Legal Docket: Bubbles, buffers, and free speech

MYRNA BROWN, HOST: It’s Monday morning, August 7th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket, summer edition. While the Supreme Court is in recess, we’ll hear about litigation pending in the lower courts.

Today, disputes about buffer zones, bubble zones, free speech and pro-life counseling.

We’ll start in the midwest, in Illinois, where abortion is legal. Many surrounding states banned abortions in some form after the Dobbs decision struck down Roe versus Wade.

The college town of Carbondale, Illinois is in the southern part of the state, closer to Peducah, Kentucky than to Chicago. Population around 22,000. The flagship campus of Southern Illinois University is there. It enrolls thousands of young people each year.

BROWN: And that has attracted the attention of abortion businesses. The town didn’t even have an abortion facility until last fall. Now more are on the way… making Carbondale an abortion hub for the southeastern part of the United States.

Brian Westbrook directs the pro-life organization called Coalition Life. It seeks to save lives directly in front of abortion businesses.

WESTBROOK: Yeah, so… you know, just late last year, when these abortion facilities were welcomed with a red carpet into Carbondale. City Council were emailing back and forth about how this is going to be great for the hotel business and ….great for the economy. But we know that the vast majority of the women going there are from out of state. So our statistics show that over 80% of those traveling to Carbondale to get abortions are coming from Kentucky, Tennessee, Missouri, even down in Texas, are coming all the way up to Carbondale to get their abortions...

BROWN: So trained Coalition Life volunteers started to pray outside the building. They offered literature and alternatives to abortion. In short, they stood as a witness to the sanctity of human life.

But the city council passed an ordinance that prohibits these volunteers from approaching within 100 feet of the facility.

REICHARD: That’s when lawyers from Thomas More Society stepped in on behalf of Coalition Life.

Peter Breen is head of litigation. He gives some background to Carbondale’s ordinance: it creates a moving “bubble” around each person outside an abortion building that you can’t go, say, within 8 feet of a person to offer literature.

BREEN: They put one of these bubble zones in place and they copied it verbatim from the city of Chicago and the state of Colorado, both of which had been upheld in court, based on this year 2000 precedent from the Supreme Court. So that's what we're fighting. …The district court we don't believe can really help us too much. We've got to get it up on appeal to start reversing appellate precedent and then eventually Supreme Court precedent in order to get relief…the city has moved to dismiss, a very short motion. We filed a short response. We're waiting for the judge's decision any day, letting us go up on appeal.

REICHARD: I contacted the City of Carbondale for comment, but city attorney Jamie Turner declined, citing this pending litigation. Nothing unusual about that.

But the complaints against the city include violation of First Amendment free speech rights, 14th Amendment Due Process rights, and violation of some state laws.

I asked Breen why the Supreme Court decision in McCullen v Coakley from 2013 hadn’t resolved these disputes. That unanimous ruling struck down a Massachusetts law that created a 35-foot buffer zone around abortion buildings. The justices ruled the law kept people from engaging in precisely the transmission of ideas the First Amendment is meant to protect.

That case involved “buffer zones,” while the Carbondale case involves “bubble zones.”

BROWN: What’s the difference? Lawyer Breen:

BREEN: …it gets confusing because your eight foot bubble might be within 100 feet of an abortion clinic door. So there's a zone where these bubbles apply. But that's the difference really that a buffer zone just says nobody anywhere in here. Bubble zone says no, no, each person in there has a floating eight foot bubble. So the way around it, you don't say the bubble zone, you get around it by standing still, essentially. So if you're standing still you're okay. You can extend an arm but you can't move your body.

I mean, you sit there and go, in any other area of speech or the law courts would laugh a restriction like that out of court. But because of the abortion distortion, it was allowed back in 2000. But uniquely in 2022 in the Dobbs decision where the Supreme Court overturned Roe, they dropped a footnote and highlighted the fact that these bubble zone laws were a distortion of First Amendment principles. So they recognized it. The only problem is the Supreme Court has not yet overturned it.

BROWN: Breen emphasized the importance of the work of sidewalk counselors like Coalition Life:

BREEN: And, you know, just a very, very recently, the state of Illinois finally released…its 2021 abortion numbers: over 51,000 abortions in Illinois in 2021. So that's during the pandemic. And that number, historically, Illinois had been roughly about 40,000 abortions. And over the course of two years, they got up to 51,000. Again, this is pre Dobbs and it's during the pandemic. So 25% increase in two years. I shudder to think what the numbers from 2022 and now 2023 where every state surrounding Illinois has better abortion laws on the books. We’re thinking it could be at 70 or 80,000 abortions so almost double from our historical rate in Illinois very soon. So again, the work of …Coalition Life is utterly vital to making sure folks have a real choice and not being coerced. I mean imagine traveling you know oftentimes being brought maybe by a non supportive partner or parent, you know, you're you're scared, you're far from home and really the only friend you may have is one of Coalition Life sidewalk counselors standing there just offer a kind word and an alternative.

REICHARD: Before we leave Illinois, some good news came this past Thursday. Different issue, but still in the pro-life arena.

Governor J.B. Pritzker in late July signed a law that labels speech by crisis pregnancy centers as “deceptive business practice.” That language did not apply to abortion businesses. Thomas More Society sought to halt the law in court, and Peter Breen argued it violates the free speech rights of pregnancy centers.

A federal judge then ordered a preliminary injunction that stops enforcement of the law for now, pending further litigation. In Judge Iain Johnston’s ruling, he said the law violated the First Amendment and later wrote: “Justice Scalia once said that he wished all federal judges were given a stamp that read ‘stupid but constitutional.’ SB 1909 is both stupid and very likely unconstitutional.”

BROWN: He didn’t mince words there, did he?

Alright, now to Florida, with a similar dispute to Carbondale’s…this time over a five-foot buffer zone on either side of a driveway of an abortion facility in Clearwater. Thomas More Society filed a complaint in federal court in June over that.

When we asked for comment from the city attorney, he said yes. A pleasant surprise.

REICHARD: Luke Lirot is counsel for the city of Clearwater defending the five-foot buffer zone ordinance. He told me the abortion building is on a busy, two lane road. Cars can still come and go, but facility personnel complained that the pro-life counselors were impeding traffic.

LIROT: Anywhere else on the property if someone wants to hand out a leaflet or have a compassionate conversation with someone about their various options… then they’re free to do that. It’s just the driveway that they can’t really facilitate. So it’s a very unique ordinance. And I think that the city worked hard to figure out the least restrictive method they could use to try to make this situation safer for everybody. And obviously the folks that are the plaintiffs in the case feel that it does impinge their First Amendment rights.

REICHARD: Lirot told me he’s seen police reports and body cam footage showing what he considers to be confrontational activity. Police told him of screeching brakes, breach of the peace, that sort of thing.

LIROT: And it applies across the board. It doesn’t apply just to those people wanting to hand out leaflets, it applies to the people that may want to receive a leaflet.

REICHARD: I asked him the same question I asked Breen from Thomas More Society: how is this different from the buffer zone in Massachusetts that the Supreme Court struck down in 2013, the one with the 35 foot buffer zone?

LIROT: You can’t communicate with anybody from 35 feet away in a meaningful way unless you got a megaphone. So five feet from our perspective certainly my clients’ perspective is not a whole lot different than people having a conversation at a dinner table….five feet seems to be much more narrowly tailored. And again it doesn’t apply to the whole property. It applies only to the driveway.

BROWN: But Breen for the pro-lifers explained there’s still a problem. Clinic personnel can be in that five foot zone; pro-life counselors cannot. He argues that is unconstitutional viewpoint discrimination, and that violates the free speech rights of the pro-lifers.

Lirot for the city makes a distinction:

LIROT: Well, I think this is more conduct related than viewpoint related. Obviously, assisting someone to get in and out of a vehicle, you know, people that are there for any kind of medical type of treatment would be certainly welcome to have the assistance that they would like. I don’t think it does stop anybody from talking to those people that would otherwise be entering that area. So if someone wanted to try to in some way counsel someone that would be assisted by the other people from a few feet away, nothing stops them from doing that.

REICHARD: As for lawyer Breen and the pro-life volunteers, the goal is a uniform rule, one in which everyone understands the rules to protect freedom of speech.

BREEN: …we want to establish good case law for the whole country. Because these sorts of speech restrictive laws would never be, just it wouldn't be thinkable in any other area of life. So we want to establish good laws so that other municipalities and states that may be more pro abortion, don't even think about doing this anymore. We’re playing Whack a Mole with this, with these various laws. We'd rather that stop, you know, we want to get off to the next thing because we think these are all flagrantly unconstitutional. Violation of your free speech rights under the First Amendment.

REICHARD: Both of these cases are in early stages of litigation. We’ll keep an ear out for what happens.

And that’s this week’s Legal Docket!

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