Edwards v. City of Santa Barbara
| Decision Date | 14 March 1995 |
| Docket Number | No. CV 94-2243 RG (JRx).,CV 94-2243 RG (JRx). |
| Court | U.S. District Court — Central District of California |
| Parties | Vickie L. EDWARDS, et al., Plaintiffs, v. CITY OF SANTA BARBARA, et al., Defendants. |
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Andrew W. Zepeda, Beverly Hills, CA, Jay Alan Sekulow, Washington, DC, Benjamin W. Bull, Nikolas T. Nikas, Phoenix, AZ, for plaintiffs.
Daniel J. Wallace, City Atty., Janet K. McGinnis, Asst. City Atty., Santa Barbara, CA, for defendants.
This matter came before the Court on Plaintiffs' renewed motion for a preliminary injunction and Defendants' motion for summary judgment. Plaintiffs' motion is GRANTED and Defendants' is DENIED.
In May of 1993, the City Council of defendant City of Santa Barbara ("the City") adopted an ordinance limiting protest activity outside medical clinics and places of worship ("the Ordinance"). The Ordinance was passed in the wake of complaints by individuals and organizations about the conduct of anti-abortion protestors. For instance, a representative of a local Planned Parenthood clinic complained that protestors were disrupting traffic, impeding access to the clinic, and confronting patients and staff members in a harassing fashion. See, e.g., Exhibits 103, 104 to Defendants' Opposition to Preliminary Injunction (letters to City Council members from Executive Director of Planned Parenthood of Santa Barbara, detailing incidents and complaints and requesting legislative response). There were also complaints that protestors had confronted abortion providers at their churches.
The Ordinance has two main provisions.1 Section 9.99.030 ("the Driveway Provision") prohibits all "demonstration activity" on or within eight feet of the driveway of a health care facility or place of worship.2 "Demonstration activity" is defined to include "all expressive or symbolic content, whether active or passive...." Ordinance at 9.99.010(D). Section 9.99.020 ("the Bubble Zone Provision")3 forbids a person from "impeding" or "hampering" access to a health care facility or place of worship by failing to withdraw to eight feet away from a person when the person so requests. This provision is effective in the "access area", which is the area within 100 feet of a health facility or place of worship. Ordinance at 9.99.010(A). Obviously, both provisions encompass activity on public sidewalks.
This action was brought by two anti-abortion "sidewalk counselors" who challenge the constitutionality of the Ordinance. Plaintiffs Vickie Edwards ("Edwards") and Kathleen Rose McCaulley ("McCaulley") claim that they seek, inter alia, to "engage in peaceful hand-to-hand leafletting, one-on-one counseling about abortion alternatives, and periodically hold signs with a pro-life, anti-abortion message." McCaulley Declaration at ¶ 4; Edwards Declaration at ¶ 4. Edwards and McCaulley want to conduct these activities outside of medical facilities providing abortion services within the City.
Both Edwards and McCaulley claim that the Ordinance chills and deters them from this planned expressive activity. Specifically, they claim that they are afraid to engage in any communicative activities within eight feet of a clinic driveway. Edwards Declaration at ¶¶ 12-13; McCaulley Declaration at ¶¶ 12-13. Edwards complains that the Bubble Zone Provision prevents her from conducting effective one-on-one counseling or leafletting, as the eight-foot zone makes it impossible to hand leaflets to people and forces her to speak at a volume that "prevents empathy and sometimes even causes stress." Second Edwards Declaration at ¶ 9-11. Edwards has been arrested for violation of the Driveway Provision, though the charges were dismissed. Fourth Edwards Declaration at ¶¶ 4-10.4
Plaintiffs brought the instant suit for injunctive relief against the City and members of the City Council, arguing that the Driveway and Bubble Zone Provisions violate the First Amendment to the United States Constitution. This Court denied a motion for a preliminary injunction against the Driveway Provision in an order dated May 24, 1994.5
Plaintiffs now move for a preliminary injunction against both provisions, presenting evidence of legislative history for the first time. Defendants move for summary judgment, arguing that the undisputed facts show that the Ordinance is constitutional.
Under F.R.C.P. 56, summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. F.R.C.P. 56(c). A party resisting summary judgment has the affirmative obligation to bring forward evidence "on which the jury could reasonably find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence will not suffice. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial'." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The Ninth Circuit's traditional test for determining whether to issue a preliminary injunction requires the moving party to demonstrate the following:
City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir.1985); Martin v. Int'l Olympic Comm., 740 F.2d 670, 674-75 (9th Cir.1984).
More recently, the Ninth Circuit has articulated an alternative test. Under this test, the moving party must demonstrate either:
Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991).
Therefore, for the purpose of plaintiffs' motion, this Court must evaluate whether plaintiffs have shown probable success on the merits and the possibility of irreparable harm.
This case presents a facial challenge to a time, place, and manner restriction of speech in a public forum. Therefore, the Court's First Amendment analysis will proceed in discrete and predictable stages. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753-54, 105 L.Ed.2d 661 (1989).
First, the Court must determine if the Ordinance is content neutral. If the Ordinance is not content neutral, it is presumptively invalid, and will only survive if the City can show that it is necessary to serve a compelling state interest, and narrowly tailored to meet that end. Simon & Schuster v. Crime Victims Bd., 502 U.S. 105, 114-18, 112 S.Ct. 501, 507-09, 116 L.Ed.2d 476, 486-488 (1991). If the Ordinance is content neutral, then it will stand if it is narrowly tailored to serve a significant government interest. Ward, 491 U.S. at 791, 109 S.Ct. at 2753-54, 105 L.Ed.2d at 675.
A restriction of First Amendment activity is narrowly tailored if it "targets and eliminates no more than the exact source of the `evil' it seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). This Court's determination of whether the Ordinance is narrowly tailored entails a constitutional overbreadth analysis of both the Bubble Zone and the Driveway provisions.
"Only a statute that is substantially overbroad may be invalidated on its face." New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Here, this Court must first determine whether the enactment of the Ordinance reaches a substantial amount of constitutionally protected conduct, Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362. Special scrutiny is called for in the case of a criminal ordinance such as this one. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948).
The first step in the First Amendment analysis of the Ordinance is the question of content neutrality. If the Ordinance is not content-neutral, the City must pass the nearly insurmountable barrier of presumptive invalidity. See Simon & Schuster, 502 U.S. at 114-17, 112 S.Ct. at 507-09, 116 L.Ed.2d at 486-487. If it is content-neutral, then it will pass must if it is "narrowly tailored to serve a significant government interest." See Ward, 491 U.S. at 791, 109 S.Ct. at 2753, 105 L.Ed.2d at 675; Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984).
Plaintiffs' arguments about content-neutrality may be separated into four discrete areas: the face of the statute; the legislative intent; neutrality of enforcement; and reference to the reaction of the audience.
As this Court found in its previous Order, the Ordinance is facially neutral. It does not single out any viewpoint or subject, but applies equally to all expressive activity within the proscribed areas.6
A facially neutral statute is still presumptively invalid if it is designed to suppress a particular viewpoint. "The government may not regulate expression based on hostility — or favoritism — towards the underlying message expressed." R.A.V. v. St. Paul, 505 U.S. ___, ___, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305, 320 (1992). However, it is important to distinguish an attempt to suppress a viewpoint from an attempt to deal with the effects of particular...
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