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Anti-abortion group gets green light to protest outside California vaccination sites

A federal judge found a portion of a new California law banning protests near vaccination sites appears to be a content-based restriction on free speech.

FRESNO, Calif. (CN) — Delivering a partial win for an anti-abortion group seeking to picket outside vaccination centers, a federal judge has temporarily barred California from enforcing portions of a new law meant to stem anti-vaccination protests.  

U.S District Judge Dale Drozd took issue with the law’s broad definition of harassment and found it chills the free speech of groups attempting to hand out pamphlets or talk with people on sidewalks outside of vaccination clinics. Drozd said he was swayed by Fresno-based Right to Life of Central California’s opening argument that the law, Senate Bill 742, is a content-based restriction on speech and overly broad.

“Even assuming that the state’s interest in ensuring Californians ‘can obtain and access vaccinations’ is a compelling interest — an assumption this court would readily make with regard to access to Covid-19 vaccinations given this ongoing public health crisis and global pandemic — plaintiff has shown that it is likely to succeed in proving that SB 742 is not narrowly tailored to serve that interest,” Drozd wrote in a ruling issued Saturday.

Senate Bill 742 makes it a misdemeanor to approach anyone standing within 100 feet of the entrance or exit to a vaccination clinic with purpose of “obstructing, injuring, harassing, intimidating, or interfering with” the person. The bill was inspired by a widely publicized protest this past winter that caused a temporary shutdown of a Covid-19 vaccination site at Dodger Stadium in Los Angeles.

Supporters said the legislation and its required buffer zone are necessary to keep activists from intimidating people waiting to get the life-saving vaccine. The law extends to all vaccination sites and not just those offering Covid-19 shots, meaning the buffer zones would exist at hospitals, drug stores and women’s reproductive health clinics like Planned Parenthood.

“Health care workers administering vaccines and saving lives need local officials to have SB 742 to keep them and their patients safe from extremists who obstruct and threaten people with violence and loss of privacy for participating in Covid-19 vaccination clinics,” said the bill’s author, state Sen. Richard Pan, D-Sacramento, in October.  

During the legislative process a wide variety of critics and even the bill’s legislative analysis warned SB 742 implicated the First Amendment and was ripe for a legal challenge. Nonetheless it was overwhelmingly approved by the Democratic-controlled Legislature and signed into law last month by Governor Gavin Newsom.

Making good on the prediction, the anti-abortion group responded with its pre-enforcement free speech lawsuit just five days later, saying SB 742 was preventing it from carrying out its charge of providing support and education to women considering abortion.

The relative oddity of an anti-abortion group suing for the ability to talk with people waiting for vaccines is explained by the fact the plaintiff and Planned Parenthood are neighbors.    

According to the complaint, Right of Life’s outreach center is adjacent to a Planned Parenthood clinic which administers human papillomavirus vaccines. Thus, the group has been barred from issuing pamphlets and advocating on public walkways outside of Planned Parenthood as it’s done routinely in the past. The group says the new 30-foot buffer zone makes it nearly impossible to have normal conversations with those passing by its own private property, and that it had to suspend its annual 40 Days of Life promotion.

“If not for SB 742, Right to Life and its agents, including its staff and volunteers, would freely engage in protected speech, without hesitancy or fear of government punishment,” the group argued in court papers.

Along with free speech claims, the group says the buffer zones exceed precedent set by the U.S. Supreme Court, noting the high court has struck down zones as short as 15 feet. It also highlighted that while SB 742 attempts to bar anti-vaccination protests, it exempts “lawful picketing arising out of a labor dispute.”

In the 28-page ruling, Drozd blasted the Legislature’s decision to include the labor clause and said plaintiff is “very likely” to succeed in proving SB 742 is content-based.

“SB 742 prohibits a person from knowingly approaching another person for the purpose of engaging in ‘oral protest’ — unless that oral protest is about a labor dispute,” wrote Drozd. “The statute also prohibits a person from knowingly approaching another person for the purpose of displaying a sign to that person — unless that sign is held by a picketer displaying speech about a labor dispute.”

The Obama appointee ultimately granted in part the group’s temporary restraining order and enjoined the state from enforcing SB 742’s prohibition on “harassing.” The order leaves in place the obstructing, injuring, intimidating or interfering language and Drozd gave the parties two weeks to submit a briefing schedule for the pending preliminary injunction motion.  

Plaintiff’s attorneys at Alliance Defending Freedom applauded Drozd’s decision, saying it would allow volunteers to continue their “critical mission” of providing women in the Central Valley with free “life-giving services.”

“Free speech won the day not just for our client, Right to Life, but for every other speaker in California,” said alliance attorney Denise Harle in a statement. “The court rightly acknowledged SB 742’s double standard in restricting pro-life outreach while permitting other types of speech, such as picketing about a labor dispute.”

The office for the lone defendant, California Attorney General Rob Bonta, tried to put a positive spin on the ruling.

"The court issued a narrow injunction against SB 742’s “harassment” prohibition, leaving in place the law’s remaining prohibitions against obstructing, injuring, intimidating, or interfering," Bonta's office said in an email. "The attorney general will continue to defend the law and work to ensure that any Californian who would like to be vaccinated is able to obtain their Covid-19 vaccine without intimidation."

The bill’s author cast the ruling in a positive light as well, noting Drozd’s overall support for “availability and access” to Covid-19 vaccines.

“The judge ultimately ruled against anti-vaccine extremists who attempt to obstruct and interfere with vaccination delivery and recognized that critical provisions of SB 742 did not interfere with First Amendment rights,” Pan said in an email.

Drozd was extremely critical of the arguments brought by Bonta’s office and signaled it will continue to have a tough time defending the new law as the case advances in the Eastern District of California.

“At a minimum, defendant’s shifting and morphing arguments demonstrate that SB 742 is so vague that it is conducive to different and conflicting interpretations on what conduct is even prohibited by its terms,” Drozd wrote.

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