Published: October 19, 2011
“Leafleting from a stationary position”
Can Oakland forbid pro-lifers from extending an arm to hand out flyers?
A hearing is scheduled Friday in U.S. District Court in San Francisco in the ongoing legal battle between California pro-life champion Rev. Walter Hoye and the city of Oakland over the city’s enforcement of its so-called “bubble ordinance,” which was found unconstitutional earlier this year by a federal appeals court.
On July 28, a three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled unanimously that the way Oakland enforces its “bubble ordinance” outside abortion clinics was unconstitutional, calling it “the epitome of a content-based speech restriction.”
The appellate court sent the case back to U.S. District Court Judge Charles Breyer, ordering him to “craft a remedy” ensuring that the city of Oakland applies the ordinance “in an evenhanded, constitutional manner.”
In an Oct. 13 statement, Life Legal Defense Foundation, which represents Hoye, said it had filed a brief with Judge Breyer after he requested arguments from both sides “on another portion of the City’s enforcement policy, specifically, a restriction on leafleting from a stationary position.” A hearing is scheduled for Oct. 21.
“The City continues to maintain that a stationary speaker extending an arm to offer a leaflet without the recipient’s permission has committed a forbidden ‘approach’ under the ordinance,” said the LLDF statement. “In briefing the court, attorneys Mike Millen and Catherine Short, Legal Director for LLDF, reason that in light of the Supreme Court’s historic protection of the right to leaflet, the idea that the Court would countenance a prohibition on the very mechanism of leafleting, i.e., the proffer of a leaflet by extending an arm, is absurd.”
“The resolution of the question will no doubt come down to the district court’s interpretation of the word ‘approach,’” said LLDF.
“The fact that this law prohibits advancing toward a pedestrian on a public sidewalk to speak to him or her is offensive enough in a free society,” said LLDF president Dana Cody. “But to insist that a leafleter extending an arm is ‘advancing’ is laughable, unless of course the leafleter is Pastor Hoye, who was incarcerated under this ridiculous interpretation of the statute. However, LLDF predicts that the district court will reject the City’s attempt to expand the reach of its Ordinance beyond what the Supreme Court has indicated is permissible.”
The July appellate court ruling was not Hoye’s first legal victory in his fight against Oakland’s attempts to silence him. In 2010, the Appellate Division of the Alameda Superior Court overturned his criminal convictions on two counts of violating the city’s ‘bubble law’ and ordered a new trial. The district attorney later decided not to pursue the case and all charges were dropped.
Even though later vindicated, Hoye was still jailed following his arrest outside Family Planning Specialists Medical Group in Oakland on May 13, 2008. On March 20, 2009, Alameda Superior Court Judge Stuart Hing sentenced Hoye to 30 days in jail and fined him $1,130 for violating the ‘bubble law.’ Hoye served 18 days of the sentence before being released for “good behavior” and given credit for time served while in police custody.
