In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, (— F.3d —, 2008 WL 2599683, C.A.9 (Cal.), July 2, 2008), the United States Court of Appeals considered whether sheriff deputies violated the constitutional rights of individuals who drove around the perimeter of a middle school in a truck displaying pictures of aborted fetuses. The Court of Appeals concluded that the deputies violated the individuals’ First Amendment rights when they ordered them to leave the area around the middle school and also violated their Fourth Amendment rights by unreasonably detaining them at the scene for 75 minutes.
Facts
The Center for Bio-Ethical Reform (“Center”) is a non-profit organization who seeks to expose people to the reality of abortion “by displaying large, graphic photographs of first-term aborted fetuses on the sides of trucks.” In March 2003, Paul Kulas, a Center employee, and Thomas Padberg, a Center volunteer, drove a Center truck and security vehicle around the perimeter of Dodson Middle School (“School”) in Rancho Palos Verdes, California. The two men arrived about thirty minutes before classes were to begin and they drove the vehicles on public streets around the perimeter of School. The graphic displays on the truck caused concern among School officials. The assistant principal identified traffic control as a primary concern. Some children stopped on the sidewalk and stared at the photographs on the truck. School faculty reported difficulty in getting children onto the campus. Some children expressed anger over the display on the truck and a school official had to disband a group of boys who planned to throw rocks at the truck.
School officials contacted the Sheriff’s Department approximately 20 minutes after Kulas and Padberg started driving around School. Two Deputy Sheriffs stopped Kulas and Padberg. Thirty minutes into the stop two more deputies arrived. The deputies then asked their supervisor to come to the scene “because they had never dealt with a comparable situation.” The supervisor arrived at the scene 15 to 20 minutes later. At some point, a deputy entered into the security vehicle to activate the switch to turn on the flashing red-and-amber lights on the vehicle. With Padberg’s permission, the deputy searched the vehicle for weapons.
At approximately 9:20 a.m., a deputy told Padberg and Kulas that they had to leave the area around School based on California Penal Code § 626.8. Kulas and Padberg promptly left the area.
Center, Kulas, and Padberg (collectively, “Center”) brought a lawsuit, under 42 U.S.C. § 1983, seeking nominal damages against the assistant principal and four Deputy Sheriffs. They also sought an injunction to restrain the Sheriff, the Sheriff’s Department, the four Deputy Sheriffs, and the assistant principal from enforcing § 626.8 against their abortion speech activities and to also declare § 626.8 unconstitutional as applied to their activities. The trial court granted summary judgment for the assistant principal, Sheriff, Sheriff’s Department and the deputies.
Analysis
Center asserted that the application of California Penal Code § 626.8 to its activity violated its First Amendment rights. The Court of Appeals agreed.
Section 626.8 provides that any person who comes on school grounds or a street or sidewalk adjacent to school grounds and “whose presence or acts interfere with the peaceful conduct of the activities of the school or disrupt the school or its pupils or school activities, is guilty of a misdemeanor if her or she” (1) remains at or near the school after being asked to leave by a sheriff or deputy sheriff, the school’s chief administrative official, or designated representative of that official, (2) reenters within seven days of being asked to leave, or (3) otherwise establishes “a continued pattern of unauthorized entry.” Section 626.8, however, specifically provides that it “shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly.”
The Court noted that Center sought to express its anti-abortion message on a public street, which is a traditional public forum. A government may impose reasonable “time, place, or manner” restrictions on speech in a public forum provided that the restrictions “are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant government interest, and . . . leave open ample alternative channels of communication of the information.” The question before the court was whether the application of § 626.8 to Center’s display of the photographs depicting aborted fetuses outside a school qualifies as a “content-neutral time, place or manner regulation.”
Although § 626.8’s language does not indicate an intent to restrict speech based on its content, this lack of restrictive purpose does not render its application to Center’s speech as content-neutral. “If the statute, as read by the police officers on the scene would allow or disallow speech depending on the reaction of the audience, then the ordinance would run afoul of . . . a First Amendment-based ban on the ‘heckler’s veto.'” The government cannot silence messages based on the fact that the messages may cause anger, discomfort, or fear among the listeners or viewers of the messages. Here, the disruptions caused by Center’s conduct arose from the students’ reactions to Center’s message. The United States Supreme Court has held that the reaction of listeners to speech “is not a content-neutral basis for regulation,” or “in other words, the First Amendment does not permit a heckler’s veto.” “If listeners react to speech based on its content and the government then ratifies that reaction by restricting speech in response to listeners’ objections, then the restriction is content-based.” The application of § 626.8 to Center’s conduct here would fall into the category of the heckler’s veto doctrine; Center’s speech was permitted until it was deemed disruptive based on the students’ reactions and then it was stopped.
The court recognized that this case involves special circumstances because the speech took place in the presence of children. It found, however, that there is “no precedent for a ‘minors’ exception to the prohibition on banning speech because of the listeners’ reaction to its content.” The court declined to create a special exception to the heckler’s veto doctrine where the listeners are children.
The court was also required to “address whether § 626.8 applies only where the manner, not the content, of speech near schools is distracting to listeners.” It concluded that the Supreme Court of California would “construe § 626.8 to apply only to interference or disruption caused by the manner of a person’s expressive conduct.” The statute expressly states that it shall not be utilized to impinge on rights of free speech and assembly. “[T]he legislature seemingly meant to make the statute inapplicable where First Amendment rights are possibly affected, even if the statute could validly restrict those rights.” Section 626.8’s language “suggests that it was intended to apply to manner rather than content of speech.”
Section 626.8 does not appear to criminalize behavior based on a listener’s reaction to the speech. The court concluded that § 626.8 does not apply to Center’s conduct in driving their trucks around School. The disruption came not from Center, but from the student’s reaction to the content of the speech.
The court further found that the defendants sued in their individual capacities, such as the Sheriff’s Deputies, were entitled to qualified immunity. To determine if an officer is entitled to qualified immunity, one must determine if the conduct of an officer violated a constitutional right, and “whether that right was clearly established in the context of [the] case.” Here, Center’s First Amendment rights were violated. However, the court determined that the officers could have made a reasonable mistake in determining that § 626.8 applied under the circumstances. The court determined that the officers have qualified immunity from the damages portion of Center’s action.
Center also asserted that the Deputy Sheriffs violated their Fourth and Fourteenth Amendment rights by unreasonably detaining them for 75 minutes. The court agreed concluding that neither § 626.8 or a search for any other code provision that may have been violated justified the Deputy Sheriffs in detaining Kulas and Padberg for 75 minutes.
Center also asserted that the Deputy Sheriffs violated their Fourth Amendment rights by improperly searching its security vehicle. The court concluded that the trial court erred in granting summary judgment in favor of the defendants on this cause of action because genuine issues of fact remain as to whether Kulas or Padberg consented to either one or two searches of the vehicle. Absent consent, the search conducted by the Deputy Sheriffs to determine whether the lights on the security vehicle were capable of activation intruded on Center’s Fourth Amendment rights.
The court, however, found that the deputies were not entitled to qualified immunity for the unreasonably lengthy detention of Kulas and Padberg or for the search of the vehicle. The Court of Appeals held that Center’s First and Fourth Amendment rights were violated and remanded the matter back to the federal district court for further proceedings.