Caught between California and vaccine protesters

NICK EICHER, HOST: Coming up next on The World and Everything in It: free speech in the Golden State.

California Gov. Gavin Newsom signed Senate Bill 742 into law this month.

What Newsom says it’s supposed to do is protect people seeking COVID-19 vaccines against harassment by vaccine protesters. Specifically, it suspends certain free-speech activities when a speaker is too close to someone near the entrance of a vaccination site.

But the law is also threatening the outreach efforts of some pro-life ministries to women considering abortions.

MYRNA BROWN, HOST: Joining us once again to fill us in on what’s happening here is Steve West. He’s an attorney and writes about religious liberty issues for WORLD Digital. Good morning, Steve!

STEVE WEST, REPORTER: Good morning, Myrna.

BROWN: Well, Steve, what does this new law say exactly with regard to speaking to people near vaccination sites?

WEST: Well, Myrna, the impetus for the law was apparently concern about harassment of those entering vaccination sites by anti-vaccination protesters—sites which are not only doctor’s offices but drugstores, retail stores, all kinds of places where these vaccinations are offered. So it’s a law which casts a wide net and essentially, it draws a big circle around a vaccination site, making it a crime to knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site, if they’re trying to go in or go out. Or also to approach any occupied motor vehicle when they’re seeking to go in or to go out of a vaccination site. And it says you can’t obstruct, injure, harass, intimidate, or interfere with that person or vehicle occupant. So, in effect, it operates like a 130 foot bubble for all kinds of speech.

BROWN: But why would that prevent ministries from speaking to women near abortion facilities?

WEST: Well, in the case of Right to Life of Central California, which is in Fresno, their outreach center is located next door to the Planned Parenthood abortion center, which is also a vaccination site, though it’s not for the COVID vaccines. Right to Life employees and volunteers regularly stand on the sidewalk in front of their building and attempt to engage women heading to Planned Parenthood for abortions. They try to engage them in conversations, offering alternatives. But this law would even bar them standing in front of their very own building. So, this is a speech ban that catches up not only anti-vaccination protesters but all other types of speech, including pro-life speech. Interestingly enough, the law excludes lawful picketing as a result of a labor dispute, which must be a testimony to the power of unions.

Also worth pointing out here is that harassment is very broadly defined. It includes handing someone a leaflet, any attempt to educate them, or any attempt to counsel them—so anything intended to help a person consider other options is banned.

BROWN: Okay, so Alliance Defending Freedom and others have filed suit challenging this law, correct?

WEST: That’s right, Myrna. Alliance Defending Freedom attorneys representing Right to Life filed a complaint in federal court last Wednesday arguing the ban violates First Amendment guarantees of free speech and religious freedom. They are asking the court to block the ban.

And then in a separate case earlier, three pro-life activists affiliated with the California-based Life Legal Defense Foundation also filed a federal suit against the law. In that case, the court is set to hear a motion to temporarily block the measure tomorrow.

BROWN: You say that these so-called “bubble zone” laws have a checkered history in court. Expand on that if you would.

WEST: Oh, yes, this has gone on for over two decades. So, over 20 years ago, the Supreme Court upheld a Colorado law that imposed an 8-foot buffer around abortion facilities. And they said it “allows the speaker to communicate at a ‘normal conversational distance.’” Well, that’s one thing. But then in 2014, the justices struck down a 35-foot buffer around abortion centers in Massachusetts, concluding that “if all that women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.” We might surmise then that 8 feet is ok, 35 feet not.

Well, since then, lower courts continue to wrestle with zones banning speech outside abortion centers. In October of 2019 there were two separate rulings involving a 15-foot buffer in Pittsburgh and then another, a 20-foot buffer in Harrisburg, Pennsylvania. But the judges in that case reasoned the zones did not apply to sidewalk counselors who engage in “peaceful one-on-one conversations on any topic or conducted for any purpose at a normal conversational volume or distance.”

So, the bottom line is that some reasonable time, place, and manner restrictions are OK, but the kind of restrictions placed on speech by Califirnia in this law are way out of bounds.

BROWN: Okay, so where does the case regarding the California law go from here?

WEST: I don't think courts should have a difficult time with this law. I suspect judges will pretty quickly enter orders blocking implementation of the law—perhaps even this week. Appeals may follow, or legislators may decide to have another look at what is clearly an unconstitutional law—amend it, or better yet, rescind it. Someone needs to pop this bubble.

BROWN: Steve West writes about religious liberties for WORLD Digital. You can read his work at WNG.org. You can also subscribe to his free weekly newsletter on First Amendment issues, Liberties. Steve, always good to have you on. Thank you!

WEST: Thank you so much, Myrna.

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