate of gestational age.
While it is not a tactic I agree with (I much prefer to demonstrate the humanity of the unborn, at all stages, by different means), the First Amendment does give people the right to be jerks.
Usually, from what I've heard, CBR puts up these posters at large college campuses (often state schools, because they can litigate if refused). They will set up a station and display the posters all day long, and be around to answer questions. Sadly, they didn't give the middle schoolers the opportunity to ask questions, sit down, process this, and, most importantly for young people, have a parent or adult around to okay it. Nevertheless, legal, because these are things we restrict through social criticism and not legal channels.
As for the opinion and the liberals who wrote it: I'll agree that they may have been trying to move First Amendment law their way for future cases. I will also posit, given that CBR likely included graphic images of the atrocities committed against slaves, Holocaust victims, and people like Emmett Till, that they did not want precedent on the record that it is wrong or unlawful to display such images to middle school children.
Take this all with a grain of salt, as I'm a wee bit on the pro-life side. :)
To violate one of the general lighting statutes is, or was last I knew of it, a Class B infraction and a $17 fine. Is California's statute sufficiently more draconian as to allow arrest?
Also, under what conditions does the California statute actually specify the use of special hazard lights? For example, here is Colorado's statute on the matter (CRS 42-4-215(7):
Any vehicle may be equipped with lamps which may be used for the purpose of warning the operators of other vehicles of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking, or passing and, when so equipped and when the said vehicle is not in motion or is being operated at a speed of twenty-five miles per hour or less and at no other time, may display such warning in addition to any other warning signals required by this article. The lamps used to display such warning to the front shall be mounted at the same level and as widely spaced laterally as practicable and shall display simultaneously flashing white or amber lights, or any shade of color between white and amber. The lamps used to display such warning to the rear shall be mounted at the same level and as widely spaced laterally as practicable and, except as provided in section 42-4-215.5, shall show simultaneously flashing amber or red lights, or any shade of color between amber and red. These warning lights shall be visible from a distance of not less than five hundred feet under normal atmospheric conditions at night.
Lol.
I am glad the court made the right decision. Reminds me of good old college days when people like that set up big displays around school. I don't recall anyone wanting to take them down - instead it caused lots of discussion (a good thing).
I think we may now see a new form of action. I figure that you will start seeing copycats covering the liberal-conservative spectrum. Can you imagine the same with huge pictures of men making out (or really ugly women, because lets face it, few middle school guys would actually be upset . . .) or white power banners.
Another discussion is how efective these signs are. Shouldn't voters be targeted, instead of 10-13 year olds when trying to make a big change?
Many of those 10-13 year-olds will be eligible to vote in several years.
Your comment was a bit snide and not called for.
Many of those 10-13 year-olds will be eligible to vote in several years.
If I am trying to change the laws, say perhaps to a ban on abortion, I would be working ass off to get as many repubs to the senate as possible and get a repub president. These guys are trying to encourage the values of a group notorious for changing its mind every three seconds.
Assuming that you're referring to some sort of advertisement, no. Commercial speech gets less protection from the First Amendment than, say, political/social issues.
I have no opinion about the substance of your comment, but I have to disagree with your complaint directed at Andy Freeman. If his comment was at all snide or uncalled for, I don't see it.
My point was about effectiveness of targeting a population that goes through styles, pop stars, the opposite sex being icky, at such a fast rate that it just does not seem worth it.
Student's objections (the heckler's veto) to the sign (throwing rock, tears) are irrelevant. Faculty were having trouble getting students onto campus because of the distraction and students were on a busy traffic filled street. An equally large or equally graphic image of anything would cause such a distraction.
Also, the court mentioned that it would not graft onto First Amendment jurisprudence an exception because the people viewing the message were children. The USSC has considered that to be an important First Amendment concern in other areas when the message was delievered to a relatively captive audience (Pacifica and the pervasiveness of the radio is similar to the size of the sign and the timing of its delivery).
If the lights were activated, then the officers can arrest. And if they can arrest, they can conduct a fishing expedition under the "inventory" exception to the warrant requirement.
Uh, we had that for the better part of a decade and abortion remains quite unrestricted.
Anyway, refusing to target young folk would leave the issue essentially uncontested during the formative years for most people. Not exactly a recipe for success.
Actually, there has been dents made that happened because of the Alito and Roberts appointments.
I quit this topic - I make a simple statement of my opinion, and now a poster says that I think we should refuse to go to young people.
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I certainly defer to you. I'm sure you are far more familiar with him than I.
However, the vigorous defense of the RKBA he penned in his separate concurrence in *Nordyke v. King* leads me to believe that he has at least some conservative genes in his makeup.
Actually, Barack Sr. already had a wife back in Kenya (whom he never divorced and who now lives in England, BTW), making his marriage to Stanley Ann Durham bigamous, and therefore invalid under Hawaiian law.
It's actually a very good strategy. Children are natural pro-lifers - they easily identify with the foetus/baby, and, for the most part, have yet to so much kiss someone of the opposite sex, let alone get into a situation in which they would feel that an abortion is their best (or only) option. Yet, I doubt that many elementary and middle school aged children think about abortion - or even know what it is.
By targeting children, pro-lifers are trying to get them to think about the issue while they still identify with an unborn child/foetus. Hopefully, the feeling of revulsion and horror will stay with them as they grow up. As a quick data point (from the CBR fellow): when students enter college, the pro-life/pro-choice margin is 47-37. When students graduate, that flips to 24-73. Arguably, college may be too late a time to get people to think about this issue.