653 F.3d 835 (9th Cir. 2011), 09-16753, Hoye v. City of Oakland

Docket Nº:09-16753.
Citation:653 F.3d 835
Opinion Judge:BERZON, Circuit Judge:
Party Name:Walter B. HOYE, II, Plaintiff-Appellant, v. CITY OF OAKLAND, Defendant-Appellee.
Attorney:Michael Millen, Law Offices of Michael Millen, Los Gatos, CA; Catherine W. Short (argued), Life Legal Defense Foundation, Ojai, CA, for Plaintiff-Appellant Walter B. Hoye, II. Angela L. Padilla, Sarah C. Marriott, Benjamin C. Geiger, and Katherine C. Lubin, Greg J. Richardson (argued), Orrick, He...
Judge Panel:Before: STEPHEN REINHARDT and MARSHA S. BERZON, Circuit Judges, and LOUIS H. POLLAK, Senior District Judge.[*]
Case Date:July 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 835

653 F.3d 835 (9th Cir. 2011)

Walter B. HOYE, II, Plaintiff-Appellant,


CITY OF OAKLAND, Defendant-Appellee.

No. 09-16753.

United States Court of Appeals, Ninth Circuit.

July 28, 2011

Argued and Submitted Oct. 8, 2010.

Page 836

[Copyrighted Material Omitted]

Page 837

[Copyrighted Material Omitted]

Page 838

Michael Millen, Law Offices of Michael Millen, Los Gatos, CA; Catherine W. Short (argued), Life Legal Defense Foundation, Ojai, CA, for Plaintiff-Appellant Walter B. Hoye, II.

Angela L. Padilla, Sarah C. Marriott, Benjamin C. Geiger, and Katherine C. Lubin, Greg J. Richardson (argued), Orrick, Herrington & Sutcliff LLP, San Francisco, CA; John Russo and Vicki Laden, Oakland City Attorney's Office, Oakland, CA, for Defendant-Appellee City of Oakland.

Jay Alan Sekulow, Stuart J. Roth, Walter M. Weber, American Center for Law and Justice, Washington, D.C. for Amicus Curiae American Center for Law and Justice.

J. Cacilia Kim and Vicky L. Barker, California Women's Law Center, Los Angeles, CA; Alexandra A. Bodnar, Casey J.T. McCoy, Squire, Sanders & Dempsey L.L.P., Los Angeles, CA, for Amici Curiae California Women's Law Center, The California Black Women's Health Project, The Connecticut Women's Education and Legal Fund, The Feminist Majority Foundation, Equal Rights Advocates, Legal Momentum, Legal Voice, The California National Organization For Women, Physicians for Social Responsibility-Los Angeles, The Southwest Women's Law Center, the Women's Law Project, and The Women's Law Center of Maryland.

Page 839

Janet Crepps & Jennifer Mondino, Center for Reproductive Rights, New York, NY, for Amici Curiae Abortion Care Network, American College of Obstetricians and Gynecologists, American Medical Women's Association, American Nurses Association, Center for Reproductive Rights, Medical Students for Choice, National Abortion Federation, National Family Planning and Reproductive Health Association, and Physicians for Reproductive Choice and Health.

Beth H. Parker & Rachel L. Chanin, Arnold & Porter L.L.P., San Francisco, CA, for Amici Curiae Planned Parenthood Affiliates of California, The California Medical Association, Alameda-Contra Costa Medical Association, Planned Parenthood Golden Gate, Planned Parenthood Los Angeles, Planned ParenthoodMar Monte, Planned Parenthood/Orange and San Bernardino Counties, Planned Parenthood of Santa Barbara, Ventura, & San Luis Obispo Counties, and Planned Parenthood: Shasta-Diablo.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:07-cv-06411-CRB.

Before: STEPHEN REINHARDT and MARSHA S. BERZON, Circuit Judges, and LOUIS H. POLLAK, Senior District Judge.[*]


BERZON, Circuit Judge:

Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert. These instances of public persuasion constitute the lifeblood of a self-governing people's liberty, and so even when the beliefs propagated seem to some the " rankest error" that " naturally would offend" any listener, our founding charter deems such encounters " in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U.S. 296, 309-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). This case calls on us to apply that principle.

* * *

Walter Hoye, a minister, is a so-called " sidewalk counselor." He regularly stands outside a reproductive health clinic in the City of Oakland, seeking to engage women in what he calls a " friendly conversation" to dissuade them from having an abortion.

Concerned about disruptive anti-abortion protests outside clinics, the Oakland City Council enacted a so-called bubble ordinance (the " Ordinance" ), its name derived from the 100-foot metaphorical " bubble" the Ordinance creates around the entrances to reproductive health clinics. Within such zones, the 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. The Ordinance is largely modeled after the Colorado statute

Page 840

held constitutional in Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).1

Hoye was convicted of two separate violations of the Ordinance. (His convictions were reversed on procedural grounds during the pendency of this appeal.) He now challenges the Ordinance in this § 1983 action, contending that the Ordinance infringes upon the freedom of speech guaranteed by the First Amendment to the United States Constitution. Hoye also argues that the Ordinance violates the federal constitution's Due Process Clause, as well as the state and federal guarantees of equal protection of the laws. A theme central to his challenges is his contention that Oakland does not enforce the Ordinance evenhandedly, as it has a policy of not enforcing the Ordinance against volunteers who engage in pro-abortion speech outside reproductive health clinics. The District Court granted Oakland's motion for summary judgment on all of Hoye's claims, and Hoye appealed. We now affirm in part, reverse in part, and remand for the determination of appropriate relief.



Several reproductive healthcare clinics are located within the City of Oakland (the " City" ). For decades, anti-abortion activists have gathered outside them, trying to dissuade patients from seeking abortions and employees from performing them. Their insistent importuning has caused patients and employees to feel harassed, even intimidated. Also, in the past, protestors have blocked entrances to clinics, forcing patients and staff to climb through windows and fire escapes. Protestors have also sometimes mobbed patients' vehicles as they pull up to the clinic, preventing patients from stepping out.

Since approximately early 2006, Walter Hoye has stood outside the Family Planning Specialists clinic in Oakland, seeking to discourage women entering the clinic from having an abortion. Hoye's stated goal is " to have a personal, one-on-one conversation with each woman concerning her individual situation and what is causing her to consider abortion." He also often holds a sign proclaiming, " Jesus loves you and your baby. Let us help." He says that he has " never called a woman a baby killer or murderer or told her she would rot in hell, or expressed any judgment like that." 2

Hoye reports that " [f]or most of the time I have been going, there has been only two or three other pro-life people there." He also states that he has never seen a " pro-life counselor block patients from getting to the [c]linic" ; instead, he says, " We consciously try to space ourselves out on the sidewalk ... [and] make sure there is room to pass." Video recordings of Hoye's activities, although incomplete, corroborate Hoye's account of his sidewalk counseling.

For a number of years, " escorts" have helped patients approaching reproductive health clinics to navigate their way into the building when anti-abortion protestors are present. Hoye calls the escorts " pro-abortion activists." Barbara Hoke, an escort, provides a slightly different account: According to her, escorts are volunteers who, although not " legally affiliated" with the clinics, wait outside them, often wearing bright orange vests bearing the name of the clinic in front of which they are volunteering.

Page 841

" The escort's job," in Hoke's words, " is to create a clear pathway to the clinic so that patients seeking to enter the clinic may do so without being intimidated, harassed, or feeling physically threatened."

Hoye charges that " [t]hese activist escorts tell women not to listen to [him], that he is only there to harass [them], that [they] will only be safe with the escorts, and[that they should] not ... take his literature or information because it is inaccurate." Hoye also says that escorts, " with their bodies, form barriers" to prevent him from approaching patients, make noise (such as " lalalala" ) to drown out Hoye, and have " assign[ed] some of their number to stand in front of [Hoye] with blank pieces of cardboard, thus blocking women from seeing [Hoye's] sign." The City, by and large, does not contest Hoye's account of the escorts' activities. Also, at Hoye's criminal trial, Hoke to a degree confirmed that account, testifying that she thought it important for escorts " to block a message that is inappropriate, that is meant to harm, is meant to intimidate, and meant to prevent a woman from just the quiet privacy of a moment in her life that is no one else's business." 3

On December 18, 2007, the Oakland City Council passed Ordinance No. 12849. Hoye filed the complaint in this case the next day, asking for a temporary restraining order. At a telephonic hearing on the request for a TRO, the District Court expressed reservations about the Ordinance's constitutionality and strongly suggested that the City amend it. The City, acquiescing, adopted an amended ordinance, Ordinance No. 12860, on February 5, 2008.


To continue reading