The Evening Bulletin, Philadelphia
On Monday, a panel of judges sitting on the Ninth Circuit Court of Appeals heard arguments pertaining to a case involving pro-life activists, an overzealous police force, concerned parents and a squeamish school administration. The question presented by the case asked the court how far a society can go in its quest to quash speech it finds distasteful or views unfavorably.
In the Center for Bio-Ethical Reform, et al. v. L.A. County Sheriff’s Department, et al., the case presently before the Ninth Circuit, the First Amendment practices of the Center for Bio-Ethical Reform, Inc. (CBER), a California pro-life organization, were placed under the judicial microscope. CBER routinely exercised its First Amendment freedoms by driving a truck on the streets of Los Angeles County. The truck, however, was not your ordinary truck.
According to Robert Muise, an attorney with the Thomas More Law Center, a pro-family public interest law firm, the truck was sporting pictures of “first-term aborted fetuses.” “The pictures usually show a coin next to the fetus, and people can see that this fetus has hands and other defining characteristics,” stated Muise. The word choice is written above the images.
The pictures did not become an issue until CBER began to drive its truck on a public street that passed by a school. Parents, neighbors and school officials took a dislike to the images, as well as CBER’s pro-life message, and it was not long until the Los Angeles County Sheriff’s Department had its hands in the constitutional cookie jar.
The deputies, who responded to a dispatch call that read “anti-abortion vehicle driving with offensive pictures,” arrived at the school and were at a loss as to what charges could be used to eradicate the pro-life problem. “The deputies detained (the pro-lifers) for 75 minutes,” stated Muise.
Muise argues that the deputies used that time to “figure out how to stop the pro-lifers.” And when the deputies stumbled across California Penal Code Sec. 626.8, they had found the means needed to remove the pro-life message from the area. California Penal Code Sec. 626.8 is a statute that was drafted, designed and enacted to prevent gang activity outside California’s schools. The statute essentially prevents disruptive conduct outside schools and if a school administration stumbles across such activity, they can order the individual or group to leave; failure to comply results in a pair of handcuffs.
The deputies got the go-ahead from school officials and ejected CBER, and its truck, from the public streets outside the school on the basis the pro-life message was disruptive. CBER was forced to leave and this lawsuit followed. The fate that befell CBER on the streets of the Golden State, though, is reflective of a popular trend detailing the growing persecution of Christian/pro-life speech. Christian and conservative activists are now discovering that if they chose to engage the marketplace of ideas, they are ultimately met with a decision to be silenced or be sentenced.
To support claims that Christian speech, i.e. speech dealing with abortion, homosexuality, and/or salvation, has become a second-class citizen in the marketplace, pro-family attorneys point to a laundry list of examples where police have erred on the side of censorship, not caution. Last month, the Orlando-based Liberty Counsel intervened when informed officials in Altamonte Springs, Fla. were infringing on the rights of pro-life advocates. Police officers had approached the pro-lifers and told them to muzzle their message, put down their signs or go to jail. Liberty intervened and Altamonte Springs backed off.
In Alabama, street preacher Matt Bourgault was accosted by Montgomery police officers for standing on the corner preaching a Gospel message. Bourgault was charged with disorderly conduct and had to stand trial. He was eventually acquitted, but only after the American Family Association intervened and defended Bourgault free of charge. Then there is the story of the Philadelphia 11. This group of Christians, led by local activist Michael Marcavage, sought to preach a Gospel message during a gay pride event taking place on the public streets of Philadelphia. Marcavage’s group was heckled by an opposing group that dubbed themselves the “pink angels,” they were repeatedly impeded from spreading their message and the police stood idle as the freedom of speech disappeared from the birthplace of liberty. When the police did finally act, they arrested Marcavage’s group. The Christian group was charge with eight criminal counts and was looking at potentially serving over 40 years in prison. The Philadelphia District Attorney’s Office vigorously prosecuted the case, despite compelling video evidence, but a Philadelphia judge kicked the criminal case.
Among those in First Amendment circles, the above examples represent what is best known as a “heckler’s veto.” The Supreme Court, in Hill v. Colorado 530 U.S. 703, 735 (2000), held that a heckler’s veto occurs in cases where “the regulations allowed a single, private actor to unilaterally silence a speaker even as to willing listeners.” The danger of such a veto lies in its inherent ability to shut down an unpopular segment of free speech. In other words, as expressed by the High Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the veto confers “broad powers of censorship… upon any opponent of… speech.” And while the Supreme Court has attempted to stamp out traces of the heckler’s veto, the veto, just like a garden weed, always finds a way to grow back.
In the ’20s, the limits of the First Amendment were pushed when anarchism and socialism ran up against a society stunned by the Bolshevik Revolution. The Supreme Court attempted to quell fears, but Red Scare nevertheless ensued. By the time the ’60s rolled around, the socialists of the ’20s had gained admittance to the marketplace of ideas and America was up to her knees in a war that sent her boys to the snares of Saigon. Hence, with hippie activists burning bras, flags and draft cards, while simultaneously engaging in sit-ins and campus demonstrations, the limits of the First Amendment were pushed, and expanded, once again. With Barrack Obama pushing for national health care and war activists camping outside of 1600 Pennsylvania Avenue with little repercussion, it is clear that the two aforementioned, once widely unpopular groups, are back within the mainstream.
If case law is any indication, pro-family attorneys, like Muise, argue it is the Christian activist that now embodies the counter culture and it is the Christian activist that is now victim of the heckler’s veto-the power of the many to silence the few.
Turning attention back to the Ninth Circuit, Muise is cautiously optimistic that the judges will reach the right result. “The argument went well and lasted well over an hour,” Muise told The Bulletin. Most arguments only last forty to fifty minutes and appellate courts are sticklers when it comes to keeping to a schedule.
“I think the judges found the First Amendment issues very interesting and even though this is an abortion issue, I think they recognize that there is a speech principle that cuts across the board.” For the Christian activist, they hope Muise is right. Joe Murray can be contacted at jmurray@thebulletin.us.