Ninth Circuit Panel Holds That Oakland Discriminatorily Enforced 8-Foot No-Approach Zone Outside Abortion Clinic

From Hoye v. City of Oakland, handed down today:

Within [100-foot zones around entrances to reproductive health clinics,] the [Oakland] Ordinance makes it an offense knowingly and willfully to approach within eight feet of an individual seeking entry to the clinic if one’s purpose in approaching that person is to engage in conversation, protest, counseling, or various other forms of speech.

Because the Ordinance is modeled on the Colorado statute upheld in Hill v. Colorado, that opinion controls much of our analysis in this case and leads us to the conclusion that the Ordinance is a facially valid restriction on the time, place, and manner of speech…. [But] Oakland appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services and so has enforced the Ordinance against anti-abortion speakers but not pro-abortion speakers. We conclude that, in doing so, Oakland unconstitutionally suppresses speech based on the content of its message….

Possibly the City reads Hill as authorizing the government to regulate speech so as to protect patients from any speech that offends their dignity or privacy, even if the offense stems not from the manner of speech but from the words that are spoken. Protecting privacy and dignity will often require distinctions between content: “You’re a babykiller!” offends a woman’s dignity and privacy; “It’s your right to have an abortion!” often will not….

The Supreme Court [in Hill] ultimately upheld the Colorado statute because it determined the statute to be content-neutral, not because it held that the State could legitimately protect listeners from speech that was offensive only because of the words spoken. Nothing in Hill undermines the bedrock principle that regulations of public speech designed to protect listeners in public fora from substantively offensive speech are fundamentally incompatible with content-neutrality. Oakland’s enforcement policy is therefore a content-based regulation of speech.

Sounds quite right to me, given Hill. Thanks to How Appealing for the pointer.

UPDATE: By the way, for those who keep track of such things, the opinion was written by the quite liberal Judge Marsha Berzon, joined by archliberal Judge Stephen Reinhardt and Carter-appointed Judge Louis Pollak, whom I would also characterize as a liberal.

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