2nd Circuit Flags ‘True Threats’ in NYC Abortion Clinic Protests

MANHATTAN (CN) — The divided Second Circuit breathed new life Wednesday into harassment allegations against anti-abortion protesters who used tactics that could violate federal and local laws.

Every Saturday morning since 2012, the protesters have gathered outside Choices Medical Clinic in Jamaica, Queens. Though they come on their own, Wednesday’s 119-page majority opinion notes that all but one is affiliated with either the Church at the Rock or Grace Baptist Church.

Former New York Attorney General Eric Schneiderman initiated the case against them in 2017, following a yearlong investigation that uncovered protest tactics like slow-walking in front of clinic visitors, thus prolonging these encounters; obstructing the building entrance with signs; and tag-teaming, or tapping another demonstrator to speak with a target after she asked to be left alone. 

In 2018, a Brooklyn federal judge cleared the demonstrators of harassment and denied the state an injunction, but U.S. Circuit Judge Rosemary Pooler wrote for the majority Wednesday that the evidence is enough to show those maneuvers may violate federal, state and city laws.

Pooler pointed to the Freedom of Access to Clinic Entrances Act, which forbids "delaying patients without requiring a significantly long delay, crowding patients directly or indirectly with bodies or signs, and touching or leaning into the windows and doors of cars exiting a facility.”

“Courts face unique difficulties when conflicting constitutional rights are at stake,” the Clinton-appointed Pooler added. “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.”

As some of the protest speech in this case constitutes a true threat, Pooler said it is not protected under the First Amendment. 

And under New York City law, Pooler wrote, "a defendant’s intent to harass, annoy, or alarm may be inferred from the conduct of following a patient or companion at a reproductive health care facility and making multiple attempts to engage that individual, even for a short time, when the individual explicitly or implicitly requested to be left alone." 

Chief U.S. Circuit Judge Debra Ann Livingston dissented in part. 

“I can discern no error, much less an abuse of discretion,” the George W. Bush appointee wrote, in the District Court’s “painstaking factual determinations, nor in the careful legal analysis underlying them.” 

Livingston also took issue with the majority’s finding that the state is able to sue under New York City anti-harassment statutes. 

The remaining judge on the panel, U.S. Circuit Judge Guido Calabresi, also weighed in with his own concurring opinion. “I write separately because, frankly, I do not understand the partial dissent’s position” with respect to city law, the Clinton appointee wrote. 

Concluding that the state can’t sue under city law “to me, raises an obvious problem, one that goes to federal-state relations,” Calabrese wrote. 

Attorney Roger Gannam represents defendant Scott Fitchett Jr., who was not part of the attorney general’s appeal. 

He called the circuit court decision disappointing — and a potential encroachment on free speech. 

“It undoes what we thought was a well-written and well-reasoned order by the district court,” Gannam, from Liberty Council, said in a phone interview. 

Gannam interprets the circuit decision as expanding liability under federal law, making it so if any patient approaching the clinic has to divert their path forward “by even a few feet, for one second, you can be held liable for a violation,”

“It seems like it does not adequately accommodate the First Amendment.” 

As to the protesters' cross-appeal, Wednesday’s ruling affirms U.S. District Judge Carol Bagley Amon’s finding that federal statutes are constitutional, and that the city's follow-and-harass and clinic interference provisions are not too vague.

The court today also affirmed that one defendant engaged in physical obstruction through the slow-walking tactic. 

In her 103-page ruling, now partially vacated, Amon had warned protesters that they were cutting it “close to crossing the line from activity protected by the First Amendment to conduct prohibited by [the New York City Clinic Access Act].” 

“A word of caution — this decision should not embolden the defendants to engage in more aggressive conduct,” Amon wrote in July 2018. “Engaging in concerted activity that suggests an intent to annoy rather than to persuade not only violates the law, but also would seem to be contrary to defendants’ stated objectives. Voluntarily discontinuing the practice of speaking to patients who have affirmatively asked to be left alone not only would evidence the defendants’ good will, but also would lessen the likelihood of future litigation directed toward their protest activities.” 

New York Attorney General Letitia James said in an email that Wednesday’s decision “clearly recognizes that federal, state, and city statutes ensure meaningful access to abortion clinics.”

“Every woman has the constitutional right to access an abortion and today’s order makes clear that everyone must be granted access to these facilities without obstruction and harassment,” James said through a spokesperson. “The court has given us another opportunity to make our case and we will not waver in our fight to protect women’s reproductive freedoms.”

The case will proceed in District Court, where Judge Amon is expected to reassess the witnesses’ video and photo evidence, as well as the previous injunction decision. 

Follow @NinaPullano

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