Hirsh v. City of Atlanta, s. S90A1387

• Decision Date: 15 March 1991
• Docket Number: Nos. S90A1387,S90A1494,s. S90A1387
• Parties: HIRSH v. CITY OF ATLANTA et al. WILLIAMS v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

Page 530

401 S.E.2d 530

261 Ga. 22

HIRSH v. CITY OF ATLANTA et al.

WILLIAMS v. CITY OF ATLANTA.

Nos. S90A1387, S90A1494.

Supreme Court of Georgia.

March 15, 1991.

Jay Alan Sekulow, Andrew J. Ekonomou, Atlanta, Thomas P. Monaghan, Walter M. Weber, New Hope, Ky., James Matthew Henderson, Sr., Washington, D.C., for Hirsh.

Marva Jones Brooks, Joe M. Harris, Bruce P. Johnson, Michael L. Smith, Alan I. Begner, Robin Schurr Phillips, Atlanta, for City of Atlanta.

Mitchell Williams, Jay Alan Sekulow, Atlanta, for Williams.

BENHAM, Justice.

The City of Atlanta, having declared the actions of certain protestors to be a public nuisance, sought and was granted an injunction against Operation Rescue, several named individuals, and Jane and John Doe, described as others acting in concert with any of the named defendants in the complained of conduct. Contending that aspects of the injunction violate their First Amendment right of free speech, appellant Hirsh, a named defendant, and appellant Williams, who asserted he was a "John Doe," appeal from the entry of certain portions of the injunction. ¹

At the hearing on the injunction, the city presented evidence that appellant Hirsh and another named defendant informed the Atlanta city police in July 1988 of their intention to blockade a different facility providing abortions within the city limits each day of the Democratic National Convention. Neither the police nor the targeted facility was ever given prior notice of the site or the time of the defendants' actions. From July 19--September 22, 1988, police encountered the defendants and their followers 22 times at five different locations. The defendants' primary method of operation was to assemble a large group of people at a designated location in the early morning hours and transport the massed group to a certain facility within the city. Upon arrival at their destination, the group trespassed on private property to blockade the means of ingress to and egress from the targeted building by locking arms and sitting and lying down. Emergency entrances, as well as entrances to the clinics and the administrative areas, were blockaded, trapping persons within the building as well as denying access to those physicians, staff, and clients who wished to enter. The protestors refused to leave when ordered to do so by authorized agents of the property owner and by police. When denied access to the private property, the group blocked the public right of way. When police barricades were in place, protestors crawled under the barricades separating them from the targeted facility. When placed under arrest, the group members refused to accompany police voluntarily and went limp, thereby forcing police officers to carry or drag them to police vehicles. Until the protestors were removed by arresting officers, the targeted facility was, in effect, shut down. The executive director of one health center testified that her facility had been the target of Operation Rescue activity over 100 times during the 20-month period from July 1988 to the date of the hearing, March 22, 1990.

Upon the arrival of an automobile at a targeted facility, protestors surrounded the car, making it difficult for anyone to exit the vehicle. Upon emerging from a car, a patient was swarmed, became the target of verbal epithets, was photographed by the protestors, and was forced to go through the crushing crowd of protestors in order to enter the facility. On at least one occasion, a patient had to be lifted bodily by police over the protestors in order to gain access to the blockaded facility. A clinic executive director testified that the protestors' activities caused patients much anxiety, that those who did gain access were visibly upset and some emotionally distraught. Patients' blood pressure and pulse rates were elevated by the impediments they had had to overcome to gain entry, subjecting the women to additional health risk should an abortion, performed under local anesthesia, be done while the patient was in such a shaken state. Thus, additional time had to elapse in order for a patient to calm down sufficiently to permit medical care to begin. However, the sounds of the protestors could be heard in the clinic's waiting, counseling, procedure, and recovery rooms, disrupting physicians and staff in all aspects of medical care-giving, as well as being a further impediment to a patient's relaxed state.

The director of the city's detention facilities testified that arrests had been made at protests the two days immediately preceding the hearing, bringing the total number of such arrests to approximately 1320. The sheer number of persons arrested had forced the city to create temporary jail facilities and to cancel inmate visitation and recreation. Because many protestors refused to give correct names during the booking process, the average length of stay of each protestor in the jail increased to 5.21 days, with a cost to the city of $272,076 to house the incarcerated protestors.

The city introduced into evidence literature published under the name of Operation Rescue urging people to come to Atlanta to join in the protests in July 1988, October 1988, December 1988, and December 1989. There was evidence that an Operation Rescue recorded telephone message encouraged callers to picket a targeted facility, the homes of an attending physician and a prosecuting solicitor, and informed them of rallies at which they would be indoctrinated into the methods to be used during protests at the facilities.

1. The Atlanta city charter empowered the city to define a nuisance and provide for its abatement. 1973 Ga. L., p. 2188, § 1-102(b), Appendix I, p. 2252(31). In September 1988, the Atlanta City Council passed a resolution, finding that defendants' actions, designed to and having had the effect of endangering the public security, health, safety, and welfare of the City and its citizens, constituted a public nuisance, and authorized the City Attorney to seek injunctive relief against the defendants. ²

2. Appellants contend that the portions of the injunction which they have singled out (see footnote 1, supra) impermissibly infringe upon their First Amendment right to free speech. ³ Since public streets and sidewalks have historically been considered "public forums,"

the government's ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." [Cits.] United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983).

a) "Content neutral" speech regulations are those that "are justified without reference to the content of the regulated speech." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976). Inasmuch as the injunction applies irrespective of the subject matter to be communicated and does not single out a particular content of speech for better or worse treatment (see id.), it is content-neutral. See also N.Y. NOW v. Terry, 886 F.2d 1339, 1363 (2d Cir.1989); Portland Fem. Women's H. Ctr. v. Advocates for Life, 859 F.2d 681, 686 (9th Cir.1988).

b) It cannot be questioned that the city government has a significant interest in maintaining public safety by being able to control traffic on urban streets and sidewalks as well as being able to disperse its law enforcement personnel throughout the city instead of having to assign large numbers of officers to surround potential targets of the defendants' activities; a significant interest in the continued orderly operation of its pretrial detention facility; a significant interest in the right of citizens to obtain desired medical services; and a significant interest in the continued operation of lawful, licensed businesses and medical facilities. The trial court was authorized to conclude that the pre-injunction actions of the defendants endangered all of those significant governmental interests.

c) In order to meet the requirement that the restrictions be narrowly tailored to serve the significant government interests and leave open ample alternative channels of communication, the ban in Paragraph 3 on demonstrations, pickets, or protests within 50 feet of the property line of a facility providing abortions must be read in conjunction with Paragraph 7 of the injunction, which permits certain demonstrating, picketing, and protesting "in the vicinity of" any facility at which abortions are performed if the number of protestors is limited to 20 and they remain far enough apart from each other so as not to block or impede entry to or exit from the facility, its driveway, and parking lot, and no sign is used to effect such an impediment. Thus, the injunction restricts the defendants' prior behavior by providing a "free zone" in which an overwhelming number of protestors cannot impede the safe provision of medical care by harassing, intimidating, and assaulting facility physicians, staff, and clients. See Portland Fem. Women's H. Ctr. v. Advocates for Life, supra, at 686. Yet, at the same time, "ample alternative channels of communication" are left open by permitting 20 demonstrators "in the vicinity of," i.e., within the 50-foot area. The 20 demonstrators must, of course, abide by the other portions of the injunction regulating noise and behavior.

Paragraph 5 of the injunction is spatially limited to the area within 50 feet of the facility's property line and an area within 50 feet of a parking lot used by facility staff and patients. It is patterned after a Boulder, Colorado ordinance ( § 5-3-10), and reinforces the 50-foot "free zone" established in Paragraph 3 while creating a restriction beyond the 50-foot area if the facility's parking lot is located beyond the...