The Volokh Conspiracy - Ninth Circuit Rejects "Heckler's Veto" Justification for Restricting Display of Aborted Fetus Photos Near School:

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.

	[Eugene Volokh, July 2, 2008 at 7:06pm] Trackbacks Ninth Circuit Rejects "Heckler's Veto" Justification for Restricting Display of Aborted Fetus Photos Near School: 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.